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ADMINISTRACIÓN LOCAL
Y AUTONÓMICA
Local government
in the Member States
of the European Union:
a comparative legal perspective
INAP
INSTITUTO NACIONAL DE ADMINISTRACIÓN PÚBLICA
NATIONAL INSTITUTE OF PUBLIC ADMINISTRATION, SPAIN
LOCAL GOVERNMENT IN THE MEMBER STATES
OF THE EUROPEAN UNION:
A COMPARATIVE LEGAL PERSPECTIVE
LOCAL GOVERNMENT IN THE MEMBER STATES
OF THE EUROPEAN UNION:
A COMPARATIVE LEGAL PERSPECTIVE
Angel-Manuel Moreno
(editor)
Queda prohibida, salvo excepción prevista en la ley, cualquier forma de reproducción, distribución, comuni-
cación pública y transformación de esta obra sin contar con autorización de los titulares de propiedad intelec-
tual. La infracción de los derechos mencionados puede ser constitutiva de delito contra la propiedad intelec-
tual (arts. 270 y sigs. del Código Penal).
Edita:
INSTITUTO NACIONAL DE ADMINISTRACIÓN PÚBLICA
www.inap.es
ISBN: 978-84-7351-417-0 (formato papel)
ISBN: 978-84-7351-418-7 (formato electrónico)
NIPO: 852-11-030-4 (formato papel)
NIPO: 852-11-029-1 (formato electrónico)
Depósito Legal:
Preimpresión: Composiciones RALI, S.A.
Impresión: Publidisa
En esta publicación se ha utilizado papel reciclado libre de cloro de acuerdo con los criterios medioambien-
tales de la contratación pública.
TABLE OF CONTENTS
List of Authors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Chapter 1
Local Government in Austria, by Anna Gamper . . . . . . . . . . . . . . . . . 23
Chapter 2
Local Government in Belgium, by Michel Bouvier . . . . . . . . . . . . . . . 45
Chapter 3
Local Government in Bulgaria, by Alexander Vodenicharov . . . . . . . 69
Chapter 4
Local Government in Cyprus, by George Coucounis . . . . . . . . . . . . . 91
Chapter 5
Local Government in the Czech Republic, by Stanislav Kadečka . . . 111
Chapter 6
Local Government in Denmark, by Emil Greve . . . . . . . . . . . . . . . . . 135
Chapter 7
Local Government in Estonia, by Sulev Mäeltsemees . . . . . . . . . . . . . 157
Chapter 8
Local Government in Finland, by Olli Mäenpää . . . . . . . . . . . . . . . . . 185
Chapter 9
Local Government in France, by Robert Hertzog . . . . . . . . . . . . . . . . 203
Chapter 10
Local Government in Germany, by Dian Schefold . . . . . . . . . . . . . . . 233
Chapter 11
Local Government in Greece, by Nikolaos-Kmoninos Hlepas . . . . . . 257
7
table of contents
Chapter 12
Local Government in Hungary, by Zoltán Szente . . . . . . . . . . . . . . . . 283
Chapter 13
Local Government in Ireland, by Yvonne Scannell . . . . . . . . . . . . . . . 309
Chapter 14
Local Government in Italy, by Luciano Vandelli . . . . . . . . . . . . . . . . 339
Chapter 15
Local Government in Latvia, by Inga Vilka . . . . . . . . . . . . . . . . . . . . 365
Chapter 16
Local Government in Lithuania, by Diana Šėaparnienė and Aiste La-
zauskienė . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389
Chapter 17
Local Government in Luxembourg, by Jean Mathias Goerens . . . . . 411
Chapter 18
Local Government in Malta, by Kevin Aquilina and Isabelle Calleja . . 435
Chapter 19
Local Government in the Netherlands, by Ine Van Haaren-Dresens . 459
Chapter 20
Local Government in Poland, by Michał Kulesza and Dawid Sześciło . . 485
Chapter 21
Local Government in Portugal, by Pedro Costa Gonçalves and Ana
Raquel Moniz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 505
Chapter 22
Local Government in Romania, by Simina Tanasescu . . . . . . . . . . . . 533
Chapter 23
Local Government in Slovakia, by Milan Buček and Juraj Nemec . . . 555
Chapter 24
Local Government in Slovenia, by Franc Grad . . . . . . . . . . . . . . . . . 577
Chapter 25
Local Government in Spain, by Angel-Manuel Moreno . . . . . . . . . . . 599
Chapter 26
Local Government in Sweden, by Tom Madell . . . . . . . . . . . . . . . . . . 637
Chapter 27
Local Government in the UK, by Chris Himsworth . . . . . . . . . . . . . . 663
8
LIST OF AUTHORS
(by alphabetical order of their countries)
9
list of authors
He is, i.a., the vice chairman of the Public Law task group for the Legislation
Council of the Czech Government and a member of the legislative commission
of the Presidency of the Union of Cities and Municipalities of the Czech Re-
public. He has authored and co-authored several books and articles in the field
of administrative law, and has participated in significant international confer-
ences in that field.
DENMARK: Emil GREVE is PhD fellow at Aarhus University School of
Law, department of Public Law and International Law. Mr. Greve is currently
working on a thesis regarding the Danish Security and Intelligence Service.
Apart from researching, he has taught undergraduates at Aarhus University in
the discipline of case administration in the public authorities. He also provides
contributions on subjects like Human Rights, Freedom of Speech and Legal
Issues regarding Teenagers.
ESTONIA: Sulev MÄELTSEMEES is Professor and Chair of Local Self-
Government and Regional Policy (since 1997); Dean of the Faculty of Social
Sciences of Tallinn University of Technology (since 2004). Former Chairman
of the Tallinn City Council (1992-3), and Rector of the Estonian Institute of
Public Management (1993-7). Since 1998, Dr. Mäeltsemees is a full member of
the Group of experts on the ECLSG. He has also a long experience as legisla-
tion drafter on local self-government and regional management, which include,
i.a., the chapter on local self-government in the Estonian Constitution and vari-
ous other Legal Acts.
FINLAND: Dr. Olli MÄENPÄÄ has been professor of Administrative Law
at the University of Turku from 1982 to 1992 and has held the chair in the Uni-
versity of Helsinki since 1992. Former Dean of the Law Faculty (1998-2003),
he has served as a judge in the Supreme Administrative Court (1994 and 2006),
as Chair of the Council for Mass Media (1999-2003) and of several government
committees. His publications include works in judicial procedure in administra-
tive courts and European administrative law, among other fields.
FRANCE: Robert HERTZOG, doctor in law, is emeritus Professor of pub-
lic law at the University of Strasbourg, and the President of the French Society
of Public Finances; deputy city mayor for 19 years in the urban community of
Strasbourg; expert on local self-government with several international organi-
zations; professor at the ENA; Chairman for 14 years of the Council of INET
(national school for local government high ranking officials); member of differ-
ent national committees on University and Public administration. Research and
publication focus on taxes, public finances and government.
GERMANY: Dian SCHEFOLD, Dr. jur. (Basel 1961), Habilitation (Berlin
1970), 1970-1980 Professor of Public Law, Free University of Berlin (West),
1980-2001 Professor of Public Law, University of Bremen (Germany), Visiting
Professor in many Italian universities. Member and vice-president of the Group
of experts on the ECLSG of the Council of Europe (2001-2011).
10
list of authors
11
list of authors
12
list of authors
13
FOREWORD
15
foreword
16
foreword
parability, all national contributions develop the same structural pattern, and
have the same headings or sections. This has been possible because I asked the
authors to frame their individual chapters around a uniform «table of contents»,
which I circulated and which was overall accepted by them. Of course, they
were free to articulate the content of each heading as they deemed appropriate.
Therefore, all the chapters address the key or essential elements of local
self-government in every country, those legal ingredients that may be identified
as the «core» aspects of local autonomy. Deliberately, and as stated above, the
authors do not analyse sociological issues, or other legal aspects within the lo-
cal government regime which are not connected, in one way or another, with
local autonomy.
Every chapter first presents a brief evolution of local self-government in the
analysed country. This exercise is very important to understand correctly some
historical and cultural patterns. Many sharp differences appear in this field. In
some EU countries, local government is a structural element of the social and
political evolution of the country, while in others this is a brand-new phenom-
enon (like in Malta). As concerns the 20th century, many countries saw local
government reduced or even annihilated by centralists dictatorships (from
Spain to Bulgaria, from Slovak republic to Lithuania). As a rule, nowadays the
existence of local self-government is a common feature of all the member states
of the EU, and it is recognised in the Constitutions of most of these countries,
with the notable and understandable exception of the UK, although the notion
is enshrined in the political culture of the country. Key prospective trends (i.e.,
legislative proposals, reform packages) and hot issues or on-going debates are
also mentioned.
The second section of each chapter endeavors to present in a short and clear
way the «recipients» or «subjective owners» of local autonomy. Which are the
units and levels of local government, which are the names of the local authori-
ties and bodies (first tier, second and third tier, if applicable) in the official/na-
tive language, with an approximate translation in English (towns, cities, prov-
inces, counties, parishes, etc). Here, the reader will be able to see the strong
influence of the French word «commune» in different countries to identify the
basic human settlement, although in this book it has been substituted by the
(more English) word «municipality», which is neutral.
The reader will be able to see the sharp differences existing throughout the
EU in terms of number, size and average population of local authorities. The
extremes are, on the one hand, France (with more than 36,000 municipalities)
and the Nordic and Baltic States (and the UK) on the other. Most authors agree
that the process of amalgamation or fusion of municipalities is far from easy,
and it has failed many times.
Third, each chapter identifies and briefly describes the current, basic legal
framework of local government and local autonomy. In this section, the Euro-
17
foreword
18
foreword
structures established for cooperation are presented and discussed. The trend of
inter-municipal is of foremost importance in the current situation, and some
countries (such as France) show an impressive record in this field.
Next, the human resources of local authorities are examined. In some coun-
tries, the different kinds of public employees are considered to be «administra-
tive» civil servants enjoying a special legal status, while in others they are
treated just like any other employees in the private sector. Most countries,
though, combine the two perspectives. As a rule, local authorities have the
power to select and to manage their own human resources. In some countries
(Belgium, Italy, Spain,) there are special types of local employees who are se-
lected or recruited by central/regional governments and who perform (as
«clerks» or «secretaries»), key and exclusive functions in day-to-day local ac-
tivities.
A study like the present one could not omit the analysis of the financial re-
sources of local authorities. If there is an element which provides a real assess-
ment of the actual depth of local autonomy, this is local government finance,
for without financial means the exercise of competences is rendered an illusion.
Thus, the experts present in a concise way how local authorities are funded in
their countries. The basic sources of income are enumerated: taxes and charges
that can be collected by them; transfers from the regional/state government or
from the EU; grants; fines, sale of products or assets, etc. Where possible, these
sources are also quantified or appraised in terms of their sufficiency. Most local
authorities have taxing powers, but, as a rule, they cannot establish taxes freely,
since this is done via a piece of legislation from the state/Land/regional parlia-
ment. In many cases, local authorities may fix the rate of «local taxes», while
in others this is not legally possible. The relative importance of transfers from
regional/Land/state government is also considered. In this area, the result is, at
least, improvable, as in most countries (with the notable exception of the Nor-
dic ones) grants constitute a key or decisive source of income. As long as these
grants are conditioned or «earmarked», this fact signifies an actual reduction of
local autonomy. Unfortunately, the financial health of local authorities is poor
throughout the EU. In many countries, and in spite of prudential rules laid down
in general statutes, local authorities have accumulated an important debt and
are in situations of severe deficits. This could have strong implications for the
short-term survival of some forms of local authorities.
Section eight of each chapter has a look into the property and assets of local
authorities, also an important tool for the carrying out of so many local policies
and services. As a rule, local authorities are entitled to have property. The au-
thors have identified the most usual types of assets and properties of local au-
thorities in their nations. In some countries, local government property is regu-
lated by a special legal regime (along the lines of the «domaine public» in the
French legal tradition) while in others general private or civil law applies, with
some Public-law corrections.
19
foreword
20
foreword
Angel-Manuel MORENO
Arenas de San Juan (Spain) December 2011
21
Chapter 1:
LOCAL GOVERNMENT IN AUSTRIA
Anna GAMPER
1
Neuhofer: Gemeinderecht2 (1998) 2 et seq.
2
The Austrian Federal Constitution consists of a main document, i.e. the Federal Constitu-
tional Act (Bundes-Verfassungsgesetz, hereinafter B-VG), but also of a number of additional
federal constitutional acts, single federal constitutional provisions within ordinary federal laws
and several laws dating back to the former Austro-Hungarian monarchy (until 1918), which, in-
cluding certain state treaties, were given the status of federal constitutional law. The number of
these additional sources of constitutional law has been reduced considerably (see BGBl I 2008/2).
3
Paradigmatically, Sec. 40 para. 1 of the Constitution of South Africa: «In the Republic,
government is constituted as national, provincial and local spheres of government which are
distinctive, interdependent and interrelated».
23
anna gamper
4
Steytler (ed): The place and role of local government in federal systems (2005); Blinden-
bacher/Pasma(eds): Dialogues on Local Government and Metropolitan Regions in Federal
Countries (2007); Gamper: «Die Stellung der Gemeinden im Vergleich europäischer Bundes-
staaten« in: Europäisches Zentrum für Föderalismus-Forschung Tübingen (ed): Jahrbuch des
Föderalismus 2006 (2006) 66 (77).
5
Steytler, «Introduction», in: Steytler (ed): The place and role of local government in fed-
eral systems (2005) 8; Weber, Bundesstaat 415.
6
Cf. Forderungsprogramm zur Stärkung der Gemeinderechte in der österreichischen Verfas-
sung (22/AVORL-K), http://www.konvent.gv.at/K/DE/AVORL-K/AVORL-K_00022/pmh.shtml.
7
See www.bka.gv.at/site/5732/default.aspx.
8
Bußjäger: «Die Rückkehr zur Normalität – Österreich ein Jahr nach dem Konvent«, in:
Europäisches Zentrum für Föderalismus-Forschung Tübingen (ed), Jahrbuch des Föderalismus
2006 (2006) 370.
24
local government in austria
9
Neuhofer, Gemeinderecht, 58 et seq.; Oberndorfer, Allgemeine Bestimmungen des Ge-
meinderechts, in: Klug/Oberndorfer/Wolny (eds), Das österreichische Gemeinderecht (2008)
marg. no. 71.
10
See the terminology in Art. 117 para. 1 b) («City Senate« instead of «Local Board«) or
Art. 117 para. 7 B-VG («Magistrat» instead of «Local Office»).
25
anna gamper
est judicial body), must be placed directly before the Constitutional or Adminis-
trative Court, rather than before the supervisory authority.
Another asymmetry is provided by Art. 127a para. 1 and 3 B-VG according
to which, municipalities with at least 10,000 inhabitants are subject to audits
performed by the Court of Auditors, whereas smaller municipalities must be
audited only under very restricted conditions. Until a recent federal constitu-
tional amendment (BGBl I 2010/98), it was a prerequisite that a municipality
have 20,000 inhabitants to conduct a general audit. Finally, the «principle of
municipal uniformity» does not apply to fiscal equalisation since municipalities
receive different revenues depending on the number of inhabitants (see below).
Furthermore, Art. 120 B-VG provides a possible basis for the future estab-
lishment of so-called «regional municipalities» (Gebietsgemeinden) pending a
constitutional amendment. Unlike the district administrative agencies that are
headed by an appointed senior civil servant with legal qualifications, the «re-
gional municipalities» require directly elected authorities – an idea, which has
been repudiated as a «politicization» of administration.11
11
Kahl, Art. 120 B-VG, in: Rill/Schäffer (eds), Bundesverfassungsrecht (2006).
12
See the hansard in GP XVII RV 90 AB 184 p. 25.
13
However, this goes hand in hand with a reduction of regional power to shape local govern-
ment (Gamper, Stellung 80).
26
local government in austria
14
See Art. 116a para. 2, Art. 118 para. 7 and Art. 119a para. 3 B-VG.
15
Koja, Das Verfassungsrecht der österreichischen Bundesländer (1988) 430 ff.
27
anna gamper
28
local government in austria
16
There are 2 types of agreements under Art 15a B-VG: between the Federation and the
Länder, and between different Länder.
29
anna gamper
although they were allowed in 2011 to enter into formal agreements with the
municipalities of their own Land, if a Land law permits them to do so (BGBl I
2011/60), or with those of other Länder, if the concerned Länder conclude a
specific agreement under Art. 15a B-VG.
With regard to the involvement of municipalities in agreements under Art.
15a B-VG, however, two exceptions were made: the Agreement on a Consulta-
tion Mechanism and the Agreement on an Austrian Stability Pact, allowing
municipalities to be empowered by a specific federal constitutional law to con-
clude agreements with the federation and the Länder.17 The consultation mech-
anism basically provides that if one tier intends to enact a law that would im-
pose costs on one of the other tiers, the latter will have to be informed in
advance. If an agreement cannot be reached in consultation talks – which take
place between representatives of all three tiers –, the tier that generates the costs
will have to bear them.18
On the other hand, the Austrian Stability Pact obliges municipalities to
maintain balanced budgets and the Länder to reach a budgetary surplus, where-
as the federation must not exceed a certain deficit.19 Moreover, Art. 13 para. 2
B-VG obliges the federation, the Länder and the municipalities to strive for
sustainable budgets and to coordinate them among each other.
According to Art. 116 para. 1 B-VG, municipalities are not merely admin-
istrative units, but also autonomous bodies with the right to self-government.
Local self-government denotes the right and the ability of local authorities,
within the limits of the law, to regulate and manage a substantial share of
public affairs under their own responsibility and in the interests of the local
population. In addition to their autonomous powers (Art. 118 B-VG) the mu-
nicipalities are responsible for a number of delegated functions (Art. 119
B-VG). If the municipalities perform functions within their autonomous
sphere, they cannot be bound to instructions from federal or Länder authori-
ties, although they are subject to their supervision.20 Within their delegated
sphere of functions, however, they are bound to instructions given by these
authorities.21
17
Weber, «BVG Gemeindebund«, in: Korinek/Holoubek (Hg), Österreichisches Bundesver-
fassungsrecht (2000).
18
Bußjäger, Rechtsfragen zum Konsultationsmechanismus, ÖJZ 2000, 581.
19
Schäffer, Konsultationsmechanismus und innerstaatlicher Stabilitätspakt, ZÖR 2001,
145.
20
Oberndorfer, Bestimmungen marg. no. 61 et seq.; Neuhofer, Gemeinderecht 225 et seq.
21
Oberndorfer, Bestimmungen marg. no. 115 et seq.; Neuhofer, Gemeinderecht 316 et seq.
30
local government in austria
22
See VfSlg 6944/1972, 8719/1979. An exception to this rule is the private sector where the
municipality does not require explicit authorisation (Art. 116 para. 2 B-VG; see VfSlg
17.557/2005). Another exception is the so-called «local police regulation» (ortspolizeiliche
Verordnung): According to Art. 118 para. 6 B-VG, the municipality is entitled, in matters pertain-
ing to the autonomous sphere of local functions, to issue local police ordinances on its own ini-
tiative for the prevention of imminent or existing nuisances interfering with local communal life
as well as to declare non-compliance with them an administrative contravention. Such ordi-
nances, however, even though they may be issued directly on the basis of Art. 118 para. 6 B-VG
without an intermediate law, must not contravene federal or Land legislation.
23
Only the aforementioned ortspolizeiliche Verordnung does not require to be based on an
ordinary law.
31
anna gamper
authorities and local civil servants, local security, traffic, market, and building
police, local fire control, public decency, local sanitary police etc. This is not an
exhaustive list, but it acknowledges the most important fields included with the
general clause.
According to Art. 119 para. 1 B-VG, the delegated sphere of local functions
includes the non-autonomous tasks that municipalities must perform in adher-
ence to the federal and Länder laws that delegate these tasks to them. The mu-
nicipalities are subject to instructions given by federal or Länder authorities.
Within the general framework of the Federal Constitution, the competent legis-
lature is responsible for determining whether or not an administrative task is
delegated to the municipalities. In contrast to the tasks assigned to the munici-
palities’ autonomous sphere, the Federal Constitution neither enumerates the
tasks falling into the delegated sphere nor establishes them in a general clause.
With regard to delegated functions, municipalities have not the right to self-
government, and serve as mere administrative units.
Municipalities may be obliged by law to deliver public services that are of
essential interest to the local community. Examples include sewage systems,
energy supply, public traffic control or waste disposal. General constitutional
limitations, such as the principles of equality, proportionality and efficiency
must be observed, though. Municipalities are also bound by the general fiscal
rule that the revenue derived by a territorial body from fiscal equalization must
be used towards the execution of the functions required of that body.24
Under Art. 117 B-VG, the basic authorities of each municipality must in-
clude the local council (Gemeinderat), a representative body elected by those
entitled to vote in the municipality, the local board (Gemeindevorstand), also
known as the city council (Stadtrat) or the city senate (Stadtsenat) in towns
with their own statute, and the mayor (Bürgermeister). The local council and
the local board are multi-member bodies, whereas the mayor is a monocratic
organ. Länder legislation may establish other local authorities25 or authorize
municipalities to do so. Länder legislation may also provide more detailed rules
on the specific functions of local authorities. Also, the Local Government Acts
and Town Statutes commonly contain such provisions.
Details concerning the organisation and competences of local authorities
depend on the respective Local Government Act or Town Statute of a Land,
24
Neudorfer, Zur Zulässigkeit kommunaler Pflichtaufgaben im Bereich der Daseinsvorsor-
ge, JBl 2010, 352.
25
Such as the local office (Gemeindeamt, Stadtmagistrat), the chief magistrate (Ortsvorste-
her), specific commissions, etc.
32
local government in austria
and these rules differ from Land to Land. In practice, the local council and the
mayor are the most important organs. The local council is a general representa-
tive body, which, as the Federal Constitution stipulates, is elected by all local
citizens, also including resident citizens of other EU Member States, entitled to
vote according to the principles of equal, direct, secret and personal suffrage on
a proportional basis.26 Participation of Austrian or other EU citizens in local
elections is determined by specific Elections Acts and by the length of resi-
dency (not their principal domicile) in a municipality.27 The number of mem-
bers of the local council varies according to the number of inhabitants in the
municipality within the same Land, or from Land to Land.
The local council is not a parliamentary body, because it has no legislative
powers. It merely represents the citizens of a sub-state entity, but it is competent
to deliberate and decide on a wide range of issues pertaining to the autonomous
sphere, including budgetary matters. Art. 118 para. 5 B-VG stipulates that the
mayor, the members of the local board and appointed local officials are respon-
sible to the local council for the performance of their functions within the mu-
nicipality’s autonomous sphere. The local council serves as the supreme local
body that oversees the functions exercised in the autonomous sphere. Although
this is not expressly stipulated by the Federal Constitution, the Local Govern-
ment Acts of the Länder regularly vest the local council with residuary compe-
tence to perform all tasks that no other body is explicitly competent to perform.28
The mayor is the authority that represents a municipality externally, particu-
larly in regard to private law matters. If the mayor performs administrative
tasks pertaining to the municipality’s autonomous sphere, he is responsible to
the local council (Art. 118 para. 5 B-VG). Tasks pertaining to the delegated
sphere of municipalities generally must be performed by the mayor (Art. 119
para. 2 B-VG) but can be delegated to other local authorities. The mayor main-
tains his responsibility in certain kinds of matters pertaining to the delegated
sphere of local functions because of their factual connection with actions per-
taining to the municipality’s autonomous sphere. The delegated authorities
must heed the instructions of the mayor. As a rule, the mayor is the president of
the local council and the local board, as well as the head of the local mayor’s
office and local civil servants.
Originally, the Federal Constitution had not explicitly allowed for direct
election of the mayor. Land legislation that provided for such a system was
26
Stolzlechner, Art. 117 B-VG, in: Rill/Schäffer (eds), Bundesverfassungsrecht (2010) marg.
no. 9 et seq.; Gamper, Europäischer Citoyen und europäisches Wahlrecht, in: Gamper (ed), Ent-
wicklungen des Wahlrechts am europäischen Fallbeispiel (2010) 3 (6 et seq.); Pernthaler, Bun-
desstaatsrecht 115 et seq.
27
Oberndorfer/Trauner, Gemeinderatswahlen, in: Klug/Oberndorfer/Wolny (eds), Das
österreichische Gemeinderecht (2008) marg. no. 83 et seq.
28
Steiner, Rechtsstellung und Aufgaben der Gemeindeorgane, in: Klug/Oberndorfer/Wolny
(eds), Das österreichische Gemeinderecht (2008) marg. no. 41.
33
anna gamper
29
VfSlg 13.500/1993.
30
BGBl 1994/504 (cf. also Novak, Bürgermeister-Direktwahl [1995]).
31
Burgenland, Carinthia, Salzburg, Tyrol, Upper Austria, and Vorarlberg.
32
VfSlg 17.264/2004.
33
Weber, Interkommunale und überörtliche Zusammenarbeit in Österreich: Verfassungs-
rechtliche und institutionelle Grundlagen, in: Gamper (ed), Interkommunale Zusammenarbeit
und überörtliche Raumplanung (2007) 131.
34
local government in austria
law (Gemeindeverbände).34 The latter is regulated by Art. 116a B-VG35: The mu-
nicipalities themselves may initiate inter-municipal associations, under certain
conditions, with the approval of the respective Land. Approval is granted by reg-
ulation if there is a lawful agreement between the municipalities and if the execu-
tion of tasks, particularly those pertinent to public administration, will not jeop-
ardise the municipalities’ functions as self-governing bodies or their rights. The
association is conceived as means of ensuring expediency, economic efficiency,
and thrift in the interest of the municipalities concerned.
Apart from the «voluntary» inter-municipal association, the federation and
the Länder may also establish these associations by law, to expedite the execu-
tion of local matters, as long as this will not endanger the functioning of mu-
nicipalities as self-governing units and as administrative entities. Moreover, the
participating municipalities must be heard before such an obligatory associa-
tion is established. They must also be granted sufficient authority in the per-
formance of the joint tasks assigned to their autonomous sphere. Since a fed-
eral constitutional amendment passed in 2011 (BGBl I 2011/60), inter-municipal
cooperation has been facilitated to some extent (see above).
All Länder (except Vienna and other towns with their own statute) have
enacted legislation that draws a clear distinction between the local executive
bodies and the local office. Article 117 para. 7 B-VG stipulates that the local
office must perform «local business». This provision should not be interpreted
as meaning that the local office will be given authority. Basically, it means that
the local office will assist local authorities in performing «local business»,
meaning all local tasks, regardless of whether they pertain to public administra-
tion, private law, or the autonomous or delegated sphere of local functions. The
local office staff includes civil servants as well as public employees on con-
tract. All local government acts recognize the mayor as the statutory head of
local administrative services, although an internal director of administration
may be appointed as senior officer in charge to ensure efficient management of
local business (with responsibility over the municipal staff). The senior officer
is directly accountable to the mayor. Article 117 para. 7 B-VG requires that the
senior officer of a Magistrat, which is the name of the local office in towns with
their own statute, must be an academic with legal training.
The local government acts differ as to details. Depending on the number of
local citizens, most acts stipulate that the director of administration should be a
34
Havranek/Kemptner: Interkommunale Zusammenarbeit durch Gemeindeverbände und
Verwaltungsgemeinschaften, in: Klug/Oberndorfer/Wolny (eds), Das österreichische Gemeinde-
recht (2008); Neuhofer, Gemeinderecht 549 et seq.
35
Stolzlechner, Art. 116a B-VG, in: Rill/Schäffer (eds), Bundesverfassungsrecht (2001).
35
anna gamper
As mentioned before, the B-VG does not regulate fiscal relations. Article 13
B-VG explicitly refers to the Fiscal Constitutional Act (Finanz-Verfassungsge-
setz, hereinafter F-VG; BGBl 1948/45 as amended by BGBl I 2007/103), which
is a constitutional law. Pursuant to § 2 F-VG, municipalities must cover the
expenses generated by the performance of their tasks, regardless of whether
they belong to the autonomous or delegated sphere of functions, unless federal
or Länder laws stipulate otherwise. These laws, however, must not contravene
§ 4 F-VG, which embodies the principle of fiscal equality. It also obliges fed-
eral or Länder laws to heed the limits of efficiency of each territorial entity and
the distribution of public tasks between them.37
Pursuant to § 6 F-VG, municipalities are entitled to levy exclusive local
taxes or share joint taxes with the federation and/or the Länder according to
various distribution schemes. According to § 7 F-VG, it is the competence of
the federal legislature to regulate shared federal taxes, declare specific taxes as
exclusively local taxes and to authorize municipalities to levy certain taxes
36
Wolny/Kliba, Struktur und Aufgaben des Gemeindeamtes (Magistrates), in: Klug/Obern-
dorfer/Wolny (eds), Das österreichische Gemeinderecht (2008) marg. no. 5 et seq.
37
Ruppe, § 4 F-VG, in: Korinek/Holoubek (eds), Österreichisches Bundesverfassungsrecht
(2000).
36
local government in austria
38
Wolny/Rader, Gemeindefinanzen, in: Klug/Oberndorfer/Wolny (eds), Das österreichische
Gemeinderecht (2008) marg. no. 101 et seq.
39
Wolny/Rader, Gemeindefinanzen marg. no. 17.
40
Pernthaler, Bundesstaatsrecht 397 et seq.
41
VfSlg 12.505/1990;12.832/1991; 15.039/1997; 16.849/2003. Cf. Ruppe, § 4 F-VG marg.
no. 4 et seq.
37
anna gamper
In accordance with § 15 FAG, exclusive local taxes, such as real estate tax,
communal tax, secondary residence tax, entertainment tax, fishing and hunting
tax, the tax for keeping animals, for parking cars and several fees for the use of
local facilities, may be established freely by the local council (although within
a certain framework of percentages set by § 15 FAG). Land legislation may
further extend the municipalities’ tax autonomy.
In 2009, the Austrian municipalities’ (without Vienna) share in financial
equalisation amounted to a total of 8,111 million Euros whilst Vienna received
5,540 million Euros. As a part of this total amount, the municipalities (without
Vienna) received 4,741,567,000 Euros from joint federal taxes, whilst Vienna
received 2,551,504,000 Euros as a Land and 1,876,361 Euros as a municipality.42
These figures show that the major part of local finances is derived from shares
in joint federal taxes or from allotments made in accordance with specified re-
quirements. Among autonomous local taxes, the real estate tax is very impor-
tant, so municipalities would now like the federal law-makers to increase it, as
their shares in the joint federal taxes decrease.
Since municipalities are entitled to possess their own property and to run
economic enterprises as legal entities under private law, part of their finances,
the amount of which differs greatly from municipality to municipality, are de-
rived from their private law-related activities.43
42
Official statistical data provided by www.statistik.at.
43
Wolny/Rader, Gemeindefinanzen marg. no. 128 et seq.
44
Binder, Wirtschaftsunternehmen der Gemeinde, in: Klug/Oberndorfer/Wolny (eds), Das
österreichische Gemeinderecht (2008).
45
Oberndorfer, Bestimmungen marg. no. 154 et seq.; Neuhofer, Gemeinderecht 472 et seq.
38
local government in austria
the local council that disposes of local property, although the competence
sometimes may be split between several local authorities, depending on the
value of an asset or if is movable or immovable. If the transfer of a given
property surpasses a certain value, approval from the supervisory authority
must be obtained.
46
Kahl, Art. 119a B-VG, in: Rill/Schäffer (eds), Bundesverfassungsrecht (2007) marg. no.
21 et seq.; Hauer, Gemeindeaufsicht, in: Klug/Oberndorfer/Wolny (eds), Das österreichische
Gemeinderecht (2008) marg. no. 57 et seq.; Neuhofer, Gemeinderecht 333 et seq.
39
anna gamper
47
Kucsko-Stadlmayer, Art. 148a B-VG, in: Korinek/Holoubek (eds), Österreichisches Bun-
desverfassungsrecht (2009) marg. no. 13.
48
See Art. 59 of the Tyrolean Constitution and Art. 59 et seq. of the Vorarlberg Constitution.
40
local government in austria
latter case, the municipality may even claim the constitutionally guaranteed
right to local self-government.49 Moreover, a municipality may challenge the
regulation of a supervisory authority before the Constitutional Court, if the
regulation illegally abolishes a local regulation based on alleged illegality.
These constitutional remedies are also mentioned in the Land Local Govern-
ment Acts. A municipality can directly challenge any federal or Land regula-
tion or law before the Constitutional Court (any private person may also file a
case of direct infringement of rights), if it violates its right to local-self govern-
ment insofar as the regulation deprived the municipality of an autonomous task
by either assigning it to the municipality’s delegated sphere or to a federal or
Land authority instead of a local authority.
The Austrian members of the Committee of the Regions are proposed by the
Federal Government at the suggestion of the Länder, the Austrian Federation of
Municipalities and the Austrian Federation of Towns. Nine out of twelve Aus-
trian members are proposed by the Länder, and the remaining three may be
nominated jointly by the two municipal associations.50
According to Art. 23d B-VG, the federation must diligently inform the mu-
nicipalities about EU projects, if these affect their autonomous sphere of action
or other important interests. In this context, the Austrian Federation of Munici-
palities and the Austrian Federation of Towns are explicitly and specifically
empowered to represent the municipalities, although Art. 115 para. 3 B-VG
empowers both associations to represent their interests. Unlike the Länder, nei-
ther of these associations nor the individual municipalities have any formal
rights to bind the Austrian representative to the EU Council to their statements.
While the Land Parliaments are now authorised to receive information about
draft EU legislation and to present the Federal Council with a statement as to
whether they find the draft in accordance with the principle of subsidiarity
(BGBl I 2010/57), the municipalities have not been given this right.
Municipalities often profit from EU structural funds that are coordinated by
the Länder in Austria (e.g. with regard to urban development). Their informal
cooperation (e.g. city twinning) with neighbouring municipalities from other
EU Member States could be formalized and made more systematic within the
framework of a European Grouping of Territorial Cooperation51. It has required
a federal constitutional amendment performed in 2011 to permit inter-munici-
49
Oberndorfer, Bestimmungen marg. no. 172 et seq.
50
Öhlinger, Art. 23c B-VG, in: Korinek/Holoubek (eds), Österreichisches Bundesverfas-
sungsrecht (1999) marg. no. 9.
51
Regulation (EC) No 1082/2006 of the European Parliament and of the Council of 5 July
2006 on a European grouping of territorial cooperation (EGTC), OJ 2006 L 210/19.
41
anna gamper
VfSlg 9336/1982
VfSlg 13.235/1992
VfSlg 13.500/1993
VfSlg 15.302/1998
VfSlg 15.938/2000
VfSlg 18.446/2008
VfGH G276/09, 11.3.2010
12.2.1. Books
Pernthaler, Peter & Gamper Anna: Local Government in Austria, in: Nico
Steytler (ed), The Place and Role of Local Government in Federal Systems,
Johannesburg (Konrad-Adenauer-Stiftung) 2005, 65.
Gamper, Anna: Die Stellung der Gemeinden im Vergleich europäischer
Bundesstaaten, in: Europäisches Zentrum für Föderalismus-Forschung
Tübingen (Hg), Jahrbuch des Föderalismus 2006, Baden-Baden (No-
mos) 2006, 66.
Klug, Friedrich; Oberndorfer, Peter & Wolny, Erich (eds): Das österreichis-
che Gemeinderecht, Vienna (2008).
Neuhofer, Hans: Gemeinderecht, Vienna/New-York (1998).
Österreichischer Gemeindebund (ed): 40 Jahre Gemeindeverfassungsnovelle
1962: Aktuelle Rechtsfragen und Entwicklungen der kommunalen Selb-
stverwaltung, Vienna (2002).
42
local government in austria
12.2.2. Journals
43
anna gamper
44
Chapter 2:
LOCAL GOVERNMENT IN BELGIUM*
Jacques BOUVIER
*
Translation from the original manuscript in French by Angel-Manuel Moreno.
45
jacques bouvier
46
local government in belgium
ital) and three «Communities» (the French linguistic community, the Flemish lin-
guistic community and the German-speaking linguistic community).
The organization of these three constitutional cogs and the determination of
their powers are settled either by the Constitution or by statutes adopted with a
special parliamentary majority («organic statutes», lois organiques), which can
be qualified as «para-constitutional laws». This dismemberment of the powers of
the Belgian state has a fundamental importance as regards the local powers: under
the new system of federalism and the process of devolution, the three mentioned
Regions (Flanders, Wallonia and Brussels-capital) became competent to regulate
all matters dealing with the so-called «subordinate powers», that is, provinces and
municipalities. This regulatory power in the hands of the Regions covers, among
others, the following aspects of the legal regime of local authorities: (a) their
composition, organization, competences and functioning; (b) the change or the
rectification of their territorial limits; (c) the composition, the organization, the
competences and the functioning of the institutions of the agglomerations and
federations of cities; (d) the election of the provincial, municipal and intra-munic-
ipal organs; and (e) the disciplinary regime of the mayors (bourgmestres).
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jacques bouvier
inces will be organized and regulated in a different way in Flanders and in Wal-
lonia (as there is no province within the Region of Brussels-capital). In the light
of this legal variety, it is thus possible to find differences even in terminology, as
we shall find that municipalities can be called cities (villes) or towns (communes).
This is mainly a symbolic difference, whose origin goes back to the Dutch regime
(1815-1830), a time when this diverse names served at making a difference be-
tween rural and urban local authorities.
The relations between provinces and municipalities are hardly regulated in
the Constitution, which confines itself to providing that provinces manage the
provincial interests, while municipalities do run the municipal interests. This
constitutional wording allows supporting the view that there is no supremacy of
one type of local authorities over the other, or that there is even an organic link
among them, whatsoever. A logical way of legal thinking, though, requires to
understand that the municipal administrative regulations do respect the provin-
cial administrative regulations, and that they do not oppose them.
On the other hand, from 1836 the municipal legislation granted the provinces
an important role in the administration of the municipalities, and more specially
a role of administrative supervision (tutelle). Most frequently, this supervision
consisted of a kind of «first-line» role (suspension of municipal decisions, ob-
ligatory reports and opinions, etc.) while the definitive decision corresponded to
the national government. This type of role of provinces in the municipal life is
still maintained in the Walloon and Flemish municipal legislations.
Last but not least, it is important to stress that, although Belgium is institution-
ally articulated around the local powers represented by municipalities and prov-
inces, an important part of the management of local interests is ran by «third-
type» institutions, namely the inter-municipal associations, the public centers of
social action, the areas of police, and even the intra-municipal organs. The latter
represent a real and further decentralization of the municipal organs towards in-
tra-municipal organs, in order to compensate, in certain entities, for the too big
concentration of powers that has arisen from the mergers of municipalities.
Belgium was one of the countries which allowed the opening for signature
of the ECLSG from 1985. However, the charter was only ratified by the Bel-
gian federal legislator several years later, namely by means of an Act of June
24th, 2000. This piece of legislation did not get published in the national Offi-
cial Journal ( Le moniteur Belge, in French; in Flemish: Belgisch Staatsblad; in
German: Belgisches Staatsblatt) until August 25th, 2004, after the ratification
of the text by the various competent legislative organs in Belgium. The charter
came into effect on December 1st, 2004.
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local government in belgium
49
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50
local government in belgium
1
«fait l’objet d’interprétations laxistes. L’ensemble des communes bruxelloises accueille
des institutions politiques et administratives qui relèvent de l’exécutif au niveau fédéral».
(Delpérée: Le système constitutionnel de la Belgique, Larcier 1998, page 104).
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jacques bouvier
Indeed, these two areas of activities are obviously essential as regards the
competencies of the provincial and municipal organs. However, it must be no-
ticed that neither the ordinary legislation nor the Constitution define the content
of those key concepts in a general way. Accordingly, one could speak of «un-
named» competencies, by extension of the equivalent expression used in Civil
Law. In reality, the competencies pertaining to the municipal or provincial in-
terest are essentially defined by default, or in a residual manner. The compe-
tence will fit either the municipal or the regional level when the subject – matter
concerns the territory and the citizens of the municipality or those of the prov-
ince, as long as the «legislator» (either the federal, the regional or the commu-
nity one) will not have assumed the matter in a total or partial manner. In this
sense, the organization and the management of the police is an example of a
subject matter which is clearly of municipal interest, but which has been re-
cently re-conceptualized as being of «federal interest». This demonstrates that
the rule of the «provincial» or «municipal» interest is not enough to determine
the existence of a «local» competence, per natura.
Another conceptual element concerns the «attributed» competencies. Al-
though local authorities may get competences and carry out activities of mu-
nicipal or provincial interest that have not being retained by the other territo-
rial levels of government, it happens more regularly than these other levels of
power attribute or grant expressly certain competencies to the municipal au-
thorities. Thus, these competences will be «attributed» (Compétences at-
tribuées ) to the municipal authorities, either: (a) because they are considered
by the delegating authority (the federation, the region or the linguistic com-
munity) as touching the sphere of the municipal interest; or (b) because the
delegating authority understands that the competence will be managed in a
more effective way at the local level. In the case of «attributed» competen-
cies, the local authority will behave either as a decentralized or a de-concen-
trated authority, according to the wording of the delegating legal instrument
and according to the level of precision which will be given by the delegation
so granted.
4.2. Powers
Both provincial and municipal bodies enjoy the legal nature of «public law
authorities». Accordingly, they hold as such a wide array of powers and pre-
rogatives, both in the domain of regulation and in the domain of administrative
adjudication and decision on individual affairs.
As concerns the rule-making powers of local authorities, both the pro-
vincial and municipal authorities have in Belgium the capacity to adopt
regulations (règlements), that is, legal rules which regulate general and ab-
stract matters, rules of social behaviour for the present and for the future, to
use here the traditional definition of the Belgian Council of State (Conseil
52
local government in belgium
d’Etat). However, the rule-making powers of local authorities can only be ex-
ercised in the regular domain of the management of the municipal interest when
the local bodies discharge competences that have been attributed explicitly to
them. Among the different fields were administrative, municipal regulation are
usual stand the following ones:
(a) The adoption of regulations in the domain of general administrative po-
lice;
(b) Regulations in areas of «special» administrative police (in French, po-
lice administrative spéciale) such as town planning, environmental pro-
tection, etc;
(c) Regulations concerning the legal status of the staff of the local au-
thority;
(d) Regulations in the domain of municipal taxes and other local fiscal
questions.
Apart from rule-making powers, and like the majority of governmental
agencies in most countries, municipalities and provinces enjoy a wide array of
adjudicatory powers. Therefore, and in the same subject-matters that have been
mentioned earlier, provincial and municipal authorities can adopt administra-
tive decisions (actes administratifs ) concerning questions such as the manage-
ment of the staff, the management of the assets and goods of the local authority,
the management of the territory or the behavior and the activities of the citi-
zens. On the other hand, and since Belgium is a country of Administrative law
tradition, municipal and provincial authorities have the power to impose sanc-
tions to individuals and firms, whenever they breach the local regulations by its
capacity to decide imposing «administrative penalties». These administrative
penalties will be decided either by the political organs of the local authority, or
even just by local civil servants.
The services that can be delivered by provinces and municipalities are enor-
mously varied. As a rule, they can be sorted into two classifications: (a) «com-
pulsory» or «optional» services, and (b) being of provincial or municipal initia-
tive or being attributed by another level of government (the federation, the
regions, etc.). In this domain, it is interesting to stress that, in an exceptional
way, the constitution itself entrusts municipalities with the activity of writing
the certificates of marital status (actes d’état civil) and the keeping of the public
register of births, marriages and deaths.
Besides, the municipal legislation imposes on cities and towns broad obliga-
tions of general administrative police, in order to guarantee the rest, the safety of
transit, the healthiness and the cleanliness of the local community. This attribu-
tion of responsibilities result from decrees adopted during the old French revolu-
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jacques bouvier
tionary times (1789-1790). Under the law it is clear that this allocation of respon-
sibilities is of a compulsory nature. Therefore, when municipalities fail to ensure
these obligations, they can be condemned by the courts to compensate for the
harmful consequences of their negligence or lack of action. On the other hand,
this general obligations on the side of local authorities entail an important dedica-
tion of means, both financial and human resources, particularly in the domain of
the management of the networks of public roads and the public spaces.
Next to it, a wide field of activity is reserved for municipalities in specific
and important areas, such as land use & town planning and environmental pro-
tection, both at the level of rule-making and adjudication. Education is another
decisive domain where municipalities have to intervene necessarily, at least at
a minimal level. Indeed, the development of a public and religion-neutral sys-
tem of education has triggered an important intervention of the local authorities
in this area of competence, which is largely subsidized by the three linguistic
Communities existing in the country, as mentioned supra. In this case, we are
talking about a competence which is compulsory in a partial way, but which on
the other hand is largely regulated by the central authorities (in this case, the
Communities), which grant the subsidies, that are an essential condition for the
exercise of this competence.
Finally, municipalities do carry out a series of initiatives and activities that
can be characterized as «optional» or «voluntary», in different fields such as
sports, economic activity, cultural events, social services, etc. These diverse
competences may adopt a more «compulsory» intensity, as long as they will be
subsidized by the other levels of government (regions, the federal state, etc.). In
particular, programs and initiatives conceived to strengthen the social links in
specific urban communities are very important, since they target at combating
certain types of urban violence.
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local government in belgium
The most important organs of municipalities are the council (conseil), the
executive organ (l’exécutif) and the presidency (la présidence), which are here
summarily presented:
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jacques bouvier
As said earlier, the Belgian constitution entrusts the municipal and provin-
cial organs with the exclusive management of the municipal and provincial in-
56
local government in belgium
terests. Thus, the question quickly arose as to which extent the management of
the said municipal or provincial interests could be awarded to organs others
than municipal or provincial organs, that is, in particular inter-municipal or-
ganizations.
Certain inter-municipal bodies and structures were created by the law al-
ready in 19th century, in particular for the capture and the distribution of the
water. However, the Constitution was not amended until 1921 to introduce this
matter. In particular, the Constitution was adapted so that it authorized several
provinces or several municipalities to get together, or to get associated for a
more efficient management of the municipal or provincial interest, with the
caveat that it remains forbidden for the affected provincial or municipal coun-
cils to deliberate in common. Since that time, the management by inter-munic-
ipal associations and joint activities has became dramatically important in a
whole series of domains (social services, culture, sports, technical and eco-
nomic activities, etc). On the other hand, the competence to regulate inter-mu-
nicipal associations and activities belongs to the Regions and not to the central
State. The main concern of regional legislators consists in ensuring that the in-
ter-municipal organization are actually controlled by the municipal political
representatives.
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of this positions under mandate (especially in the Flemish region and in the of
Brussels-capital). Besides, both the municipal and provincial organic legisla-
tion and the other set of applicable legal rules can indeed also require local au-
thorities to fill certain special staff positions. For instance, within the frame-
work of subsidized programs, the subsidy-granter (the Regions, for instance)
may put as a condition to grant the subsidy that the subsidized local authority
put in place specific structures, with specific staff positions.
For what concerns the daily management of the staff, the competencies of
local authorities remain very large, as long as they respect the limits which they
gave themselves or those imposed by the legislation. Local authorities do re-
cruit freely their staff, adjust their careers and can also put an end to their of-
fices. Contrary to what happens in other countries, in Belgium there are not
employees at the local level which are imposed by a superior authority.
A particular remark must be made as regards the local education. The fact is
that education is a domain which belongs to the different Communities present
in Belgium. These bodies have laid down very detailed rules in this field, not
only as regards the contents of the curriculum in schools, but also about the
status of the teachers, usually local employees. The respect of these conditions
is justified not only by the necessity of obtaining subsidies, but also and espe-
cially by the necessity of local authorities of being able to issue officially ap-
proved certificates, at the end of the educational programs.
In our view, it is evident that, by way of establishing the status of the teach-
ing personnel, the Community authorities have gone rather far away and have
thus limited the power of the local authorities to regulate the status, duties and
obligations of their own personnel.
From a historical point of view, the financing of local authorities was es-
sentially connected to their fiscal autonomy. The Belgian Constitution of 1831
confirms effectively that both the province and the municipality have a proper
fiscal power and that this fiscal power can be exercised only by the council,
either provincial or municipal. Since 1860, the Belgian state authorities had to
react with regard to a local tax which assimilated to an actual, internal customs
tax, called «droit d’octroi», similar to an excise duty. This local tax was sup-
pressed in 1860 and, in order to compensate local authorities for the loss of in-
come that this abolition might trigger, state authorities established a mechanism
of general financing («financement général», in French) of the municipalities
and the provinces, known under the name of «Fund of municipalities» and
«Fund of the provinces». This type of general financing was recognized during
the reform of political institutions in Belgium, and responsibility for manage-
ment and regulation was entrusted to the three Belgian regions. Therefore, Bel-
58
local government in belgium
gian Regions are nowadays responsible for the general financing of the mu-
nicipalities.
Next to the general system of local financing, there is obviously also the
possibility of subsidizing certain number of municipal activities. Again, on the
occasion of the reform of Belgian political institutions, it was clearly specified
that this type of subsidizing can be insured by each of the various levels of
power (federal, state, regions, communities) according to their respective com-
petencies and powers. In the light of the precedent lines, it can be said that in
Belgium the funding of local governments is structured on the basis of three
major prongs: (a) the local, fiscal autonomy; (b) the «general financing», and
(c) the financing by subsidies. It is difficult to identify neatly, in a comparative
way, which is the respective importance of each of these prongs (fiscal autono-
my and general financing, on one hand, and special financing of the other hand),
these sources fluctuate naturally every year. This issue is especially clear in the
case of subsidies for investments. In any case, it can be said that the municipal
tax system remains the essential source of local financing.
The most important local taxes are those hitting real estate properties (taxes
immobilières) and professional activities (taxes sur les revenus professionnels).
Next to it, municipalities may also raise may different local taxes, which may
have a two-fold aim: on the one hand, ensuring a complement to the local fi-
nances and, on the other hand, contributing to the implementation of certain
local public policies, like urban and land use policies (for instance, the tax on
abandoned buildings).
On the other hand, it is necessary to indicate that local authorities may
charge the citizens for the services that they provide to the population. These
local charges or fees are called «redevances» in French. The establishment of
these fees can not only seek income for the local treasury, but can also be cou-
pled in certain cases with wider concerns, as for example the problem of car
parking in cities.
The «general financing» of the municipalities stands as the second source of
funding of the municipalities, at the front of the financing by subsidies.
As said above, the third and last element of municipal financing are subsi-
dies. Certainly, the other levels of government (the state or the regions) may
take the initiative to finance directly, in certain circumstances, works of invest-
ment of which the local powers will take advantage and will manage in the fu-
ture. A good example of this form of financing is represented by certain federal
funds, invested in the municipalities of the region of Brussels-capital, to sup-
port the role of capital of the country that this region is called to bear.
For what concerns the provinces, the same structure of local financing ap-
plies, more or less, to them, with an important difference, in the sense that their
tax system articulates essentially around additional provincial amounts (estab-
lished on top of the real estate taxes) and of diverse provincial taxes. In this
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field, of course, difference may appear among the different regions. For in-
stance, in four out of five Flemish provinces, the different traditional provincial
taxes have been replaced by one single, general provincial tax.
An analysis of the different sources of income in the municipal budgets for
2009 allows to balance the various elements as follows:
– Fiscal income: 50,1%
– Funds and subsidies: 37,3%
– Own resources: 12,6%
These percentages are more or less identical in the three regions of the
country. For what concerns the provinces, we may analyze the situation in the
Flemish and in the Wallonian region. In 2010, the budgets of the Flemish prov-
inces showed the following figures:
– Fiscal income: 73,8%
– Charges and fees: 4,7%
– Funds and subsidies: 18,1%
– Loans and debt: 3,4%
And for the Walloon provinces:
– Fiscal income: 56,1%
– Charges and fees: 7,9%
– Funds and subsidies: 25,4%
– Loans and debt: 2,4%
Like any other governmental body, local authorities can naturally be the
owner or tenant of real estate property and other different public infrastructures.
The most important assets of which local bodies are the owners are doubtless
the public roads and streets. As in other countries, an essential distinction is
made in Belgium between two big types of local property: public domain (do-
maine public) and private domain (domaine privé), each one having a different
legal regime. The properties having the nature of public domain are regulated
by Administrative law, and they are classically considered as been outside the
commerce, that is, they cannot be sold or transferred to private individuals, as
they enjoy a special protection by the law. A particular statute, now integrated
into the judicial code, allows the identification of the local properties pertaining
to this legal category. To qualify as a «public domain» asset, it must be owned
by a municipality and be aimed or allocated to a public use or service (affecta-
tion du bien, in French).
Generally speaking, the trend is to consider that the «affectation» of a given
good to the public domain stands as the exception, since the general civil-law
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principle governing property rights claims for the free circulation of goods and
assets. Accordingly, the legal presumption for any good or property belonging
to local authorities is that they are or «private domain», not public domain. Lo-
cal properties can be allocated to the public domain either by a specific legisla-
tive provision or by an administrative decision. In the first case, a good example
stands at article 538 of the Belgian Civil Code, which lists several types of local
properties as been of public domain. In the rest of the cases, the «affectation»
to public domain has to be accomplished by means of a specific decision taken
by the competent body, which can be obviously overturned by an opposite deci-
sion of the same authority.
On the other hand, when a local public authority lends or hires a given prop-
erty, its rights and duties are essentially regulated by civil law, and the judge
who will be competent to intervene in any potential legal claim will be the same
as the one who intervenes in any civil dispute between private individuals con-
cerning the same type of lawsuit.
The situation is different in the domain of public domain property: this type
of local property is normally intended to be occupied or used by the public au-
thority exclusively, and therefore its responsibility or obligations have a special
nature, regulated by administrative law.
For a better running of the local services, public authorities decide fre-
quently to allocate to a third, private party, the use of a good belonging to the
public domain. This technique can be accomplished by the mechanism of the
«concession» (concession d’un bien public), which gives the individual the
right to exploit on an exclusive basis a public property, with the payment of a
fee. Belgian legal scholars have discussed about the legal nature of this tech-
nique. The predominant view is that there is a contractual relation between the
local authority and the holder of the concession, but this is a particular type of
contract, which we could identify as a «public contract» in opposition to «pri-
vate contract». This contract will be characterized by the fact that the local
authority can modify or adapt the contractual clauses for reasons of public in-
terest.
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jacques bouvier
(tutelle) which belongs to the Regions, on the one hand, and the one belonging
to the (three) Communities, and the Federal State, on the other. On the other
hand, we can make a distinction between «regular» o «common» supervision,
and «specific» supervision.
«Regular» or common supervision (tutelle ordinaire) covers the natural ac-
tivity of the local powers in the management of the municipal and provincial
interest and includes all their activities, as long as a given activity is not subject
to a «specific» supervision (tutelle spécifique). This kind of «regular» supervi-
sion is exercised by the Regions, since these bodies are competent to set the
rules governing the local administration, as it has been pointed out supra. On
the contrary, «specific» supervision over municipal and provincial activities
and programs may be exercised by the federal, community and regional au-
thorities, but is strictly limited to controlling how local bodies discharge the
competencies that have been allocated to them by the said «higher» territorial
governments. Different examples will help understanding this idea:
(a) Under the law, the Regions are the competent bodies in the matter or
urban policies and environmental protection. A given region may de-
cide to grant specific competences in this field to the municipalities lo-
cated in the region. In this capacity, the region may supervise or control
how municipal authorities do discharge the competencies received from
the regional government.
(b) The Communities, which are competent in the field of education, can
carry out a certain control on how local governments discharge their
competences in this domain, independently from the fact that the Com-
munites are the main subsidizers of educational programs.
(c) Finally, the federal authorities may control the manner how local pow-
ers exercise their competencies in the field of security, street crime, etc.
A key issue in the domain of administrative «tutelle» is which is its ac-
tual scope and its extension. As a rule, administrative supervision aims at
controlling that the activity of local authorities is in conformity not only with
the law, but also with the general interest. This is a basic principle, enshrined
in the Constitution since 1831, and this key aspect brought Belgium to for-
mulate a reservation in this matter to some provisions of the European Char-
ter of Local Self Government. However, one should not understand that the
control of conformity with «the general interest» purports to a supervision of
pure opportunity. On the contrary, the Council of State has declared that the
general interest is an objective concept which cannot be confused with the
simple «good will» of the supervisory authority. For these reasons, when the
controlling regional, federal or community authority intervenes on a given
local government action or decision, it has to motivate these intervention in
a careful and comprehensive manner, according to the criteria of the general
interest.
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local government in belgium
On the other hand, every person whose civil or political rights have been
affected by a decision or by the activity of a local authority has the right to bring
an appeal against the local body in the competent court. This possibility is open
to individuals and to «moral» persons and, in the latter case, both to «private»
and to «public law» entities.
When the general supervision applies, the controlling authority can, at first,
suspend the decision, which opens the door for the local body to either maintain
its position, or to modify the contested decision. If the local authority maintains
its decision, the controlling authority may annul it, and in this case the affected
local authority may go to the courts to challenge this annulment.
When an authority that does not possess the power of administrative su-
pervision wants to counter a given decision adopted by a local authority, even
in the case of urgency, it cannot suspend the said decision by itself, and it
must bring a petition of suspension in the law-courts. It will be up to the ad-
ministrative court to decide whether the suspension should be granted or not.
As a rule, both the measure of suspension taken by a supervisory, administra-
tive authority, and the decision of suspension declared by a court must be
motivated.
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jacques bouvier
The special Act of March 9th, 2003, which amends that of January 6th, 1989
has dramatically widened the competencies of the Belgium Constitutional
Court. This court is now competent to analyze the conformity of a given «leg-
islative rule» (either a statute, an administrative regulation, etc.) with the prin-
ciple of municipal fiscal autonomy contained in the constitution (art 170).
Apart from that special judicial review, in Belgium the judicial protection of
local self-government is guaranteed either by the regular courts, under the final
jurisdiction of the Highest Court of Appeal (Cour de Cassation), or by the admin-
istrative courts, and more specially by the Council of State (Conseil d’Etat). The
«regular» courts are competent to refuse the application of «decisions and regula-
tions» which are not in accordance with the laws. This is a pure control of legality.
Therefore, a local authority which is negatively affected by a measure, a
decision or a regulation adopted by a «higher» government (the Community,
the Region or the federal State) which it considers illegal, can bring a lawsuit
before the «regular» courts, seeking a denial of application of the contested
decision. However, the capacity to annul or to quash administrative decisions
and regulations which are not in conformity with the Law is an exclusive com-
petence of the administrative courts and the Council of State. For this reason, if
a local power is affected by an administrative decision taken by a «higher» level
of government, which is deemed to be illegal, it can perfectly introduce a petition
for annulment in the Council of State. These controls of legality do not affect the
general competence of the «regular» courts to declare the responsibility of local
administration officials and bodies.
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local government in belgium
The implementation of the financing stemming from these funds falls under
the responsibility of the federal and regional authorities. Once the overall fund-
ing strategy and the budgetary allowance have been decided, the specific fund-
ing makes the object of a shared approach. Seven-year operational programs
are planned by the member states and by their regions, in partnership with the
European Commission. These operational programs describe the fields of ac-
tivity which will be financed. These fields can be geographical or thematic.
Later on, the member states appoint the national bodies that will be responsible
for the management of these funds. In this capacity, they will be in charge of
selecting the projects, of redistributing the funding and of estimating the
progress and the results of the different projects included in any program.
Authorities of certification and audit are also designated, to control and to
verify that the spending is in accordance with the regulations governing these
funds. Within this well-structured framework, Belgian municipalities and prov-
inces can participate in the calls for the different projects, generally launched
by the regions. It is important to note that, depending on the budgetary strategy
that may be adopted within the framework of the several programs, local au-
thorities can have a direct access to financing, provided by the European funds.
In this case, the qualified interlocutors of the local powers are the associations
of cities and towns which are present in the three regions of the country. For
what concerns the actual impact of the regional, European funds in Belgium, a
recent study has stated that the weight of those subsidies, within the framework
of the structural funds and of the social cohesion fund, will amount to 0,5% of
its GDP(gross domestic product) for the period 2011 – 2013.
2
We include rulings rendered by the two most important regular Belgian federal courts: the
Cour de Cassation (court of last resort in non-administrative litigation) and the Council of State
(Conseil d’Etat), which is the court of last resort in the domain of judicial control of administra-
tive action. We also include rulings from the Conseil Constitutionnel (constitutional council),
which is the Belgian Constitutional Court.
3
Belgian Court cases reporter.
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12.2. Bibliography
Collective books
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67
Chapter 3:
LOCAL GOVERNMENT IN THE REPUBLIC
OF BULGARIA
Alexander VODENICHAROV
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alexander vodenicharov
ties. «Public council» charters were set up. Electoral authorities in municipali-
ties and counties were considered to be public bodies of state authorities and
national self-government. The Executive Committee was established as an ex-
ecutive body of the Public Councils. The Executive Committee was elected by
the councils and was composed of the councillors.
The Constitution of 1991 (Prom. SG. 56|13 Jul 1991 with amend.), stipu-
lates a broad legal basis for extensive development of local self-government.
The constitution defines the content and forms of manifestation of local self-
government, and establishes the political and legal guarantees for its implemen-
tation. The Constitution also stipulates the constitutional legal status of the ma-
jor governing bodies at local level of government: the municipal council as the
governing body, and the mayor as the executive body.
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local government in the republic of bulgaria
all paragraphs of Part One of the European Charter, with the exception of Art.
7, paragraph. 2.
Art. 5 para. 4 of the Constitution stipulates that any international instru-
ment that is ratified by constitutionally established procedure, promulgated
and made effective in the Republic of Bulgaria, is considered to be a part of its
domestic legislation. These instruments supersede any other domestic legisla-
tion that may be contrary. Therefore, the Charter is a part of the acting laws in
Bulgaria.
On the other hand, several pieces of legislation have been adopted based on
constitutional norms, which can be categorised into three groups. The first one
includes laws that are entirely devoted to interactions within local self- govern-
ment. The second group consists of legislative acts that include a large number
of specific rules, and the third group contains specific provisions relating to the
functioning of municipalities and municipal administration.
Thus, the Act prom. SG. 77/17 Sept. 1991, on local self-government and
local administration is of crucial importance. This statute was enacted on 17.
09. 1991 and has been amended and supplemented several times. It defines the
status of the municipality and its constitutive elements. The law determines that
«the territory of the municipality is the territory of the settlements, included in
it. Disputes over territorial boundaries of settlements are adjudicated by the
courts». The Act determines the status of the municipal councillor, mayor, mu-
nicipal administration, commissions of the municipal council, etc
The name of the municipality is the name of the settlement that is its ad-
ministrative centre, except in cases regulated by law, where the administrative
centres of settlements outside their territory are also administrative centres of
other municipalities. The population of a municipality consists of all its citi-
zens, who have permanent residency in its territory. The law states that the
activity of a municipal council, municipality mayor, of the district mayor, and
of the mayoralty mayor is supported by the municipal administration. Munici-
pal administration is structured according to directorates, departments and sec-
tors. Departments or sectors can also be set up as independent structural units,
outside the formal organisation of the directorates and departments. The mu-
nicipal council may establish the services of the municipal administration for
separate regions, mayoralties, settlements, or in parts thereof, according to
their functions.
It is especially significant that the above mentioned 1991 statute stipulates
the subject content and the scope of local self-government. Local government
is expressed as a right and a real alternative for citizens and the bodies elected
by them, to decide independently on all issues of local importance vested to
them by the law, such as:
1. Municipal property, municipal companies, municipal finance, taxes and
fees, and municipal administration;
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local government in the republic of bulgaria
oralty of the territory where the events have taken place. The mayor of the
municipality is in charge of the civil status registry for the territory of the mu-
nicipality.
Another relevant piece of legislation is the Act on Municipal Property
(Prom. SG. 44/21 May 1996, as amended), since it governs issues such as the
acquisition, management and disposition of municipal property, unless a spe-
cial law provides otherwise. Other pieces of legislation are also essential to lo-
cal self–government, like the Act on Concessions, (Prom. SG. 36/2 May 2006,
amended); the Regional Development Act, (in effect as of 31.08.2008, Prom.
SG. 50/30 May 2008, amended); the Act on Public Education, (Prom. SG.
86/18 Oct 1991, amend.); and the Civil Service Act (Prom. SG. 67/27 Jul 1999
amended).
Sofia is the capital of Bulgaria, but has no specific legal status. Art. 8 of the
Law of local Self-Government and Local Administration states that the capital
city is an administrative – territorial unit and also has a regional statute that al-
lows self government and the implementation of state policy for the develop-
ment of the capital
In each municipality, the council and the mayor have a wide range of legal
competences and powers that are described in several laws.
To begin with, local authorities have the power of eminent domain and may
expropriate private property for municipal needs that cannot be met otherwise,
pursuant to the Law on Municipal Property. This action must be based on a
development plan, in force, that provides for the construction of local infra-
structures or buildings and must follow, if necessary, preliminary and fair mon-
etary compensation. Whole private properties or portions of them may be seized
if they are directly affected by the construction or have become inadequate for
development according to sanitary, safety, hygiene and fire safety regulations.
Detailed development plans are adopted by the municipal council, regard-
less of their scope. Fair monetary compensation is determined according to
market prices of properties of similar specifications, located in the proximity of
the alienated property, and according to the use of the properties prior to execu-
tion of the detailed development plan.
The municipal council has also regulatory powers. Art. 21, para. 2 of The Law
of Local Self-Government and Local Administration states that, in execution of
its powers the municipal council will approve rules, regulations, instructions, de-
cisions, declarations and notifications. Only regulations, instructions and deci-
sions have a regulatory nature. In issuing ordinances, the municipal councils may
establish administrative penalties for the wrongdoers. The council determines the
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local government in the republic of bulgaria
The meeting for the election of quarter mayors is held within 14 days after the
first meeting of the newly elected municipal council. The elected candidate must
obtain more than half the total number of the votes from the municipal council-
lors. If none of the candidates receives the necessary votes to be elected, the chair-
man of the municipal council must convene a new meeting within 14 days.
The mayor of the municipality has many important powers and competenc-
es in the day-to-day running of the local authority. Thus, he or she must:
1. Manage all executive activity of the municipality;
2. Direct and coordinate the activity of the specialised executive bodies;
3. Appoint and discharge deputy mayors of the municipality, the mayors
deputies, heads of the municipal budget units, chiefs, and employees of
the municipal administration;
4. Impose disciplinary measures under law;
5. Assume the responsibility to maintain public order and issue written
orders to be carried out by the local police
5. Ensure correct management of the municipal budget;
6. Ensure fulfilment of long term programmes;
7. Ensure execution of the acts of the municipal council and submit semi-
annual reports to the municipal council on their implementation;
8. Ensure the fulfilment of the tasks, ensuing from laws and acts of the
President of the Republic of Bulgaria and of the Council of Ministers;
9. Monitor the legality of actions by the mayors of mayoralties and dis-
tricts in fulfilment of their functions; and impose any corresponding
administrative penalties;
10. Maintain connections with political parties, public organisations and
movements, and other bodies of local government in the country and
abroad;
11. Ensure the proper running of the civil registry by written order to the
mayors of mayoralties where civil registries are maintained or to the dep-
uty mayors or other official persons of the municipal administration;
12. Represent the municipality before individuals and corporate bodies, and
in court.
13. Ensure the organisation and technical support of the municipal council
and participate in its sessions with the right to vote.
On the other hand, the mayor of municipality is to present a management
program for the period of the mandate to the municipal council, within three
months after taking oath. The program must contain the general objectives,
priorities, activities, deadlines for fulfilment and expected results. The mayor
of municipality will also submit to the municipal council an annual report on
accomplishments of the program, no later than 31 January.
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alexander vodenicharov
The municipal council approves the total number of employees and the in-
ternal structure of the local administration, on the proposal of the mayor. Mu-
nicipal human resources are comprised of two categories of employees: civil
servants and contractual employees.
The legal status of civil servants is governed by the Civil Service Act. Their
status does not differ from that of any other civil servants who works in the
public administration. They perform their functions according to their official
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local government in the republic of bulgaria
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alexander vodenicharov
– The Law on the Municipal Debt, in force form 01.06.2005, (Prom. SG.
34/19 Apr 2005, amended). This law regulates the conditions and the pro-
cedure for incurring in municipal debt and issuing municipal guaranties,
and specifies the types of municipal debt.
– The Lаw of Local Taxes and Fees, (Prom. SG. 117/10 Dec 1997, amend-
ed) defines the nomenclature of local taxes and fees.
Financial resources of local government are directly and immediately relat-
ed to the drafting, adoption, implementation, completion and accounting for the
municipal budgets. There are also non-budget resources of the municipalities.
The municipal budgets and the non-budget resources are administered by local
government bodies.
Art. 141, par. 1 of the Bulgarian Constitution stipulates that the municipality
will have a budget of its own. The municipal budget is an independent financial
account for the receipts and expenditures of the municipality for one budget
year. The municipal budget allocates and provides resources financing local or
delegated by the state activities. The financing of the local and delegated by the
state activities is carried out by the municipality to the interest of the local com-
munity and by observing the principles of lawfulness, expediency, effectiveness,
efficiency and publicity. The municipal budget is public and is monitored by the
municipal council and by other competent bodies, according to the Law.
The budget includes three groups of revenues of the municipality: The first
group includes own revenue from local taxes; local fees; services and rights
conceded by the municipality; municipal property; fines and sanctions; inter-
ests and forfeits; and other non-tax revenue. The second group includes revenue
from state transfers for subsidies; subventions; interest-free credits from the
central budget granted for financing expenses, including for the Value Added
tax, until their reimbursement under approved projects and programmes, fi-
nanced by the European Union. The third group includes revenue from trans-
fers between administrators of budget credits.
The budget revenue is derived from the collection of local taxes, local fees,
services and rights provided by the municipality, the management of municipal
property, the fines and real estate sanctions and interest, forfeits and other non-
tax revenue.
The expenditure section of the municipal budget includes budget credits for
financing local and state-delegated activities. The activities delegated by the
state and the standards of their cost, quantity and quality assessment are deter-
mined jointly by the respective minister, the National Association of the Mu-
nicipalities in the Republic of Bulgaria and the Minister of Finance, and they
eventually adopted by the Council of Ministers.
The law determines the standards used to calculate the total amount of re-
sources appropriated to municipalities and their distribution to finance state-
delegated activities for the given year. By decision of the municipal council, a
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The municipal council fixes a price for all the services and benefits provided
by the municipality, with exception of above, the fees are set in compliance
with the following principles: reimbursement of full expenses to the municipal-
ity of for the service provided; creation of conditions to expand the offered
services and improve their quality and to achieve a more equitable way to exact
payment of local fees. The municipal council must adopt an ordinance that in-
forms the public about local fees and prices for services.
Art. 140 of the Constitution states that municipalities are entitled to own
property, that will be used in the interest of the territorial community. On the
basis of this provision, the Municipal Property Act (Prom. SG. 44/21 May
1996, as amended) was adopted, and sets forth the guidelines for the acquisi-
tion, management and disposition of municipal property, in absence of special
legislation.
The following assets are considered to be municipal property:
1. Properties and chattels defined by law;
2. Properties and chattels conceded in ownership to the municipality under
law;
3. Properties, whose ownership is restored to the municipality under condi-
tions and by order, under law;
4. Properties and chattels granted or bequeathed to the municipality;
5. Properties and chattels acquired by the municipality through voluntary
work and/or pecuniary resources of the population;
6. Properties and chattels acquired by the municipality through legal trans-
action, prescription or other means, determined by law.
Municipal property may be public or private. Public municipal property in-
cludes: properties and chattels, determined by law; real estate designated to imple-
ment the functions of the bodies of local government and local administration, and
other properties of local significance, designated for the permanent enjoyment of
the public, as determined by the municipal council. Private municipal property is
all other municipal property and chattels. Benefits and revenues from the property
and chattels of public municipal property are privately owned by municipalities.
Real estate and chattel designated as public municipal property, lands be-
longing to municipal land funds, and forests and lands of the municipal forestry
fund cannot be acquired by prescription, nor can they be alienated and trans-
ferred in ownership to third persons. Properties considered public municipal
property, can be encumbered with limited property rights as determined by law.
The acquisition, management and disposal of municipal ownership, are carried
out under the general management and control of the municipal council.
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The regional governor exercises control over the legality of the decisions
and measures issued by the municipal councils, unless otherwise provided by
law. The governor can recall unlawful measures for new consideration by the
municipal council or to dispute them before the pertinent administrative court.
The appeal suspends the enforcement of individual and general administrative
acts and the application of sub-legislative legal acts, unless otherwise resolved
by the court. These powers are granted by Art. 45, para.4 of the Law of Local
Government and Local Administration.
The regional governor can suspend illegal acts adopted by the mayors, within
14 days after being notified of the act. The governor’s control is limited only to
aspects of legalitity of the contested decision. Any issues beyond this jurisdiction
fall under the category of expediency or opportunity. Both the lawfulness and the
expediency of an administrative decision may be contested by a complaint, ac-
cording to the rules laid down by art. 32, para. 2 of the Administration Act.
On the other hand, citizens and organizations have the right to contest an
administrative measure of the municipal council or the mayor before the ad-
ministrative court, if they believe that their rights, freedoms or legitimate inter-
ests have been breached or threatened. The term «organization» refers to a legal
entity or an association of legal entities or natural persons that is identified as
such by law. The administrative decision may be contested before the court
without prejudice of the right of the claimant to file a petition to the regional
governor.
For what concerns maladministration, the Ombudsman of the Republic of
Bulgaria has specific functions regarding municipal councils and mayors of
municipalities. Pursuant to the Law of the Ombudsman (effective as of
01.01.2004. Prom. SG. 48/23 May 2003, amend.) the Ombudsman may inter-
cede in a case when action or lack of action affects or violates the rights and
freedoms of the citizens by the state and municipal bodies and their administra-
tions, as well as by persons to whom public services are assigned.
Specifically, the Ombudsman accepts and considers complaints and warn-
ings of any violation of rights and freedoms by government bodies or other
government affiliated persons; inspects complaints and other indications of vi-
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local government in the republic of bulgaria
the competent municipal authority for review of the complaint, or the plaintiff
demands that it be issued, a period of time will be established for the document
to be presented. The parties other interested interveners will be immediately
notified as to the decision of the competent municipal authority that has re-
viewed the case. Once the case has been ruled on by the competent municipal
authority, the municipality may take the case to court.
Art. 135, par. 3 of the Constitution states that а municipality is a legal entity
and may participate in judicial proceedings. The Constitution affirms that a mu-
nicipal council is free to challenge any act that encroaches on its rights, before a
court (Art. 145). A municipality may participate in a claims procedure to recover
a lawful right if it is violated, or to determine the existence or non-existence of a
legal relationship or right, if clarification is needed. Civil cases in which the mu-
nicipality is a claimant, are under the jurisdiction of the district or regional lower
courts. Proceedings for civil cases are regulated by the Code of Civil Procedure
(effective as of 01.03. 2008, Prom. SG. 59/20 Jul 2007, as amended).
Municipalities may also file law suits against administrative decisions taken
by the competent state bodies, affecting their rights, freedoms or legitimate in-
terests or unlawfully delegation duties. These proceedings fall under the juris-
diction of the administrative courts.
Administrative courts hear cases involving the issuing, amendment, cancel-
lation or annulment of administrative adjudications; the declaration of invalidity
of municipal agreements; protection against ungrounded actions and inactions
of the administration; protection against unlawful enforcement; compensation
for damages from unlawful acts, actions and inactions of administrative bodies
and officials; etc.
The municipality may request that the court establishes the existence or the
non-existence of an administrative right or legal relationship when the municipal-
ity has an interest in this and has no other means of protection. The lawfulness of
an administrative decision affecting municipalities may also be contested before
the court. The ruling will take into consideration the following aspects:
1. The initial, individual administrative adjudication, including the refusal
to issue it;
2. The decision of the higher administrative body, cancelling or amending
the contested adjudication under item 1;
3. The decisions concerning requests to issue documents that are vital to the
recognition, exercise or redemption of rights or obligations.
The administrative decisions may be challenged in their entirety or in sepa-
rate parts. The grounds for contesting administrative decisions on behalf of the
municipalities include, among others: (a) lack of competence; (b) lack of con-
formity with established legal forms; (c) essential breach of administrative and
procedural rules; (d) contradiction with material legal provisions; (e) non-com-
pliance with the purpose of the law.
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90
Chapter 4:
LOCAL GOVERNMENT IN CYPRUS
George COUCOUNIS
1
«Μεγάλη Κυπριακή Εγκυκλοπαίδεια» 4ος Τόμος, Φιλόκυπρος Εκδοτική Εταιρεία
ΛΤΔ, 1986 (in English «Great Encyclopedia of Cyprus», 4th Volume, Filokypros Publishing
Company Ltd, 1986)
2
idem
3
����������������������������������������������������������������������������
«Η Τοπική Αυτοδιοίκησις εν Κύπρω», Κρίτων Τορναρίτης, Λευκωσία 1972 (�������
in Eng-
lish «Local Self-Government in Cyprus», Criton Tornaritis, Nicosia 1972)
4
«Μεγάλη Κυπριακή Εγκυκλοπαίδεια» 4ος Τόμος, Φιλόκυπρος Εκδοτική Εταιρεία
ΛΤΔ, 1986 (in English «Great Encyclopedia of Cyprus», 4th Volume, Filokypros Publishing
Company Ltd, 1986)
91
george coucounis
One of the main issues Cyprus faced following its independence was the
separation between Greek-Cypriots and Turkish-Cypriots municipalities, which
was addressed and regulated in the Cyprus Constitution.7 Article 173 provided
5
����������������������������������������������������������������������������
«Η Τοπική Αυτοδιοίκησις εν Κύπρω», Κρίτων Τορναρίτης, Λευκωσία 1972 (������� in�����
����
Eng-
lish. «Local Self-Government in Cyprus», Criton Tornaritis, Nicosia 1972)
6
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«Η Τοπική Αυτοδιοίκησις εν Κύπρω», Κρίτων Τορναρίτης, Λευκωσία 1972 (������� in�����
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Eng-
lish. «Local Self-Government in Cyprus», Criton Tornaritis, Nicosia 1972)
7
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ola Loizou, Nicosia 2001)
92
local government in cyprus
that separate municipalities would be created in each of the five largest towns
of Cyprus. The council of the Greek-Cypriot municipality was to be elected by
the Greek-Cypriot voters and the council of the Turkish-Cypriot municipality,
by the Turkish-Cypriots. This provision was temporary, subject to review,
within four years, by the President and Vice-President of the Republic.
Meanwhile, the Constitution (article 178) declared that a special provision
should be made that would allow, as far as possible, proportional representation
of the Greek and Turkish communities in the municipalities’ governing bodies.
It also made provisions for the separate taxation of the members of each com-
munity (article 174), the issuing of permits by the municipalities (article 175),
the enactment of laws regarding town planning (article 176), and the compe-
tences of the municipalities (article 177).
1.2.2. Inter-communal conflicts
(1964) C.L.R.195
8
93
george coucounis
competences for municipal administration and various other matters. The Vil-
lages (Administration and Improvement) Act, Cap. 243 remained in force, as
well as the Village Authorities Act of 1931, Cap. 244.
1.3.1. Complexes
94
local government in cyprus
will encourage and promote the participation of its inhabitants in local affairs as
well as search, identify, record and resolve problems in the area. The inhabitants
will be provided with information on existing problems and the actions and deci-
sions to be taken for their solution. A council or complex will not only consult
with the local bodies and the interested groups, but also with the inhabitants dur-
ing the preparation and decision taking phases on issues of broader interest. The
right of all inhabitants to access services provided by the local authority or the
complex, respectively, will be ensured. The issue of transparency regarding the
actions of a local authority will also be addressed. Every municipal council and
the council of a complex will be empowered to introduce and operate a support
service to provide the public with information about the municipality, the com-
plex and their services, the various projects executed and the handling of com-
plaints and applications. Provisions will also be made for their examination, the
outcome of which will be notified to the public. It is stipulated that annual assem-
blies will be held to exchange information and to promote discussion about local
affairs.
95
george coucounis
affairs affecting their daily life, through the elected officers, who cannot be
substituted by the central government.9
On the other hand, Cyprus is divided into six Districts, each of which con-
sists of a number of municipalities and community councils. The Districts are
named after their capital town, which are also the largest cities in the country:
Nicosia (in Greek: Λευκωσία -Lefkosia), Limassol (in Greek: Λεμεσός -
Lemesos), Larnaca (in Greek: Λάρνακα -Larnaca), Paphos (in Greek: Πάφος
-Pafos), Famagusta (in Greek: Αμμόχωστος - Ammochostos) and Kyrenia (in
Greek: Κερύνια - Kerynia). The municipalities of Famagusta and Kyrenia
have been displaced due to the Turkish invasion of Cyprus in 1974.
The District has an administrative role and is headed by the District Officer
who is a senior civil servant, appointed by the Government. His duty is to coor-
dinate and liaise with the activities of all the Ministries in the District, and is
accountable to the Ministry of the Interior.
As for figures and types of local authorities, there are 33 municipalities and
492 communities in Cyprus.10 The following is a summary of the existing Dis-
tricts and their municipalities and community councils.
– District of Nicosia: 11 municipalities, three of which are semi-occupied
and an additional three are occupied by Turkish troops; and 135 communi-
ties councils, 39 of which are occupied by the said troops since the inva-
sion of the island in 1974.
– District of Limassol: five municipalities and 106 community councils.
– District of Larnaca: four municipalities, one of which is semi-occupied
and 50 community councils, out of which, two are occupied.
– District of Paphos: four municipalities and 99 community councils.
– District of Famagusta: seven municipalities mostly occupied, out of which
one is semi-occupied and four are occupied; and 66 community councils,
60 of which are occupied.
– District of Kyrenia: the smallest District, consisting of three municipalities
and 36 community councils, all of which are occupied.
The occupied municipalities and communities are in fact displaced from the legal
process. They maintain their legal status, although their mayors and councils have
temporarily been displaced and relocated in areas controlled by the Republic. How-
ever, the communities cannot apply the powers vested in them by the national Law.
9
«Σύγχρονη Γεωγραφία της Κύπρου – Πληθυσμός και Οικισμοί της Κύπρου» Τόμος
4, Γιώργος Καρούζης, ΣΕΛΑΣ Κέντρο Μελετών, Ερευνών & Εκδόσεων, Λευκωσία
1999, ISBN 9963566650 (in English «Contemporary Geography of Cyprus – Population and
Settlements in Cyprus», Volume 4, Giorgos Karouzis, SELAS Centre of Studies, Research &
Publications, Nicosia 1999).
10
Union of Cyprus Municipalities: www.ucm.org.cy, Union of Cyprus Communities: www.
ekk.org.cy, District Administration Offices: www.moi.gov.cy/da
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local government in cyprus
The capital of Cyprus is Nicosia,11 the island’s largest city and the leading
administrative, commercial and educational centre. The Byzantines chose it as
the new capital of Cyprus in the 10th century AD, because of its central loca-
tion.12 It has been the capital of Cyprus since then, and now it stands as the only
divided capital city in Europe. It should be noted that the municipality of Nico-
sia has no special status compared to the other municipalities in Cyprus.
11
Municipality of Nicosia: www.nicosia.org.cy
12
«Μεγάλη Κυπριακή Εγκυκλοπαίδεια», 9ος Τόμος, Φιλόκυπρος Εκδοτική Εταιρεία
ΛΤΔ, 1986 (in English. «Great Encyclopedia of Cyprus», 9th Volume, Filokypros Publishing
Company Ltd, 1986).
13
«Ο περί Κοινοτήτων Νόμος» Ένωση Κοινοτήτων Κύπρου, Λευκωσία 1999 (in
English «Communities Law» , The Union of Cyprus Communities, Nicosia 1999).
14
«Σύνταγμα Κυπριακής Δημοκρατίας» – Ανδρέα Νικόλα Λοϊζου, Λευκωσία 2001,
ISBN: 9963-8654-0-2 (In English. «The Constitution of the Republic of Cyprus» – Andreas
Nicola Loizou, Nicosia 2001).
15
(1987) 1 C.L.R. 207.
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george coucounis
The only body of law superior to the international agreement is the Constitu-
tion, which according to article 179.1, is the supreme law of the land.
The place and hierarchy of the Charter in the Cypriot legal order must be
briefly discussed. In Cyprus, legal rules are classified according to the follow-
ing hierarchy: (a) European Union Law, (b) Constitution, (c) doctrine of neces-
sity (d) conventions, and (e) ordinary laws. The 5th amendment16 of the Consti-
tution gives EU law supremacy over the Constitution and any other law in
Cyprus, as ruled by the Supreme Court of Cyprus17. In the Malachtou case18, the
court ruled that a provision of a treaty or a convention is self-executing and
directly applicable, if the rights or obligations imposed thereby are comprehen-
sively defined to the extent of making them, without further addition or modi-
fication, enforceable before a court of law.
Furthermore, in the case of Παντελίδης –ν- Λεαντζή19, the Supreme Court
ruled that the European Charter, although ratified by law, was not directly ap-
plicable, because its wording was too vague. It was held that the Charter did not
have as its direct aim the recognition and guarantee of individual rights and
freedoms for legal entities in a manner that these rights and freedoms could be
raised before national Courts. Consequently, although the Charter is governed
by the application of monistic principles and integrated in Cyprus’ domestic
legal system, and overrides any other Cypriot law, in practice, its provisions are
not directly appicable. According to the Supreme Court, the Charter is too
vague in terms of the definition of the rights and obligations that can be di-
rectly raised against domestic law.
As for the Judicial Protection of the charter in Cyprus courts, Judicial pro-
tection in Cyprus is guaranteed under article 146 of the Constitution, which
allows citizens or local authorities to appeal before the Supreme Court, if they
have reasons to believe that they have suffered harm by internal/domestic leg-
islation that contradicts the Charter. On the other hand and according to the
Pantelides case (see footnote 19), the provisions of the Charter are not self-
executing, so it is up to the constitutional bodies and, in particular, to the legis-
lative bodies of the Republic to implement the Charter and make it effective in
domestic law.
16
As introduced by Law 127(I)/2006.
17
Civil Appl. 65/2009, dated 1/02/2011.
18
id note 15.
19
(1991) 3 Α.Α.Δ. 293 (in English Pantelides v. Leantzi, (1991) 3 C.L.R. 293).
98
local government in cyprus
date this law was enacted were regarded as established in accordance with the
law. Provisions were made for the establishment of new municipalities, the
merger of a municipality with its neighbour, improvement area or village, and
the elimination of existing municipalities. «Communities» with a population of
more than 5,000 inhabitants or possessing the economic resources to function
as a «municipality» may conduct a local referendum, subject to the approval of
the Council of Ministers, to decide whether they want to become a
«municipality».20
All municipalities can register as members of the Union of Cyprus Munici-
palities to operate as a representative body of municipalities on a national and
international level. Their main aims are to promote local government in the
context of municipalities, examine issues related to local government, collect
and provide information and express views and opinions on legislation. The
Union is administered by its own officers and employees.21 Municipalities are
legal entities under public law, and have their own boundaries. Citizens of mu-
nicipalities are either Cypriot citizens or citizens of member states of the Euro-
pean Union, with established residence in the municipality.22
20
Part II of the Municipalities Law.
21
Article 7B of the Municipalities Law.
22
Part III of the Municipalities Law.
23
Part III of the Communities Law.
24
Part I of the Communities Law.
25
Part II of the Communities Law.
26
Article 9A of the Communities Law.
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george coucounis
4.1. Municipalities
Although the municipal council has the autonomy to decide on various mat-
ters, this is not considered full autonomy. By law, the council cannot apply
regulations stated in Chapter (Schedule) No. 2 of the Municipalities Act, until
the council issues its own local ordinances and regulations. The tasks and issues
to be discussed at the meetings of the council are established and governed by
regulations issued by the council.27 The members of the council participate in
the meetings of the council and in various committees.
According to the Municipalities Act28, the Council of Ministers approves
each municipal council, investing them with the right to issue, amend and/or
revoke specific regulations that define procedures for municipal employee re-
cruitment, their service structure, salaries, benefits, duties and responsibilities.
The Council of Minister is also to approve municipal decisions, such as money
deposits, some of the council’s duties and responsibilities, the acquisition of
real estate, the issuance of permits and fees, and the regulation of weights,
measures and the testing of goods. The Council of Ministers is not required to
approve the issuance of municipal regulations regarding fees and charges.
The members of the council and the deputy mayor receive compensation
and other allowances as provided for in the municipality’s annual budget, which
is approved by the Council of Ministers.
The Municipalities Act29 outlines the duties of the municipal council regard-
ing, for example, town planning, water supply management, sewer and drain-
age systems, construction, maintenance, street naming and lighting, clean up
and upkeep and grooming of municipal areas, public health protection, the es-
tablishment and operation of slaughterhouses, police control, and parking. Fur-
thermore, this statute empowers the municipal council to handle municipal
funding, the purchase of immovable property, the establishment of municipal
markets and the promotion of cultural and intellectual activities. This legal
27
Part V of the Municipalities Law
28
Article 87, Part VII of the Municipalities Law
29
Article 84, Part VII .
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local government in cyprus
rule30 also invests the municipality with the power to enter into contracts with
another local authority, to carry out projects for the common good and under-
take jointly provide services.
In addition, the municipal council operates independently as the Sewerage
Board, with the mayor acting as chairman. Specific duties are stated in the Sew-
erage Systems Act 1/1971, as amended, and include the construction, supply,
maintenance, expansion and operation of the sewerage systems. The Board’s
staff and services are independent, and their salaries are funded by taxes. Al-
though planning control is generally exercised by the government through the
Town Planning and Housing Department, pursuant to Town and Country Plan-
ning Act 90/1972, the municipalities of Nicosia, Limassol, Larnaca and Paphos
have been granted planning powers for their area.
The powers of the councils are defined by the Municipalities Act31, and they
are similar to those of municipalities, but because of the community councils’
limited functions, there are some differences. For example, the council pro-
vides water for domestic use, constructs and maintains drainage and sewer sys-
tems, street and bridge lighting, maintains community hygiene and cleanliness,
and names or re-names roads, squares and public places as approved by the
District Officer. The council is also authorized to enter into loan agreements,
with the approval of the District Officer, create or administer industrial areas,
charge an annual contribution to community property owners for services pro-
vided, the organization of educational, cultural, artistic, sporting and other
events, and the establishment, maintenance and improvement of parks, gardens
and other public places.32
The Government provides essential administrative and technical assistance,
as well as necessary services to most communities throughout the District Of-
fices. Wealthy communities are exempted from this assistance. Community
revenue consists of state subsidies, taxes and fees collected from residents
within the community boundaries. The financial resources derived from the
collection of these taxes and fees are limited. Consequently, development pro-
jects are financed largely through subsidies granted by the central govern-
ment33, while other grants and subsidies are obtained from European Union
funding.
30
Article 86.
31
Article 83, Part IX.
32
Part IX , Communities Act.
33
Union of Cyprus Communities: www.ekk.org.cy
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george coucounis
Every municipal council has a mayor and 8-26 members, depending on the
number of the voters. The members are directly elected by the municipality’s reg-
istered voters. The mayor and the council members serve a term of 5 years, and are
elected on the same day in December, by separate ballot. Voting is compulsory,
and every citizen of the Republic or of any other member country of the European
Union, who has reached the age of 18, resides permanently in the area of the mu-
nicipality, is registered to vote, has attained the age of 18, is eligible. Any regis-
tered voter, who is at least 25, may run for mayor (or for member of the council if
he is at least 21), and has not been declared ineligible by law. A person of a certain
status or holding a prominent public position, if elected, must resign prior to as-
suming office. The deputy-mayor is elected by the members of the council. A
citizen of any Member State of the European Union may run as council member,
but not for the office of mayor, unless he has acquired Cypriot nationality.34
The mayor35 is the only executive authority who represents the municipality
in all official activities and presides at the council meetings, the Management
Committee and various committees. He also prepares the agenda, convenes the
meetings, executes the decisions of the council, and is in charge of all the serv-
ices of the municipality. He also orders the collection of municipal taxes and
issues financial orders against the budgets or the approved credits. He also acts
as Marriage Officer; and exercises other competences or authorities entrusted
to him by law or municipal regulation. In case of absence or incapacitation, the
deputy-mayor replaces the mayor. The mayor receives an annual salary, ex-
pense allowance and other allowances that the council deems necessary as pre-
scribed in the annual budget, which is approved by the Council of Ministers.
5.1.2. Committees
34
Part IV, Municipalities Act.
35
Article 46, Part V, Municipalities Act.
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local government in cyprus
the mayor in the execution of his duties, the coordination of the tasks of several
committees and the execution of other duties entrusted to the committee by the
council or the mayor. The municipality’s annual accounts are audited by the
Auditor General of the Republic. Other municipal committees may be estab-
lished by the council, but will have only advisory capacity and no executive
role.
The community council consists of the president of the community and the
members of the council ranging from 4 -8 members, depending on the number
of voters. Elections take place on the same day as the municipality elections
and similar rules and procedure apply. Parishes within the municipalities have
presidents and deputies, but no community councils. The Council of Ministers
may not call for elections in certain communities for reasons of public interest.
If this occurs, the Minister of the Interior has power to appoint the president of
the community, the deputy and other members of the Council.36
The president of the community convenes the monthly meeting of the coun-
cil or whenever he considers it necessary or in response to a written request of
1/3 of the council members. There is a quorum if half of the members are
present and, in the case of a tie vote, the president has the tie-breaking vote. The
president also must enforce the decisions of the council and, if he fails to do so,
the Minister of the Interior will appoint the District Officer to enforce them.
The president of the community is entitled to receive a compensation according
to the Law. He has a wide range of competences including representing the
community in all official activities, maintaining law and order, registering
births and deaths, issuing certificates for movable or immovable property and,
in general, exercising all the duties and powers vested in him under law. 37
The members of the community council have the obligation and the right to
execute all the powers provided for under law, including the power to issue
regulations, upon approval by the Minister of the Interior and have them pub-
lished in the Official Gazette of the Republic. These regulations refer to the
36
Part IV, Communities Act.
37
Part V, Communities Act.
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george coucounis
According to the law40, the municipal council has the authority to create
senior staff positions, such as the town secretary, the municipal engineer, the
municipal treasurer, the municipal medical officer, the municipal sanitary in-
spector or any head of any department declared by the council as independent,
to assist in the coordination and clear prescription of tasks within the munici-
pality. The qualifications of the municipal officers and employees for appoint-
ment, their service structure, rights, obligations and salaries are generally the
same as those applied to Public Servants. The law makes a clear distinction
between officers and workmen. The appointment of workmen is governed by
law41 and implemented by a committee consisting of members of the council
and chaired by the mayor.
At the communities level, the council has the power to regulate the general
terms of service, duties and disciplinary procedures, number of posts, service
structures and salaries of community employees.42 Also, the Council may ap-
point qualified non-members of the Council to fill the position of secretary and
any other vacant post. In this regard, there is a legal distinction between those
special council officers and regular public employees.
The main sources of revenue of municipalities are municipal taxes, fees and
duties (professional tax, immovable property tax, hotel accommodation tax, fees
for issuing permits and licenses, fees for waste collection, fines etc), as well as
state grants and subsidies. One third of the annual grant is equally divided among
all municipalities and the remaining two thirds are divided proportionally, ac-
cording to the total number of inhabitants of each municipality. Also, central
38
Part VI, Communities Act.
39
Article 84, Part IX of the Communities Act.
40
Article 54, Part V of the Municipalities Act.
41
Article 56 Part V of the Municipalities Act.
42
Part VI of the Communities Act.
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local government in cyprus
43
Union of Cyprus Municipalities: www.ucm.org.cy
44
Part VIII of the Communities Act.
45
Articles 62 & 63, Part V of the Municipalities Act.
105
george coucounis
cide on the sale, exchange and lease of any movable or immovable community
property. Council decisions regarding immovable property are effective only if
supported by 2/3 of the council members and are approved by the Minister of
the Interior. In the ordinary course of its property transactions, the council,
represented by its president, may enter into a written or oral agreement. In any
other instance, however, the agreement must be in writing, bear the seal of the
council and the signature of the president and two authorized members.46
46
Part VII of the Communities Act.
47
Article 87, Part VII of the Municipalities Act.
48
Article 63, Part V of the Municipalities Act.
49
Article 65-67, Part V and Articles 80-82 of Part VI of the Municipalities Act.
50
Κ.Δ.Π. 119/2005 (in English Administrative Regulatory Act 119/2005).
51
Improvement Board Strovolos v. Republic (1983) 3 C.L.R. 434, affirmed by the Plenary
Session of the Supreme Court in Δήμος Έγκωμης ν. Δημοκρατίας (1997) 3 Α.Α.Δ. 346. (In
English. Municipality of Engomi v. The Republic (1997) 3 C.L.R. 346).
106
local government in cyprus
cordance with art. 146 of the Constitution, any affected person may file an ac-
tion for annulment before the Supreme Court of Cyprus if a local authority
passes an act or commits an omission that is contrary to the provisions upheld
by the Constitution or by any law; exceeds or abuses in the exercise of the pow-
ers vested in them; or acts (or fails to do so) in a manner that affects directly and
adversely affects a person’s legitimate interests.
On the other hand, attention should also be given to the action of the Euro-
pean Union Court of Justice. Several provisions of the European Union treaties,
as well as directives and regulations, apply also to local authorities within the
European Union, including those in Cyprus. For example, the ECJ ruling on the
Helmut Muller case52 made it clear that procurement rules are applicable to a
local authority if the action is performed for its direct economic benefit and if it
has defined the action in such a way that exceeds mere planning powers.
52
C-451/2008.
53
The Office of the Ombudsman, www.ombudsman.gov.cy
54
Law 3/91 as amended.
55
Local Authorities are subjected to the Ministry of Interior.
107
george coucounis
made. The Ombudsman normally maintains contact with the chief executive of
the municipality, but in some municipalities, officers are designated who liaise
with the Ombudsman. Local authorities are obliged to heed the Ombudsman’s
decision, and if this is not done, the Ombudsman will inform the Council of
Ministers of the act of disobedience. If the Ombudsman determines that the
problem is systemic, local authorities may be asked to adopt a different ap-
proach. Complaint offices are designated in public buildings to make it easier
for citizens to exercise their right to complaint.56
56
The Office of the Ombudsman: www.ombudsman.gov.cy
57
Improvement Board of Strovolos v. The Republic (1983) 3A C.L.R. 434.
108
local government in cyprus
12.1. Case-law
The Attorney General of the Republic v. Mustafa Ibrahim and others (1964)
C.L.R.195
Toulla Malachtou etc. v. Christodoulos K. Armefti and Another (1987) 1 C.L.R.
207
Παντελίδης –ν- Λεαντζή (1991) 3 Α.Α.Δ. 293 (In English. Pantelides v.
Leantzi (1991) 3 C.L.R. 293)
Αναφορικά με την αίτηση του Χρίστου Ματσιά από τη Σουαζιλάνδη
για την καταχώρηση για έκδοση διατάγματος certiorari, Πολ. Αίτ.
65/2009, ημερ. 1/02/2011. (In English. The case of Christos Matsia from
Swaziland on the filing of a certiorari order, Civil Appl. 65/2009, dated
1/02/2011)
Improvement Board of Strovolos v. Republic (1983) 3 C.L.R. 434,
Δήμος Έγκωμης ν. Δημοκρατίας (1997) 3 Α.Α.Δ. 346. (In English. Mu-
nicipality of Engomi v. The Republic (1997) 3 C.L.R. 346)
Helmut Müller GmbH v Bundesanstalt für Immobilienaufgaben, C-451/08.
12.2. Bibliography
109
george coucounis
110
Chapter 5:
LOCAL GOVERNMENT IN THE
CZECH REPUBLIC
Stanislav KADEČKA
111
stanislav kadečka
112
local government in the czech republic
erning units, and into regions, which are the higher territorial self-governing
units». The newest principal development of the Czech local and regional
autonomy was represented by the reform of territorial government, performed
mainly in 1997-2002. In the first phase, the Constitutional Act of 1997 estab-
lished 14 regions, but their legal regulation was not adopted until May 2000.
At the same time, a new Act on Municipalities and an Act on District Au-
thorities were adopted. The first phase of territorial government reform fin-
ished on the day of elections to the regional councils, in November 2000.
Regional councils and bodies were established. The second phase of the re-
form consisted in terminating the activity of the old district authorities by the
end of 2002 and in delegating their competencies to the new local and re-
gional authorities.
The reform of 1997-2002 has established a new structure and organiza-
tion of public administration, but it has not implemented an ideal territorial
government. The most problematic issues are: the lack of rationality; grow-
ing financial demands of local and regional authorities; and the lack of ef-
fectiveness of the current system (see further sections of this contribution).
At present, the main problem is realisation of the so-called smart govern-
ment, that should ensure effective public administration and friendly public
services. Thus, at present there are not significant discussions about organi-
zational reforms.
The Czech Republic is subdivided into municipalities, which are the basic
units of territorial government, and into regions, which are the «higher territo-
rial self-governing units».1 Every part of the territory of the Czech Republic is
a part of one municipality. Nowadays there are 6246 municipalities in the
Czech Republic, which are dived into different types:
– (common) municipalities (obce) (5447 municipalities)
– market town (městyse) (206)
– cities (města) (569)
– statutory cities (statutární města) (23)
– the Capital City of Prague (hlavní město Praha).
Whereas the designation of «market towns» and «cities» has got only a for-
mal character, without any other legal consequences, the «statutory cities» may
have their territory subdivided into smaller self-governing units: the city dis-
tricts or city boroughs.
1
The Czech legal terminology uses the wording «territorial self-governing units» instead of
«local and regional authorities», but both are used interchangeably here (editor’s note).
113
stanislav kadečka
2
Source: Malý lexikon obcí ČR 2010, Praha : Český statistický úřad 2010, http://www.czso.cz
3
Source: Malý lexikon obcí ČR 2010, Praha : Český statistický úřad 2010, http://www.czso.cz
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4
The Czech Republic is defined by the Constitution as a sovereign, unitary, and democratic
State, governed by the rule of law, founded on the respect for the rights and freedoms of the man
and the citizens. The Czech Republic shall observe its obligations resulting from international law.
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the Czech Republic, as a region and a municipality, and the status of the
city districts. Moreover, it regulates its competences, bodies and the
forms of State control over the exercise of independent and delegated
competences by the Capital City.
6. The Elections to Municipal Councils Act, No. 491/2001 Coll. (zákon o
volbách do zastupitelstev obcí). This act regulates, in conformity with
EU law, the requirements for the exercise of the right to vote and to be
elected in the elections to the municipal councils, and the range of judi-
cial review of such elections.
7. The Officers of Territorial Self-Governing Units Act, No. 312/2002 Coll.
(zákon o úřednících územních samosprávných celků). This statute regu-
lates the employment regime of the personnel of local and regional au-
thorities.
Apart from this parliamentary legislation, there are several Government de-
crees as well as Ministries’ ordinances (mainly from the Ministry of the Interi-
or). All these regulations have only an executive character. For example, we
may mention here two of them: the Government’s Decree on the salary and
relationships of the employees of State agencies, other bodies and municipali-
ties; and the Ministry of the Interior Ordinance on specific professional eligibil-
ity of employees of territorial self-governing units.
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local government in the czech republic
Legal regulations of municipal and regional competences are rather similar, but
there is one essential difference: in the case of delegated competences, the re-
gional authority behaves as a second (appellate) instance and also controls mu-
nicipal bodies when they perform delegated competences.
The independent competences of municipalities include matters that lay in
the interest of the local community as well as matters that are stipulated by
law. Moreover, the independent competences of municipalities include, in par-
ticular, the matters stipulated under sections 84, 85 and 102 of the Municipali-
ties Act. Therefore, the municipality also attends to the fostering of conditions
for the development of social care and to the satisfaction of the needs of its
citizens. This includes, in particular, meeting the needs for housing, the pro-
tection and development of health care, transport and communications, infor-
mation, education and training, general cultural development, and the protec-
tion of public order.
In addition to their independent competences, all municipalities in the
Czech Republic have delegated competences. However, the extension of those
delegated competences differs according to the type of municipality (as pre-
sented at point 2, supra). Thus, the so-called «municipality with a commis-
sioned municipal office» has also delegated competences in those fields that
are not given to a «common» municipality. The delegated competences are
carried out by the «municipality with a commissioned municipal office» not
only in relation to its own territory but also in relation to the administrative
«district» (the «district» is a geographical subdivision of the country that in-
cludes territories of other municipalities). The same rule applies to the so-
called «municipality with enlarged powers». However, this does not mean any
subordination among municipalities (even in the case of the performance of
State administration).
When carrying out delegated competences, the municipal bodies are gov-
erned by acts and other legal regulations, like resolutions and directives of the
central government agencies. These governmental resolutions and directives
may not impose obligations on the bodies of municipalities, unless these obli-
gations are stipulated by the law. Moreover, the municipality actions in the
field of delegated competences are also governed by draft measures and deci-
sions of the regional offices, which may inspect local authorities in the per-
formance of delegated competence. As noted, delegated competences are con-
veyed to local authorities by specific, sectoral legislation, and not by the
Municipalities Act. Nowadays, there are some 150 different sectoral statutes
that delegate the performance of different types of State administration duties
and tasks to municipalities, for example in the following areas: register of in-
habitants; social security; social and legal protection of children; education;
monument preservation; nature conservation and landscape protection; agricul-
ture; transportation; crisis and emergencies management; spatial planning and
Building Code, etc.
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5.1. Introduction
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local government in the czech republic
gated to it by the municipal council and submit their opinions and proposals to
the said council. The committees are accountable to the municipal council for
its activities. The number of members of a committee shall always be odd. On
the other hand, the municipal council may establish «commissions» as initia-
tive and advisory bodies. These commissions shall submit their opinions and
proposals to the municipal board. A commission shall also be an executive
body if it receives delegated competence pursuant to the Municipalities Act. As
a rule, the commissions are accountable for its activities to the municipal board,
but they are accountable to the mayor in matters concerning the performance of
delegated competence.
The main competences of the municipal council are, inter alia:
– to approve the programme for the development of municipality,
– to publish generally binding regulations of the municipality,
– to call for a local referendum,
– to establish and abolish committees, to elect their chairpersons and other
members, and to recall them from their office,
– to elect the mayor, vice-mayors and other members of the municipal board
(boardlors) and to recall them from their office; to set the number of mem-
bers of the municipal board and the number of members of the municipal
council, to establish and abolish committees, to elect their chairpersons
and other members and to recall them from their office,
– to establish and abolish the municipal police force,
– to decide on the co-operation of the municipality with other municipalities
and on the form of this co-operation,
– to make decisions on the establishment and names of parts of the munici-
pality, and on the names of streets and other public places.
The municipal board is the executive body of the municipality and is ac-
countable to the municipal council for its activities. Unless stipulated otherwise
by law, the municipal board may not make decisions within the scope of dele-
gated competences. Unless stipulated otherwise by the Municipalities Act, the
powers of the municipal board shall be exercised by the mayor in those mu-
nicipalities lacking a municipal board.
The municipal board consists of the mayor, the vice-mayors (vice-chairper-
sons) and other members of the board, elected from the ranks of the members
of the municipal council. The number of members of the municipal board shall
be odd and shall be a minimum of five and a maximum of eleven members,
with an important caveat: the number of members of the municipal board shall
not be more than one third of the number of councillors. There is no municipal
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The municipal council elects the mayor and the vice-mayor (or vice-may-
ors) from among its members. The mayor and vice-mayors must be citizens of
the Czech Republic. They are accountable to the municipal council for the per-
formance of their office.
The mayor, who represents the municipality in external affairs, convenes
and, as a rule, chairs the meetings of the municipal council and the municipal
board. With the approval of the director of the regional office, the mayor may
appoint and recall the secretary of the municipal office and specify his salary.
The mayor also carries out the tasks of an employer, concludes and terminates
employment relations with local employees and sets their salary, unless there is
a secretary of a municipal office in the municipality (see below). The mayor
shall also ensure the performance of delegated competence in the municipality
if there is no secretary of the municipal office and shall make decisions on af-
fairs in the scope of the municipality’s independent competences entrusted by
the municipal board.
The vice-mayor shall deputise for the mayor. The municipal council may
elect more than one vice-mayors and authorise them to carry out certain tasks.
The vice-mayor appointed by the municipal council shall deputise for the may-
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or when the mayor is absent or during periods in which the mayor does not
perform his office. In cases stipulated by separate Acts, the mayor shall estab-
lish special bodies of the municipality for the purposes of performing delegated
competence, and appoint and recall the members thereof.
The municipal office consists of the mayor, the vice-mayors, the secretary
of the municipal office (if this position is established) and employees of the
municipality. The mayor is the head of the municipal office. The municipal
board may establish departments and divisions for individual sections of ac-
tivities of the municipal office in which the employees of the municipality are
incorporated. In the domain of independent competences, the municipal office
shall fulfil the tasks bestowed on it by the municipal council or municipal board
and shall assist in the activities of committees and commissions. The municipal
office shall also carry out delegated competences, with the exception of matters
that belong to another body of the municipality.
The position of secretary of the municipal office, who is an employee of the
municipality, shall be established in «municipalities with a commissioned mu-
nicipal office» and in «municipalities with extended powers» (on this concepts
see supra). Other municipalities may establish the position of secretary of the
municipal office. The secretary of the municipal office is accountable to the
mayor for the fulfilment of the tasks of the said office in the framework of both
independent and delegated competences. If the position of secretary of the mu-
nicipal office is not established or if no secretary of a municipal office is ap-
pointed, the tasks of this secretariat shall be carried out by the mayor. The sec-
retary of the municipal office shall attend meetings of the municipal council
and municipal board and shall be entitled to cast an advisory vote. He/she may
not hold positions in political parties or movements.
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The human resources of local and regional authorities are employed under
the (private law) Labour Code,5 as modified by the Officials of Territorial Gov-
ernments Act. This statute regulates in detail the employment relationship of
officials of local and regional authorities and their requirements in terms of
education, but does not apply to public employees such as, among others, em-
ployees who perform only auxiliary service or manual work. Especially, it reg-
ulates:
– the prerequisites for the creation of employment of the official and the
conditions for appointing officials,
– the public call and the recruitment process,
– the special regulation of employment,
– the basic obligations of public employees.
The mayor is the head of the municipal office (see above).6 The position of
secretary of the municipal office, who is an employee of the municipality, shall
5
State public employees working at the territorial State agencies are employed exclusively
under the terms of the (private law) Labour Code. Although a State Service Act was adopted in
2002, it is still not in force.
6
As stated above (see supra, point 5.3) the municipal board discharges most of the key
competences in the matter of personnel management.
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local government in the czech republic
The income of municipal and regional budgets in the Czech Republic in-
cludes primarily:
– the revenue from their own property, property rights and economic activities,
– the revenue from their own administrative activities (including revenue
from the exercise of deconcentrated State tasks in the form of tariffs), and
the income from collected penalties and levies,
– the revenue from local charges,
– the revenue from taxes or a proportions of taxes,
– subsidies from the State budget and funds, or subsidies from the budget of
the «higher territorial self-governing units».
– financial gifts and contributions.
In the Czech Republic, the so-called «tax and charge» income is the most
important source among the abovementioned types of revenue. For instance, in
2006 this kind of income represented 54% of the total income of municipal
budgets. This includes a proportion of shared taxes and the exclusive tax in-
come.
Under the tax laws and regulations, municipalities in the Czech Republic
share some percentages in the national revenues:
1) 21.4% of the national collection of the value added tax (VAT), the per-
sonal income tax, and the corporate tax; and 60% of the State revenue
coming from the personal tax on business income.
2) 30% of the personal business tax, according to the place of residence of
the taxpayer.
3) 1.5% of the personal tax on non-business income.
For what concerns Regions, they share 8.92% of the State revenue derived
from the VAT, the personal tax on non-business income and the corporate tax.
They are also entitled to a participation in the revenue coming from the tax on
personal business income. The proportion of each municipality in the shared
taxes is mainly determined (94% of it) by applying a group of objective and
technical criteria, such as the number of residents, or the municipality’s size.
The most important tax revenue of municipal budgets is undoubtedly the pro-
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portion of the shared taxes, which represents more than two thirds of the tax
revenue of municipalities. Each region’s participation in the shared taxes is
determined by the financial importance of the competences delegated to the
regions by the State in the framework of the public administration reform.
Municipalities have also exclusive taxes, like the real estate tax and the cor-
porate income tax. As for regions, their only exclusive tax revenue is the reve-
nue of corporate income tax, if the taxpayer is a resident of the respective re-
gion. Among the exclusive tax revenues of local and regional authorities, some
charges and levies may also be mentioned, especially the so-called local charg-
es, which are imposed by municipality’s binding ordinances. However, this
source of income does only represent about 5% of the tax income of munici-
palities.
A general assessment of the situation of municipal and regional income in
the Czech Republic should take in consideration the following two aspects:
first, almost one third of municipal income and roughly two thirds of regional
income are represented by subsidies, coming especially from the State budget
and funds. Second, the taxing powers of self-governments (i.e. the authority to
decide autonomously on the amount of tax revenue) is relatively small. It really
exists only at the municipal level, and only in the field of the real estate tax,
since municipalities may establish one local coefficient of 2, 3, 4 or 5, by a local
regulation, for all realty assets within the territory of the municipality. There-
fore, municipalities can only minimally influence the taxing revenue, and the
regions cannot even influence it at all.
This critical view can also be supported by the fact that the Czech Republic
has not committed itself to be bound by the provisions of Article 9, Paragraph
3, Paragraph 5 and Paragraph 6, ECLSG, which establish e.g. that «at least part
of the financial resources of local authorities shall derive from local taxes and
charges, within the limits of statute, of which they have the power to determine
the rate». Moreover, the bigger cities receive, in a rather unfairly way, almost
a quadruple of income per one inhabitant in comparison with the smallest mu-
nicipalities.
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local government in the czech republic
As mentioned above, the point of departure for the Czech municipal and
regional systems is the so-called mixed (or merged) model, in which regions
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and municipalities exercise, on the one hand, a delegated power from the State
and, on the other hand, its own (or independent) power. The latter is an autono-
mous power, enshrined in the right to self-government and in the applicable
constitutional provisions. These independent competences may be interfered
with by the State only if this is necessary for the protection of the law and can
only be controlled in the manner stipulated by legal procedures. On the con-
trary, when municipalities and regions discharge delegated powers, they act as
deconcentrated State agencies, according to laws and regulations adopted on
the basis of Art. 105 of the Czech Constitution. Therefore, the scope of State
control over local authorities’ actions depends on which type of competences
those bodies are discharging.
The regulation of the State supervision and control over the performance of
competences by municipalities and regions is contained in several statutes: the
Municipalities Act, the Regions Act, the Review of Finances of Territorial Self-
Governing Units Act, the Financial Control in Public Administration Act and
the Code of Administrative Procedure. In this domain, Czech Law distinguish-
es several situations, which are summarily presented:
1) Supervision of the local measures adopted in the framework of inde-
pendent competences: Should a general regulation of a municipality con-
tradict the law, the Ministry of Interior may decide to suspend the effects
of the said regulation and shall submit a proposal for repealing it to the
Constitutional Court. In case that another type of local measure (a reso-
lution, a decision or any adjudication) potentially contradicts the law, the
Ministry of Interior may decide to suspend the effects of the contested
measure and shall submit a proposal for its annulment to the regional
administrative court.
2) Supervision of measures adopted in the framework of delegated compe-
tence: Should a municipal ordinance contradict the law or other legal
regulation, the regional office may decide to suspend the effects of the
said ordinance and shall submit a proposal for the repeal of it to the Con-
stitutional Court. In the case of other measures (resolutions, decisions)
contradicting a legal rule, a government resolution or a directive of a
central administration office, the regional office shall repeal it.
3) Control of the performance of the independent competences of a mu-
nicipality: this control (implemented by the Ministry of the Interior)
aims at finding out if the municipal bodies adhere to laws and other legal
regulations in the performance of the independent competence.
4) Control of the performance of the delegated competence of a municipal-
ity: the regional offices do control the performance of the competences
delegated to the municipal bodies. This control purports to check wheth-
er the municipal bodies, in the performance of the delegated compe-
tence, comply with the laws, administrative regulations and act within
the limits of Government resolutions and directives.
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local government in the czech republic
The ECLSG (see point 3, above) states that «local authorities shall have the
right of recourse to a judicial remedy in order to secure free exercise of their
powers and respect for such principles of local self‑government as are en-
shrined in the constitution or domestic legislation». The necessary legal protec-
tion of territorial self-government is in the Czech Republic provided mainly by
the following institutions and mechanism. First, there is a statutory regulation
of State control (as presented supra), which, in substance and procedurally,
limits the State powers to supervise and control local authorities. Moreover,
certain control powers are reserved to the courts, which decide in the proceed-
ings where the local government unit is the full decision-maker.
Second, and besides the standard protection of subjective rights provided by
the general and administrative courts to all persons, Czech law gives self-gov-
ernments two other instruments. On the one hand, in the case of a local council
dissolution, the municipality has got a specific legal action against the decision
of the Ministry of the Interior by which the local council is dissolved. On the
other hand, a competence action, based on which the Supreme Administrative
Court decides on a dispute about competences, whose parties are a State agency
and a local or regional authority.
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stanislav kadečka
7
On the other hand, we should recall that there are presently 20 permanent committees in the
European Parliament, of which one is the Committee for the Regional Development.
8
Source: Studies’s service of the Committee of the Regions: The selection process for Com-
mittee of the Regions members Procedures in the Member States. Belgium: European Communi-
ties, 2009.
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local government in the czech republic
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Havlan, P.: Majetek obcí a krajů v platné právní úpravě. (Property of munici-
palities and regions under the legal regulation in effect.) 2nd edition. Praha:
Linde, 2008.
Kadečka, S.: Právo obcí a krajů v České republice (Law of municipalities and
regions in the Czech Republic). Praha: C. H. Beck, 2003.
Kadečka, S.; Havlan, P.; Valachová, K. (eds.): Právní regulace místní (a
regionální) samosprávy: sborník z 4. letní mezinárodní konference/work-
shopu: (Kroměříž, Právnická fakulta Masarykovy univerzity a Veřejný
ochránce práv, 19. - 20. června 2008). (Legal Regulation of Local (and Re-
gional) Self-Government).Brno: Masarykova univerzita, 2008.
Kopecký, M.: Právní postavení obcí a krajů – základy komunálního práva.
(Legal status of municipalities and regions – basis of communal law). Praha:
Wolters Kluwer, 2010.
Koudelka, Z.: Samospráva. (Self-government). Praha: Linde, 2007.
Marek, J.; Pánková, M.; Šímová, P. (eds.): Public Administration in the Czech
Republic. Praha: Ministry of the Interior of the Czech Republic, 2004.
Pařízková, I.: Finance územní samosprávy. (Finances of territorial self-gov-
ernment). Brno: Masarykova univerzita – Právnická fakulta, 2008.
Peková, J.: Hospodaření a finance územní samosprávy. (Management and fi-
nances of territorial self-government). Praha: Management Press, 2004.
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133
Chapter 6:
LOCAL GOVERNMENT IN DENMARK
Emil GREVE
Denmark has a long history of local self-government. Since the middle ages
there has been some form of local authority with shifting levels of self-govern-
ment. In 1849 local self-government was given constitutional protection. Prior
to 1849 the municipalities had only administered the school system and the
poor-law system. After 1849 more and more legislation was passed, increasing
the municipalities’ areas of statutory responsibility. Since the 1860s the mu-
nicipalities have been undertaking tasks without statutory authority. This was
unchallenged by Parliament and it evolved into the customary «local authority
mandate». This mandate and its limits are based on general considerations and
the rationale of local self-government.1
The first local government reform was enacted by Parliament in 1970. The
reform greatly reduced the number of the local authorities to 275 municipalities
and 13 county authorities. The county authorities’ tasks typically required a
larger population base than that of the average municipality or they required a
higher level of specialisation. Both the municipalities and county authorities
had taxing authority and non-statutory municipality authority. The second local
government reform was enacted in 2007. The reform reduced the number of
municipalities to 98 and replaced the 13 county authorities with 5 regions. The
main idea behind the municipalities is that some tasks are better dealt with lo-
cally, because they require knowledge of local citizens’ daily concerns. The
regions are not just large municipalities; they are a special kind of decentralised
authority. The main difference between the former county authorities and the
new regions is that the regions do not have a local authority mandate or any
taxing authority. The county authorities had taxing authority, which made it
1
The local authority mandate is further described in section 4: Competences, powers and
services of local authorities.
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emil greve
almost impossible for the national government to control the aggregate tax lev-
el in the country.
The most important aims of the reform were to remove taxing authority
from the county authorities and to make clear distinctions between the tasks of
the State, the regions and the municipalities. Almost all the former county au-
thorities’ tasks have been given to the municipalities. The regions have been
given one main task, to administer the health sector. Both prior to and since the
reform there has been a debate about its expediency and legality.2 The new re-
form has been much criticised and it has been accused of being a threat to local
democracy and self-governance.
One of the consequences of the second local government reform is that the
average municipality now has 55,000 inhabitants, compared to an average of
19,000 inhabitants before the reform. The municipalities now manage tasks of
a magnitude that could just as well be managed by State authorities, for exam-
ple integration and language education, employment and active employment
efforts, environmental protection, schools, utilities and emergency services. It
has been argued that it is very far from the original idea of local self-governing
bodies managing local tasks to have such substantial administrative bodies
managing many tasks that are traditionally those of the State.
As a result of technological developments the public authorities have un-
dergone extensive digitisation over the last ten years. There is an ongoing
debate about the extent to which the municipalities should embrace new
technology, and how they should deal with the legal challenges of a digitised
administration. Experts have estimated that the municipalities can achieve
cost savings of EUR 14 million in the handling of mail alone, by sending e-
mails to citizens via especially secure e-mailboxes.3 The practical challenges
are to develop good e-solutions and to motivate citizens to communicate
with the municipalities electronically. The legal challenges lie in applying
the normal rules of administration to digitised administration. It is interest-
ing to ask what solutions a municipality must provide for its citizens if it
decides to use digital communications exclusively. For example, is it suffi-
cient to make computers publicly available in places like town halls and
public libraries or must a municipality provide home computers for all citi-
zens who cannot afford one?
The municipalities are responsible for all employment and active employ-
ment efforts in Denmark. During the next couple of years the municipalities
must prove that it was right to give them full responsibility in this area. In the
face of the current financial crisis and rising unemployment, this may very well
prove to be a very difficult and expensive task.
2
See section 3: The current basic legal framework of local government and local autonomy.
3
Local Government Denmark: http://www.kl.dk/Kommunalpolitik1/Artikler/73076/2010/06/
Digitalisering-frigiver-105-mio-kr-til-borgernar-service/
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local government in denmark
4
Revsbech, Karsten: Kommunernes opgaver, 2nd ed., 2010, p. 19.
137
emil greve
ment once. In connection with the debate about the second local government
reform, the Association of County Councils pleaded that it was contrary to Ar-
ticle 9(3) of the Charter for the new regional councils to be financed only by a
State hospital tax. This argument was rejected, mainly because when depositing
its instrument of ratification, acceptance or approval, each party to the Charter
may specify the categories of local or regional authorities to which it intends to
apply the Charter or exclude from its scope.5 Furthermore, the Charter does not
require there to be more than one level of local self-government, so that as long
as Denmark has municipalities with taxing authority it is not in breach of the
Charter.
In 2008, Denmark declared that in future the Charter would only apply to
municipalities, and repeated that the Charter does not apply to Greenland and
the Faeroe Islands. This was presumably in order to avoid future discussions
about which local authorities the Charter applies to.
There are a number of other laws that contribute to the procedural frame-
work of the municipalities; three of these are mentioned here:
– The Local Government Act is by far the most import legislation governing
the municipalities. It contains the rules on how the municipalities are to be
organised, meeting and voting procedures, the election and powers of may-
ors, financial administration, supervision, control and potential sanctions.
– The Local and Regional Government Election Act contains rules on elec-
tion procedures and deals with the questions of who has the right to vote
and the right to be elected.6
– The Act on municipalities undertaking tasks on behalf of other public au-
thorities and participation in undertakings by municipalities and regions
governs situations in which municipalities can cooperate with other public
authorities and expands the area in which municipalities can cooperate
with the private sector.7
A municipal council has a dual function. Its primary function is to be the
leading body of the municipality; this is seen when a council decides to use the
municipality’s finances to undertake different tasks. A council’s right to do so
is based on the local authority mandate. A council’s secondary function is to
act as a regular public authority when administering laws and tasks delegated
by legislators, for example when a council issues injunctions under the Envi-
ronmental Protection Act or assigns children to schools. There are many stat-
utes that impose tasks on the municipalities and, together with the local au-
thority mandate, they constitute the substantial basis for the municipalities’
5
See the European Charter of Local Self-Government, Article 13.
6
Local and Regional Government Election Act, Law No 144 of 24 February 2009.
7
The Act on municipalities’ undertaking of task on behaves of other public authorities and
municipalities’ and regions’ participation in corporations (Law No 548 of 8 June 2006).
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local government in denmark
tasks.8 It is not appropriate to give a detailed account here of the various stat-
utes that impose tasks on the municipalities. The important thing to note is that
the municipalities deal with a great variety of tasks required by the legislature,
some of which are very substantial.9
Municipalities adopt their own rules of procedure, see the Local Govern-
ment Act, Section 2(4). The rules of procedure normally contain rules on con-
vening meetings, approving the order of business, voting etc. The municipali-
ties do not have an unlimited right to make their rules of procedure. They are
still bound by the procedural rules in the Local Government Act, for example
the rule that council meetings must in principle be open to the public. The mu-
nicipalities are also bound by the Public Administration Act and fundamental
principles of administrative law.
As for the capital city, Copenhagen has enjoyed a special status in Denmark
since its citizens heroically defended the city against the Swedish army in 1659.
Today the municipal council of Copenhagen is called the City Council and its
mayor is called the Lord Mayor. The Council has seven committees that take care
of the management of tasks within their areas of responsibility. Overall decisions
are made by the City Council as a whole. This is similar to the usual system in the
municipalities. The difference is that in the City Council, each committee chair-
man is called a «mayor» and is an ex officio member of the Finance Committee.
Furthermore each committee chairman is the top executive of the administration
dealing with the respective committee’s area of responsibility.
As a general rule Danish authorities cannot act unless they have statutory
authority to do so. Many statutes require the municipalities to undertake certain
tasks or provide certain services. These statutes also give authority to act and
use funds to provide the services. These laws often grant authority to use en-
forcement notices, prohibitions, make inspections, impose default fines, expro-
priate private property etc. Rulemaking capacity can also be granted to the mu-
nicipalities by law. An example is the Environmental Protection Act, Section
45(4), which states that «The municipal council lays down regulations concern-
ing the extent and organisation of municipal waste management.»10
Apart from statutory authority to make rules, the municipalities have a non-
statutory authority to issue rules on institutional matters. When a municipality
8
The rules of local government authorisation are further described in section 4: Compe-
tences, powers and services of local authorities.
9
Further described in section 4: Competences, powers and services of local authorities.
10
The Environmental Protection Act, Law No 879 of 26 June 2010.
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establishes and runs an institution, it can make rules of conduct so that, for in-
stance, a municipality can exclude dogs and other animals from libraries or
prohibit the use of alcohol in rehabilitation centres. The reasoning behind this
authority is that if a municipality has the authority to establish and run an insti-
tution, a fortiori it has the authority to make the rules of conduct that are neces-
sary to fulfil the purpose of the institution. This authority is based on customary
law and it must be proportionate to the purpose of the institution. This author-
ity can never be used to make restrictions on personal freedom, as such restric-
tions would require explicit authority by law.11
Danish law gives municipal councils a relatively independent position.
They are distinct legal persons and as such are capable of owning property,
initiating legal proceedings etc. In this they differ from government minis-
tries or State committees, which are not distinct legal persons and whatever
property they may have at their disposal is owned by the State. Furthermore,
the municipalities have their own funds from local taxation and from block
grants from the State. As a result of the councils’ independent position and
their own funding, it is accepted that they can make financial arrangements
without statutory authority. This non-statutory unwritten authority is called
the «local authority mandate» (Kommunalfuldmagten)12 and will be described
further below.
Prior to the second local government reform, the municipalities provided a
sizeable part of the traditional welfare services, while the State and the county
councils provided the remainder of the welfare services. One of the aims of the
second local government reform was to make clear distinctions between the
tasks of the State, the regions and the municipalities, and to increase the amount
of welfare services provided by the municipalities.
Today the municipalities are required to provide more services than before
the reform. The extent of the services can be specifically determined by law so
that it is mandatory for the municipalities to provide services to the extent spec-
ified. However, a law can also allow municipalities to determine the extent of a
service provision. In such cases the extent of a service will be based on political
choice or on a discretionary assessment of needs and will differ between mu-
nicipalities. A law will typically contain some specific mandatory require-
ments, and leave some scope for discretion. For example, according to the law
on day-care provision, a municipality must provide a specific number of places
in day-care institutions, but the municipality can decide on the number of insti-
tutions and carers required for the task. 13
11
Garde, Jens et al.: Forvaltningsret – Almindelige emner, 5th ed., 2009, p. 172 f.
12
Revsbech, Karsten: Chapter 7 in Børge Dahl, Torben Melchior and Ditlev Tamm (eds),
Danish Law in a European Perspective.
13
Local Government Denmark (LGDK), The Danish Local Government System, February
2009, p. 13.
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local government in denmark
14
The Ministry of Finance: http://www.fm.dk/Arbejdsomraader/Kommuner%20og%20re-
gioner/Opgaver%20for%20kommuner%20og%20regioner.aspx
15
Garde, Jens et al.: Forvaltningsret – Almindelige emner, 5th ed., 2009, p. 172 f.
16
Revsbech, Karsten: Kommunernes opgaver, 2nd ed., 2010, p. 25 f.
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rangements must at least have a local aim. Furthermore, other legal doctrines
limit a municipality’s authority to make financial arrangements. There are
several works on this issue in the Danish legal literature; a full discussion of
this topic is not possible in the present context, but the following is a brief
review of the main requirements that must be met if a municipality uses the
local authority mandate:
– The arrangement must be for the common good. This requirement is vague
and it is hard to determine precise limits to the local authority mandate on
the basis of it. But it expresses the idea that an arrangement must have a
general purpose and be for the benefit of the citizens in general.17
– The arrangement must be of municipal interest. The «municipal inter-
est» is to a great extent determined by tradition, which can be derived
from case law and administrative practice. «Municipal interest» is not
static, but changes over time, which is why it can be difficult to define it.
In attempting to define a «municipal interest», one can start by determin-
ing what a municipality is and what it does. A municipality is an asso-
ciation of citizens within a geographically defined area who tackle com-
mon challenges together. An activity will therefore be of municipal
interest if it accommodates a common need of the local society that con-
stitutes the municipality.18 This does not mean that every citizen in the
municipality must have that specific need, but that in principle all or
many of the municipality’s citizens can benefit from a measure. The
consequence of this requirement is that a municipality cannot give finan-
cial or social support to individuals or groups of individuals without
statutory authority.
The principle of locality is connected with the requirement for a municipal
interest. The principle states that a municipality can only undertake tasks that
are connected to the interests of that particular municipality. The main rule is
that an activity must be located within the borders of the municipality and can
only exceptionally be located outside its borders, if it is necessary or natural to
do so. Furthermore, the principle states that municipalities cannot undertake
tasks that are properly those of other levels of administration, such as regional
or State tasks. The level of administration to which a certain task belongs can
be difficult to determine, but as mentioned earlier one of the purposes of the
second local government reform was to clarify which tasks are those of the
municipalities, and which are those of the regions and the State. Municipalities
must also respect the private sector, so that in principle municipalities should
only undertake business tasks or support private companies when authorised to
do so by law.19
17
Revsbech, Karsten: Kommunernes opgaver, 2nd ed., 2010, p. 51 f.
18
Revsbech, Karsten: Kommunernes opgaver, 2nd ed., 2010, p. 53 ff.
19
Revsbech, Karsten: Kommunernes opgaver, 2nd ed., 2010, pp. 58 ff. and 95 f.
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local government in denmark
20
Local Government Denmark: http://www.kl.dk/English
21
Blom Hansen, Jens: Den fjerde statsmagt? Kommunernes Landsforening i dansk politik,
Chapter 8.
22
See the Act on election to municipal councils and region councils, especially Sections 1,
3, 4 and 92.
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members, with at least 9 and no more than 31. The precise number of council
members is decided by each council.23
The council carries out its activities in meetings, and as a rule these meet-
ings are held in public. A council will reach the legal quorum when at least half
its members are at a meeting. All the council’s decisions are made by a simple
majority.24
As mention in section 3, a municipal council has a dual function; it is primarily
the leading body of the society of citizens within the municipality and secondarily
it is a regular public authority. The powers of a council depend upon whether it is
acting in its primary or secondary function. When acting in its primary function a
council has powers under the local authority mandate and the Local Government
Act. When acting in its secondary function its powers depends on what is author-
ised by the specific law.25 The most important powers of a council are those under
the local authority mandate and its power to decide the local tax rate. Citizens have
to pay income tax to the municipality (local tax) as well as to the State. The State
income tax is the same throughout the country, but each municipal council sets the
rate of the local tax.26 This means that the aggregate tax burdens of citizens differ
from one municipality to another. For example, the highest local tax rate in Den-
mark is 27.8% (in Langeland) and the lowest is 22.8% (in Gentofte).27
The council’s power to set the local tax rate has lost some of its significance
since the Liberal-Conservative Government came into office in 2001. This re-
sults from the Government’s election promise to freeze the tax level. As men-
tioned above, the municipalities are independent of the Government, so it
would require an amendment to the municipal tax law to enforce this promise.
The Government chose not to freeze local taxes by amending the law; instead
it stated that if a municipality raised its local tax, it would lose an equivalent
amount of its block grant, which the Government does have power over.28 Usu-
ally a council establishes a finance committee plus one or more permanent
committees at its constituting meeting. The council decides on the number of
committees, but it can choose not to have any committees and either deal with
every case in the full council or delegate cases to the mayor. In practise very
few municipalities depart from the normal committee structure.
Committee members are chosen from among the council’s members. There
must be an odd number of committee members, and they may not exceed half
23
The Local Government Act, especially Section 5.
24
The rules of normal procedure Sections 1 and 4; and the Local Government Act, Section
10 (Law No 1440 of 1 November 2010).
25
See section 4: Competences, powers and services of local authorities.
26
The Municipal Income Tax Act, Section 6.
27
Statistics from the Ministry of Taxation: http://www.skm.dk/tal_statistik/kommuneskat-
ter/8328.html
28
See section 7: Financial resources of local government.
144
local government in denmark
29
The Local Government Act, Section 17.
30
The Local Government Act, Section 20.
31
The Local Government Act, Section 66.
32
The Local Government Act, Section 31.
33
The Local Government Act, Section 31(3).
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the finance committee’s insight into all the financial and administrative matters,
constitutes a principle of unification in the municipality’s administration.
The municipal administration is organised as a traditional hierarchy with the
mayor as the top manager. The administration is often led by a chief executive
appointed by the council, but it is optional for a council whether or not to ap-
point a chief executive. A chief executive is responsible for all administrative
matters, for example working conditions, employment of the administrative
personnel, work procedures etc. A municipal administration is comprehensive
and consists of many small units, for example each day-care centre, nursery,
social security office, council school etc. is part of the administration. Munici-
pal employees constitute 22% of all employees in Denmark and 60% of all
public employees.34 This illustrates that the municipalities play a major part in
public administration in Denmark.
Municipalities can cooperate with each other in ways that limit a council’s
authority, if the supervisory authority approves.35 This rule covers cases where
authority is transferred and a council’s authority is thereby limited (inter-mu-
nicipal cooperation). The rule does not cover the delegation of authority, be-
cause delegation of authority can always be revoked. Cooperation between mu-
nicipalities based on delegation can be established without statutory authority.
Inter-municipal cooperation (Kommunale fællesskaber) can take many struc-
tural forms, but it will often be organised in a private law form of organisation
(not as a limited company). The deciding factor is not the form of organisation,
but whether the inter-municipal cooperation is based on a transfer of authority
or delegation. Once the inter-municipal cooperation is approved, an administra-
tive body is established. Often agreements on inter-municipal cooperation will
contain provisions on the extent to which the Local Government Act applies to
the administrative body. When an issue is not dealt with in the agreement, the
Local Government Act is used to fill in the agreement.
An administrative body for carrying out inter-municipal cooperation is a
distinct legal person and part of the public administration, which means that
among other things the Public Administration Act and The Law concerning
Access to Public Records apply.
Municipalities have the power to select and manage its own human resourc-
es. Of course, this is limited by general employment law and by the municipal-
ity’s finances. The chief executive is responsible for employing all the admin-
34
Memorandum from Local Government Denmark: http://www.kl.dk/ImageVault/Images/
id_43722/ImageVaultHandler.aspx
35
The Local Government Act, Section 60.
146
local government in denmark
istrative personnel and for ensuring health and safety at work. In close
cooperation with the council, the chief executive decides the terms of employ-
ment, unless otherwise determined by law or by a collective agreement. The
municipalities employ a vast variety of categories of employee, from teachers
to road workers. As a consequence there is a variety of terms of employment,
as each category of employee has its own collective agreement. It is not appro-
priate to describe every category of employee and its collective agreement, so
the following looks at the main categories of employment.
From an overall perspective, there are two main types of employees in the pub-
lic sector: on the one hand, those who are appointed on the basis of a collective
agreement (Overenskomstansatte), and on the other hand, administrative civil
servants (Tjenestemænd). Those appointed on the basis of a collective agreement
enjoy no special legal status and their terms and conditions of employment are
determined by normal employment law and their applicable collective agreement.
In contrast, administrative civil servants enjoy a special legal status. They enjoy
special protection and can only be fired in special circumstances. Furthermore ad-
ministrative civil servants cannot strike or be subject to a lockout. Since the 1990s
the administrative civil servant form of employment has only been used in the po-
lice and in the defence forces. There are still some employees in the municipalities
who are employed as administrative civil servants, but they are a dying breed.
5% Income tax
7%
8% User payments and fees
10%
Land and property tax
70%
Reimbursement and grants
Others
Source: T
he Danish Local Government System - Produced by Local Government Denmark (LGDK),
February 2009.
36
The Ministry of Finance: http://www.fm.dk/Arbejdsomraader/Kommuner%20og%20re-
gioner/Aftalesystemet/Kommunernes%20finansiering.aspx
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37
The Ministry of Finance: http://www.fm.dk/Arbejdsomraader/Kommuner%20og%20re-
gioner/Aftalesystemet.aspx
38
Act on the reduction of the block grant to municipalities in the event of raised tax levels
(Law No 477 of 17 June 2008).
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local government in denmark
adopted a block grant settlement reform.39 The settlement system makes up for
the municipalities’ structural surpluses or deficits by looking at the difference
between the calculated necessary expenditure and the expected tax revenue cal-
culated on the basis of an average tax rate. If a municipality has a structural
deficit it will receive a special block grant of 58% of the deficit. Conversely, a
municipality that has a structural surplus must pay 58% of the surplus to the
settlement fund. Most of the settlement fund is financed by the State as the
structural deficits greatly exceed the structural surpluses.40
The municipalities are distinct legal persons and as such they are entitled to
own property and can enter into contracts like any other legal person. Com-
bined with the fact that a municipality has its own funds and that councils can
make financial dispositions, this has resulted in municipalities accumulating a
lot of real estate and movable property. It is common for municipalities to own
the town hall, nursing homes, nurseries, sports facilities, parks, roads, buses,
snow clearing equipment, utilities facilities, wastewater treatment plants etc.
As a rule, a council can deal with its property as it sees fit. However, this rule
is not without limits, as illustrated by the following examples. The local author-
ity mandate states that the municipalities must be financially responsible, which
means that they cannot sell or lease property below the market rate unless the
municipal interest is served by doing so. Municipalities are also restrained by
the non-statutory principles of public administration and by public administra-
tion laws, so that for instance a council cannot favour companies in which
members of the council hold shares.
In certain cases the legislators have found it necessary to regulate the mu-
nicipalities’ use of property. This concerns the sale of property, sale and lease-
back arrangements, municipal roads and property used for advertising. Thus, a
municipality can only sell real estate following a tendering procedure, which
ensures that there can be no favouring of improper interests and that the mu-
nicipality benefits from the sale.41 A municipality can only enter into a sale and
leaseback arrangement if it deposits an amount equal to value of the property
sold. After 10 years, a fifth of the amount deposited can be released each year.42
The rules on the municipalities’ involvement in sale and leaseback arrange-
ments are a result of a massive scandal in the municipality of Farum. The mu-
nicipality of Farum had entered into sale and leaseback arrangements involv-
39
The Ministry of Finance: http://www.fm.dk/Arbejdsomraader/Kommuner%20og%20re-
gioner/Aftalesystemet.aspx
40
The Ministry of Interior and Health: Kommunal udligning og generelle tilskud 2008.
41
Section 2 of Executive Order No 472 of 20 June 1991, on tendering.
42
Section 6 of Executive Order No 1311 of 15 December 2009, on municipal borrowing and
guarantees.
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ing, among other things, wastewater treatment plants, thereby gaining a massive
amount of cash which was then used on other projects. As a result Farum ended
up with an enormous debt. The effects of these rules are that sale and leaseback
arrangements have become an expensive and unattractive alternative to tradi-
tional procurement projects. In sale and leaseback arrangements the municipal-
ity must pay all the expenses at once, whereas in a traditional procurement
project payment follows the construction process, so that expenses can be
spread over several years.43
The municipalities own and are responsible for maintaining the municipal
roads which constitute 95% of all roads, with the remaining 5% of the road
network being State roads. These proportions give the impression that the mu-
nicipalities bear the major part of the maintenance burden, but this is mislead-
ing as the State roads connect the country and carry 45% of all road traffic.
The local council decides which municipal roads to construct and which to
close down.44 The council decides whether a closed road is to be kept as a pri-
vate access road for a single property, a common private road for multiple prop-
erties, or whether it should no longer be used for traffic.45 The most important
effect of changing the status of a municipal road to a private road is that its
maintenance then becomes the responsibility of the private owners and no long-
er that of the municipality.
The council can use its real estate and movable property for advertising, or
it can sell the space to others, for example the facade of a town hall or the sides
of bus can be used as billboards.46 When selling space for advertising, a council
must respect the rules of marketing law and other laws. Furthermore the Act on
the use by municipal and regional authorities of real and movable property for
advertising for others only applies to real estate and movables, so that elec-
tronic media such as a municipality’s website is not covered by the law and thus
space on a municipal website cannot be sold for advertising.
43
Petersen, Ole Helby, «Regulation of public-private partnerships: the Danish case», in Pub-
lic Money & Management, May 2010.
44
The Public Highways Act, Section 23(1) (Law No 711 of 11 September 1997).
45
The Public Highways Act, Section 90(1) (Law No 711 of 11 September 1997).
46
Act on the use by municipal and regional authorities of real and movable property for ad-
vertising for others (Law No 490 of 7 June 2006).
150
local government in denmark
47
The Ombudsman Act, Section 7 (Law No 473 of 12 June 1996).
48
The Local Government Act, Section 48a.
49
The Local Government Act, Section 48.
50
The Local Government Act, Section 50.
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council. The Regional State Administration can annul a decision on its own
initiative and does not need approval from the Minister or the courts. Given the
principle of local self-government, such annulment requires that the decision is
clearly illegal; this means that there cannot be reasonable doubt about whether
the decision is illegal (the clarity criterion).
When considering the annulment of a decision, the Regional State Adminis-
tration can temporarily suspend the decision. If a decision has already been
implemented, it can only be suspended or annulled if a party makes a written
application to the Regional State Administration and there is no another statu-
tory appeal tribunal and if there are no substantial reasons for not doing so.51
For example, if a private party has received a favourable decision, it cannot be
annulled or suspended unless that party has acted in bad faith. According to the
pre-legislative history of the rule, a council is not a party to the annulment or
suspension case. This means that the municipality does not have capacity to
bring a case on annulment or suspension before a court.
In certain cases a municipality can be obliged by the law to act, and the ques-
tion is how the Regional State Administration sanctions a failure to act. It is
meaningless to annul a failure to act, because this will not result in the correct
legal decision being taken. In these cases the Regional State Administration is
authorised to compel the council to make a decision. This is enforced by impos-
ing fines on each member of the council responsible for the illegal failure to act.52
The clarity criterion mentioned above also applies in these cases. A member of
the council cannot avoid being fined by not voting. Council members will con-
tinue to be fined until they fulfil their duty to vote for a legal decision. Each re-
sponsible member is a party to the Regional State Administration’s proceedings.
The Regional State Administrations can bring proceedings against a mem-
ber of a council who is liable for damages resulting from illegal acts or omis-
sions.53 The clarity criterion does not apply, because the proceedings will make
it clear whether a council member is liable. Liability is decided according to the
normal civil law rules, i.e. there has to be negligent conduct resulting in finan-
cial loss. Before the Regional State Administration decides to bring proceed-
ings against a council member, it must assess whether that member is liable
under the normal rules of civil liability. Finally, the Regional State Administra-
tion can bring declaratory proceedings in the event of an illegal act or omission
by a council. This power is derived from a Regional State Administration’s
automatic legal interest, which means that it has a right to bring proceedings.
The courts do not examine whether sanctions should have been applied. The
clarity criterion does not apply, since the will emerge from the proceedings.54
51
The Local Government Act, Section 50a.
52
The Local Government Act, Section 50b.
53
The Local Government Act, Section 50c.
54
The Local Government Act, Section 51.
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local government in denmark
There have been very few court cases regarding the municipalities’ exercise
of their powers. This is a result of the extensive supervision and the wide avail-
ability of recourse to supervisory authorities in special areas. It is also a result
of an administrative tradition whereby authorities generally comply with state-
ments from supervision authorities and the Parliamentary Ombudsman.
The decisions of the Regional State Administrations and municipal councils
can be subject to judicial review, provided a party has a right to bring proceed-
ings. In Denmark a right of action requires a party to have a legal interest in the
proceedings, for example citizens, companies or other authorities.55 For in-
stance, a private party that has received a favourable decision from a municipal-
ity can refer a decision by the Regional State Administration to annul the deci-
sion to a court. The courts can decide on any matter relating to exercise of the
powers of public authorities, including municipalities.56 The courts can exam-
ine both written and unwritten law, and the exercise of discretion. This is simi-
lar to the basis for decisions by the Regional State Administrations. In legal
theory there is a core of discretion which is not subject to the jurisdiction of the
courts unless otherwise provided by law. This core of discretion falls within the
scope of the weighing of reasonable considerations.
The differences between the courts and regional supervision lie in the pro-
cedure and the use of sanctions. The courts use the adversarial procedure of
civil litigation, whereas the Regional State Administrations use an inquisitorial
procedure. An illegal act or omission must be clear before the Regional State
Administration applies sanctions, whereas the courts can apply sanctions where
an illegal act or omission is considered proved.
55
But not first tier authorities in cases decided by a second tier authority, e.g. the munici-
palities are not parties in cases adjudicated by the Regional State Administration.
56
The Constitution, Article 63(1).
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Denmark has nine full members of the European Union’s Committee of the
Regions; six of these are politicians from the municipalities and three are politi-
cians from the regions. In addition there are nine alternate members, again six
57
Jensen, Michael Hansen: Beskyttelse af juridiske personer efter grundlovens § 73, p. 339 ff.
154
local government in denmark
from municipalities and three from the regions. Local Government Denmark
has six permanent committees ranked below its executive committee; one of
these is the International Committee. This committee has nine members who
are each full or alternate members of the Committee of the Regions. The Inter-
national Committee represents the municipalities’ interests in the EU in the
Committee of the Regions, and it also participates in other international forums
such as the Congress of Local and Regional Authorities of Europe and the
Council of European Municipalities and Regions.
The decisions of the Ministry of Interior and Health, the Regional State Ad-
ministrations and the Parliamentary Ombudsman, and the municipal laws are
the most important sources of law on the municipalities. Supreme Court cases
have been scattered and few in number.
U 2008.1607 H (Supreme Court): in which a former mayor was convicted of
breach of trust of a particularly aggravated nature.
U 2007.1074 H (Supreme Court): where a municipality had a right of action
against the Nature and Environment Board of Appeals regarding a decision
on an exemption from the local plan.
U 1990.601 H (Supreme Court): the Ministry of Interior’s annulment of the
City Council’s decision on layoffs was void.
U 1993.727 Ø (High Court): the municipality was bound by the principle of
equality and it could not, without justification, deny free school milk to pri-
vate schools while providing free school milk to council schools.
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156
Chapter 7:
LOCAL GOVERNMENT IN ESTONIA
Sulev MÄELTSEMEES
Estonia was proclaimed a Republic on February 24, 1918. Until that time,
the country had been a part of the Russian Tsarist Empire for over 200 years.
Rural municipalities (vald) became institutions of local self-governance in
1816, in the province of Estonia (kubermang) and in 1819, in the province of
Livonian. These municipalities were originally established as manorial estates,
but became more independent in 1866 with the enactment of the Rural Com-
munity Government Act. Local councils, executive boards, and mayors were
elected, marking the start of what we consider local self-government based on
modern principles. Several cities (linn) maintained a tradition of self-govern-
ance dating from the Middle Ages (Town Law of Lübeck). In 1877, the Rights
of Lübeck were invalidated in the territory which is now Estonia, and in 1870,
the Russian Cities Act was enacted.
Following the Decree of the Russian Provisional Government of 5 July 1917
«On administration and temporary organisation of Self-government in the
province of Estonia», Estonia became an autonomous administrative unit, the
borders of which coincided with the area inhabited by Estonians (including
North-Livonia). This legal rule recognised the right to issue local general legis-
lation (i.e. regulations), and provided Estonia and its people with an autono-
mous entity where the formal authority of the Russian state was almost nonex-
istent. One might say that Estonia achieved independence at the self-government
level earlier than at the state level.
The drafting and adoption of Estonia’s own legislation regulating local self-
government to replace the formerly valid legislation of the Russian Empire had
been pending since Estonia declared its independence. Chapter VII of the 1920
Constitution regulated local self-government. In later years, only minor amend-
ments were introduced to Estonian legislation, including the adoption of new
local election acts. The most drastic change took place in 1933 when a consti-
157
sulev mäeltsemees
tutional amendment was adopted that abolished the second level local self-gov-
ernment. In 1937, the Rural Municipality Act was adopted, followed by the
City Act in 1938. A new Constitution was adopted in 1938 that established lo-
cal self-government at the second (county – maakond) level, although, it actu-
ally consisted of authorized representatives from the first level.
In 1940, local self-government was basically abolished under Soviet occupa-
tion. After half a century of centralised management under the Soviet regime,
local self-government revived in 1989. On 8 August 1989, the Estonian Supreme
Soviet adopted regulation to initiate administrative reform, which was followed
by the Local Self-Government Foundation Act on 10 November of the same
year.1 Exactly one month later, on 10 December 1989, the first free local self-
government council elections in almost 50 years took place. Autonomous deci-
sion-making and self-government at the local level had been impossible during
the preceding 50 years, so this was the first issue to be addressed. Specific strate-
gic approaches for administrative reform were devised. Re-introduction of local
self-government was rapid and successful, despite the gap of two generations.
A significant event in terms of the development of local self-government
was the reestablishment of the Association of Estonian Cities (originally estab-
lished in 1920) and the Association of Rural Municipalities (originally estab-
lished in 1921), in 1990. The former had already been a member of the Interna-
tional Union of Local Authorities (IULA) during 1925-1940 and renewed its
membership in 1995. The Constitutional Assembly (1991-1992) set up a work-
ing group to draft the chapter regulating local self-government. The provisions
of the Estonian Constitution conformed to the principles of the European Char-
ter of Local Self-Government (ECLSG), which was ratified by the Parliament
(Riigikogu) only two years later, on 28 September 1994.
Today, it is clear that the administrative-territorial organisation of Estonia
needs reforms. The average population of Estonian rural municipalities is less
than 2,500 people and, despite mergers, there are still instances where a centrally
located settlement is detached, administratively speaking, from its outlying areas.
The underlying problem involves inadequate cooperation between local self-gov-
ernment units in the field of public services, especially in the metropolitan area.
1
At the same time, the Berlin Wall was demolished, illustrating the synchronism with the
democratisation process that began in Europe. The above Act was the first to emerge from the
immensely popular IME concept (IME – Isemajandav Eesti – an acronym for self-sufficient Es-
tonia; also it is a play on words: «ime» standing for «miracle» or «wonder» in Estonian).
158
local government in estonia
Table 1
Number of rural municipalities and cities by population size categories (1/1/2011)
The size of local authorities varies greatly. The average population of 4/5 of
local entities is less than 2,500 while only a quarter of the total population of the
country resides there. The small size of Estonian local authorities and how this
effects their administrative capacity, is one of the hottest problems of local
159
sulev mäeltsemees
2
There is another problem concerning medium-sized cities (population 20,000-100,000).
On the one hand, the physical and social environment in those cities is more favourable than in
big cities in terms of natural environment; on the other hand, their physical and social environ-
ment is more favourable than in rural municipalities in terms of public services. At the same time,
only 18% of Estonia’s population lives in medium-sized cities in comparison to Finland with34%
and Sweden with 50%. Figuratively speaking, in an economic sense, there is often no middle
class in transformation societies, and this is also reflected in places of residence.
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3
In February 2003, the Riigikogu adopted the first amendment to the Constitution since its
adoption (1992), and, as of 2005, prolonged the term of office in local self-government councils
from three years to four years.
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4
Each local council elects at least one representative of the electoral body. The number of
members of the electoral body representing big towns or big rural municipalities is even higher
(e.g Tallinn has 10 representatives, Tartu has 4 representatives; Viimsi rural municipality 2 rep-
resentatives etc). Therefore, the number of local politicians in the electoral body is 2.5 times
greater than the Riigikogu. Due to mergers, the number of representatives of local self-govern-
ment units in the electoral body has decreased. It is not insignificant that in 1996, 2001 and 2006,
the President of the Republic was elected by the electoral body indicating that Estonian local
politicians have a significant role in deciding such an important public issue.
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5
This rarely occurs, e. g. in the late 1990s, it happened twice in Tallinn and at least 3,000
signatures were required to endorse the effort. One initiative concerned the possible construction
of a road in a district of Tallinn and the other, the privatisation of the town’s central market. In
the first case, the City Council accepted the reasons given in the initiative, but they were ignored.
6
For example, in Tallinn alone, five opinion polls had been conducted by 2011: 1) the poll
concerning construction Harju Street (in the Old Town), destroyed in World War II (in June
2002); 2) restrictions on the sale of alcoholic beverages at night (in April 2004); 3) the location
of the liberty monument (in January 2005); 4) construction of municipal (social) housing for
young families (in October 2005); and (5) administrative reform in Tallinn and neighbouring
Harju county (in February 2009). This last poll dealt with two questions: (a) should Tallinn city
districts be reorganized?; and (b) should Tallinn start negotiations with neighbouring cities and
rural municipalities to incorporate them in Tallinn’s biggest service and other functions holding
centre?
7
Accessible on: www.legaltext.ee
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8
For example, the principal heat production enterprise supplying Tallinn with heating (AS
Tallinna Soojus) was let for 49 years, 51% of the share capital of the only company providing
water supply and wastewater services in town (AS Tallinna Vesi) was sold to a British company
and all the companies providing maintenance and repair services in housing have been privatised.
9
In Tallinn, the hospitals were reorganised into two big public limited companies but in
counties (there are 15 counties in Estonia), municipalities generally opted for establishing a foun-
dation to manage the hospital in their county.
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The running council determines the number of members in the next council.
The number depends on the population of a local self-government unit (with a
minimum of 7 members) and the total number must be uneven: 1) for more than
2,000 residents, at least 13 members; 2) for more than 5,000 residents, no few-
er than 17 members; 3) for more than 10,000 residents, at least 21 members;
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4) for more than 50,000 residents, no fewer than 31 members and 5) for more
than 300,000 residents, no less than 79 members10). The law does not establish
the maximum number of members. The city councils of Tallinn (79 members)
and Tartu (49 members) have the highest number of members.
The council shall form one electoral district in the territory of a rural mu-
nicipality or city. Several electoral districts may be formed: a) in local au-
thorities with more than 50,000 residents; b) in local entities resulting from a
merger or division during the past two election cycles; c) in local authorities
where districts have been established. In Tallinn, the council forms electoral
districts by city districts based on the principle that one electoral district shall
be set up in every city district. Political parties registered as non-profit asso-
ciations and foundations no later than on the last day for nomination of candi-
dates may participate in the local elections. Estonian citizens and EU citizens,
who have the right to vote, may form an election coalition for local self-gov-
ernment council elections.11
Since 2005, the councillors can no longer be members of the Riigikogu (Par-
liament) at the same time.
Meanwhile, voter turnout in the local elections had decreased to below 50%
but rose again significantly in the 2009 elections (Table 3), possibly because of
a higher young voter turnout, attracted by new methods of voting («e-voting»).
Table 3
Voter turnout in local government council elections
E-voting deserves a specific attention. The Riigikogu adopted the Local Gov-
ernment Councils Election Act in 2002, which established the citizens’ right to
vote electronically on the web page of the National Electoral Committee on the
days of advanced polling (in 2005 three days, in 2009 seven days). This was first
introduced in the local elections of 2005, when more than nine thousand voters
cast their ballot via Internet (this represented 1.9% of all participating voters). It
was the first time electronic voting was used country-wide, instead of testing it
10
Until the local government council elections in 2009, no fewer than 63 members.
11
In 2005, all the citizens EU Member States could, for the first time, participate in munici-
pal elections on an equal footing with Estonian citizens. Only 11 citizens of other EU member
states exercised their right to run as a candidate (the total of 14,689 people ran for municipal
councils). Two people out of the 11 candidates were elected to municipal councils (the total
number of people elected to municipal councils was 3,109).
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in just one municipality, for example.12 In the 2009 local elections, 104,413 vot-
ers (15.8 per cent of all participating voters) used e-voting.
The Chairman (volikogu esimees) is the head of the council. The local gov-
ernment council may establish both standing and ad hoc committees (alaline/
ajutine komisjon) as determined in the statute of a rural municipality or city.
The Law prescribes only the formation of an audit committee (revisjonikomis-
jon). The chairmen of all committees and all members of the audit committee
must be elected from among the council members. The majority of the council
elects the Chairman by secret ballot. In the event of a premature termination or
a suspension of the authority of a rural municipality or a city council member,
the new council member (alternate member) shall be the first unelected candi-
date, of the same political party, who ran as a candidate in the same electoral
district as the council member to be replaced.
12
Today, e-voting with binding results has been used five times in Estonia: in local elections
of October 2005, parliamentary elections of March 2007, European Parliament elections of June
2009, local elections of October 2009 and parliamentary elections of March 2011.
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stance, the executive body has 7 members, including the mayor and six deputy
mayors. At least one fourth of the members of the local council may initiate a
no-confidence motion against the chairman of the council, deputy chairman of
the council, chairman of a council committee, deputy chairman of a council
committee, a member of the audit committee, the executive body («govern-
ment») or the mayor of a rural municipality or a city. The no-confidence vote is
public and in order to adopt the decision, a majority of council members votes
is required. If an expression of no confidence finds no support in a council ses-
sion, a new motion may be posed against the same person three months later.
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In Estonia, there are 141,200 employees in the public sector, nearly half of
whom (49%) work in the local government sector. Employment relations in lo-
cal authorities are regulated by the Public Service Act and by the Employment
Contracts Act. There are three categories of public servants: 1) officials; 2) sup-
port staff; 3) non-staff public servants. Local employees may work in a rural
municipality, in a city, or in a local administrative agency (ametiasutus). Genu-
ine civil servants are those working in any of this places: (1) the office of a rural
municipality or city; (2) rural municipality or city governments (as agencies)
together with their structural units; (3) the governments of a district of a of rural
municipality and of a district of a city (as agencies); (4) city government execu-
tive agencies; (5) bureaus of local self-government unit associations.
An administrative agency is a body which is financed from a rural munici-
pality or city budget and exercises public authority. For instance: the pre-school
child care institutions, basic schools, secondary schools, hobby schools, librar-
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ies, museums, sports facilities, care homes etc.). The employees in the munici-
pal agencies are governed by the Employment Contract Act.
There are 28,632 public employees in Estonia (data from 31.12.2009) in-
cluding 23,307 central government officials and 5,325 local self-government
officials (1,451 men and 3,874 women). The largest local bureaucracies in Es-
tonia are in Tallinn (1,424 officials as of 31 December 2009), Tartu (289 offi-
cials) and Narva (195 officials). At the other extreme of the scale, many small
rural municipalities or cities employ only 3-5 municipal officials, the smallest
in Piirissaare rural municipality (3 officials).
Significant changes have been introduced in the salary system of local offi-
cials. According to the Public Service Act which became effective on 1 Janu-
ary 1996, approval of the salary levels of members of local executive boards
falls within the exclusive competency of the rural municipality and city coun-
cil. This has resulted in vast differences in officials’ average salaries among
local self-governments. The leading question is whether the area should be
left to the mercy of competition, and if so, to what extent?. The fact is that the
poorest municipalities are facing increasing problems for attracting compe-
tent officials.
The state has imposed special requirements regarding professional qualifi-
cations for one key civil servant – the rural municipality or city secretary. This
key official participates in the meetings of the rural municipality or city execu-
tive board with the right to express opinions, and countersigns the local govern-
ment regulations and ordinances. The rural municipality or city secretary is
appointed and removed from office by the mayor. The person to be appointed
to this position must be an Estonian citizen who is at least 21 years old and is
qualified as a lawyer or has a certificate testifying that he/she meets the require-
ments of the professional qualifications established by the Government. The
compliance of rural municipality and city secretaries with professional qualifi-
cation requirements is supervised, and certificates of compliance are issued by
the Rural Municipality and City Secretaries Professional Qualifications Com-
mittee established by the Government of the Republic (Ministry of the Interior).
Rural municipalities and cities may use the following means to finance their
expenditures:
(1) Taxes imposed by the state;
(2) Allocations and appropriations from the state budget;
(3) Local taxes;
(4) Economic activity, including proceeds from municipal property; and
(5) Loans.
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The taxes imposed by the state fall into two categories: (a) taxes whose rate
cannot be altered by local authorities (personal income tax and natural resourc-
es user fees); and (b) taxes whose rates may be modified by local authorities
(land tax).
The main sources of rural municipalities and city revenues are the taxes
imposed by the state and subsidies from the State Budget. Other significant
sources of revenue are loans and revenue received from the sale or letting of
municipal property. The biggest portion (approx. ½) of the income for local
budgets comes from the state personal income tax (Table 4).
Table 4
The structure of local self-government income in 2005 and 2009
2005 2009
Type of revenue
million Euros % million Euros %
Personal income tax 406,793 43.43 634,097 49.09
Land tax 32,325 3.45 48,249 3.74
Environmental fees 8,685 0.93 15,627 1.21
Local taxes 7,533 0.80 9,452 0.73
Proceeds from economic activity 98,459 10.51 139,923 10.83
(including the sale of goods and
services)
Income from property 45,238 4.83 11,484 0.89
Budget equalisation fund 60,716 6.48 70,399 5.45
Block grants 186,498 19.91 220,886 17.10
Earmarked grants from ministries to 34,053 3.64 28,336 2.19
rural municipalities and cities for
special purpose
Other income 56,376 6.02 113,359 8.77
TOTAL 936,676 100.00 1,291,812 100.00
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tax of one or two local businessmen. The situation becomes extremely difficult
if the businessman decides to move (it has been known to happen) or has, in a
particular year, sold a number of shares and paid high income tax which is one
of the significant indicators for receiving subsidies for general purposes from
the State Budget (budget equalisation fund).
In 2003, the Riigikogu amended the Income Tax Act and, during the follow-
ing years, the rate of personal income tax will decrease by 1-2% annually. Due
to the decreasing rate of income tax, it is no longer possible to continue the
practice that allowed 56% of the total personal income tax received to be added
to the local budgets, and 44% to the national budget. The local government rev-
enue base was also affected since the Riigikogu has been known to increase the
amount of the basic exemption deductible from income. It was decided that in
order to avoid the negative effect on the local self-government revenue base, the
percentage of personal income tax added to rural municipality or city budgets
would be 11.4% (2004), 11.6% (2005) etc., regardless of the income tax rate and
the amount of basic deductible exemption or other tax exemptions (Table 5).
Table 5
The distribution of personal income tax between national budget and local self-
government budgets
Challenged by the global economic crisis, Estonia began to cut back its na-
tional budget deficit and the growth of its national debt, which is critical to
ensuring the country’s financial stability, and compliance with the «Maastricht
criteria» which must be observed by countries wishing to join the Euro zone.
Since the total local government deficit amounted to no less than 22% of the
state deficit, the Government of the Republic took preventive measures against
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local self-government debt and national deficit growth. Hence, the 2009 budget
Act was twice amended, considerably reducing government expenditure, and
consequently local authorities income base. Their share of personal income tax,
for example, was cut from 11.93% to 11.40%, and several specific grants, such
as subsidies for education, culture and road maintenance, were also reduced.13
Land tax is also a national tax, but all its revenues are paid to local treasur-
ies. The rural municipality or city council determines the tax rate within limits
given by law. Land tax is 0.1–2.5% of the estimated value of land.14 In the case
of agricultural land, the rate is 0.1–2.0%. Land tax is not imposed on land where
economic activities are prohibited by law or pursuant to the procedure provided
by law; land in public use etc.
Local charges are another important source of income. For instance, the
purpose of applying environmental charges is to prevent or reduce possible
damage related to the use of natural resources, emissions of pollutants into the
environment and waste disposal. The proceeds from environmental charges are
divided between the state budget and the budgets of the rural municipality or
city of the location of the environmental exploitation. The rates for the natural
resources extraction charge are established per ton or cubic meter by a regula-
tion of the Government of the Republic. The Environmental Charge Act stipu-
lates that equal parts (50 per cent) of the natural resources user fees (user fees
for oil shale, sand, gravel etc) will be paid to municipalities as revenue.
The above three state-imposed taxes (personal income tax, land tax and nat-
ural resources user fees) are significant, because the total amount of the taxes
determines the amount of subsidies for general purposes allocated to rural mu-
nicipalities and cities, from the State Budget. The total amount of the above
three taxes collected by a local authority is divided by the population of the
rural municipality or city. The amount of subsidy for general purposes due to
the rural municipality or city from the State Budget is calculated on the basis of
a formula which takes into account the demographic structure of the municipal-
ity (the number of children at pre-schools, the number of students, the length of
local roads and city streets, etc.).15 The amount of the equalisation fund is in-
cluded in draft form in the state budget and its distribution is determined by
13
In 2009, the percentage of personal income tax was one month 11.9%, 3 months 11.93%
and 8 months 11,4%.
14
The National Land Board periodically fixes the taxable value of land depending on the
location and the purpose of its use (agricultural land, commercial land, land designed for trans-
port, public land etc.).
15
In 2002, the formula used for calculating the amount of resources to be allocated from the
state budget for the purpose of horizontal equalisation of municipal budgets was changed. The
previous, m-formula took into account only the total of three income articles – personal income
tax, land tax and natural resources royalties. The new formula also considers certain significant
socio-economic factors that have an influence on municipal expenditure such as the age structure
of the local population and the road network, and the difference between such expenditure in
different rural municipalities and cities.
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March 2010) describes the right and obligation to decide and organise autono-
mously all local issues based on law, pursuant to subsection 154 (1) of the
Constitution. Subsection 157 (1) of the Constitution specifies the right to mu-
nicipal self-administration and stipulates that a local authority has its own
budget that is drafted according to procedures provided by law. The budget of
a local authority is part of the public sector budget, but it is not part of the State
Budget.
Rural municipalities and cities have overall autonomy to manage their own
property and earn income.16 The local council establishes the procedure for the
administration of its property. A rural municipality or city may transfer a real
estate asset that has been transferred to it the State if such asset ceases to be
necessary or has become unsuitable for the performance of the functions of
local government. A rural municipality or city has the right of pre-emption
upon the transfer of structures located within its administrative territory by
private persons and individuals if the structures were used, in whole or in part,
by an educational, health care, cultural or child care institution for not less
than one year prior to the transfer. Otherwise, the provisions of the Law on
Property apply.
The biggest problems regarding municipal property are related to land prop-
erty. According to an overview conducted in December 2010 by the National
Audit Office regarding land owned by rural municipalities and cities, no one
knows exactly how much land rural municipalities and cities have and what
kind of land they need. The State’s databases give a complete overview of land
owned by private persons and individuals, but it is impossible to say how much
land in Estonia is owned by rural municipalities or cities based on this informa-
tion, because rural municipalities and cities do not have to register their land in
the Land Register.
Local authorities received most of their land free from the State through
land reform: almost 15,000 plots of land with a total area of nearly 30,000 hec-
tares (>1% of all land registered in Estonia) had been given to local self-gov-
ernment units by 2010. Rural municipalities and cities obtained the remaining
plots of land through purchase from private owners or the State, and by means
of inheritance or donation. Some local authorities received hundreds of hec-
tares of land (manor land that belonged to local self-government before 1940 or
military land from the Soviet period) from the State through land reform and
16
A significant amount of municipal revenue of big cities is generated from letting or selling
municipal property. The latter is, naturally, one-time income. For example, Tallinn received ap-
prox. 60 million euros for 51% of the shares of the company providing the town with water sup-
ply and wastewater services (AS Tallinna Vesi) in 2001.
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have used it for developments and a source of income; other local bodies have
had to acquire land.
The local authorities that received the most acreage during land reform were
the cities of Tallinn (3,722 ha), Tartu (1,315 ha) and Rae rural municipality
(1,084 ha). Forty percent of local government units have received less than 50
hectares of land free of charge through land reform. The majority of land (81%)
is given in municipal ownership based on resolutions by county governors,
while the remaining cases were settled by the Government of the Republic,
which has broader discretionary powers concerning municipalisation.
Rural municipalities and city councils have exclusive competency regarding
the submission of applications for the expropriation of real estate property. The
rural municipality or city council must submit an expropriation application of
private property to the Minister of Internal Affairs, who submits it to the Gov-
ernment of the Republic for a final opinion.
9.1. Introduction
Local authorities are required to conduct internal audits. Each rural munici-
pality and city council must establish an audit committee consisting of at least
three members, for the duration of its term of office. All members of the audit
committee shall be elected from among the council members. The audit commit-
tee monitors several aspects of the financial running of the local authority,
among others: 1) the conformity of the activities of the municipal executive
board with the regulations and resolutions of the municipal council; 2) the ac-
curacy of the accounting of municipal agencies and agencies under the adminis-
tration of municipal agencies, and the purposeful use of municipal funds; 3) the
timely collection and registration of revenue and the conformity of expenditure
with the rural municipality or city development plan. In addition to internal con-
trol by council audit committee, many bigger cities (like Tallinn, Tartu, Pärnu)
have professional internal control offices. Since 2003, rural municipalities and
cities are required to add an independent auditor’s report to the annual report and
the budget report.
External state control and supervision is performed by different state bodies
and agencies: the Chancellor of Justice (Õiguskantsler), the National Audit Of-
fice (Riigikontroll) and the County Governors (maavanem). The purpose of this
supervision is to ensure the lawfulness of municipal activities (article 160 of the
Constitution). It must be understood that state control and supervision over lo-
cal government is permitted only if it is stipulated by law. Basically, the system
of state supervision over the legal functioning of local government has re-
mained unchanged in Estonia since the early 1990s.
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local government in estonia
According to the Constitution (article 133) the National Audit Office shall
supervise the use and control of state assets which have been transferred to
local authorities. The National Audit Office conducts economic audits of local
government units in so far as they use non-movable and movable property
transferred by the state, allocations for specific purposes and subsidies granted
from the State Budget, and funds allocated for the performance of state func-
tions. The National Audit Office also audits the use of the funds of the Euro-
pean Union allocated through the state or local authorities and the compliance
with obligations towards the European Union assumed in connection with
such funds. With regard to the end users of the funds of the European Union
and persons who have obligations towards the European Union, the National
Audit Office has the right to ascertain the validity of the circumstances that
justified the receipt of such funds. It may also verify the lawful use of the
funds and the actual performance of the obligations taken by the applicant of
the funding.
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However, the new National Audit Office Act , adopted in 2002, granted the
National Audit Office considerably more rights in this area. The National
Audit Office can now audit several aspects: a) the use of municipal property
in municipalities; b) non-profit organisations and foundations provided there
is a municipality among their founders or members; and c) companies in
which a municipality has a majority holding. On the other hand, the National
Audit Office has the power to inspect several features of the local bodies
working: (1) internal control, financial management, financial accounting
and financial statements; (2) the legality of the economic activities, including
economic transactions; (3) the reliability of the information technology sys-
tems. In 2006, a department was established by the National Audit Office to
audit municipalities. The Local Government’s Audit Department audits rural
municipalities and cities, focusing mainly on the legality of the internal con-
trol systems, financial management, financial accounting and economic
transactions, etc.
The county governor has the power to supervise the legality of legislation
and adjudications of local bodies within his jurisdiction, in the cases and to
the extent provided by law. For instance, he may check the legality of the use
of state assets by local authorities. On the other hand, the county governor or
an official authorised by the governor has the right to control the performance
of state functions assigned to local self-government by law or assumed by
local government by an inter-administrative agreement. However, the county
governor has no authority to stop or declare void any measures taken by a lo-
cal body; he can only suggest that the local body take the necessary measures
to comply with the law. If the rural municipality or city does not change its
mind in order to comply with the law, the county governor has to appeal to
the courts. In cases set by law, the county governor also has the right to file a
petition with the Chancellor of Justice or to submit a report to the National
Audit Office.
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local government in estonia
A rural municipality or city has the right to apply to the court to defend its
legal rights or to resolve arguments. In order to protect the common interests of
its members, an association has the right to file an action with an administrative
court. According to the Constitutional Review Procedure Act, the Supreme
Court shall verify the conformity of legislation, the refusal to issue a piece of
legislation or the conformity of an international agreement with the Constitu-
tion on the basis of a reasoned request, court judgment or ruling. The President
of the Republic, the Chancellor of Justice, a local government council and the
Riigikogu may submit requests to the Supreme Court. According to this Act, a
local authority may submit a petition to the Supreme Court to declare an Act
which has been proclaimed (but not yet in force) or a governmental regulation
(if it has not yet entered into force), to be in conflict with the Constitution The
Supreme Court can also be asked to repeal an Act which has entered into force,
a governmental regulation or a provision thereof if it is in conflict with the con-
stitutional guarantees of the local self-government.
Estonia has 7 seats in the Committee of Regions of the EU. In the Commit-
tee of Regions, the Association of Estonian Cities has 4 full and 3 alternate
members, and the Association of Rural Municipalities of Estonia has 3 full and
4 alternate members in Estonia’s national delegation. All members are either
members of rural municipalities or city councils (including the chairman of the
Tallinn City Council etc.) or mayors of rural municipalities or cities. Members
of the Committee of the Regions have access to the electronic system of EU
documents (ELIS).
On the other hand, the Association of Estonian Cities and the Association of
Rural Municipalities of Estonia opened an office in Brussels on 13 October
2005. The office works proactively to promote joint interests of Estonian local
self-government units in EU legislation, funding and policy, and provides di-
rect communication to EU institutions, organisations and networks.
The implementation of the EU cohesion policy is carried out at the central
level. The Ministry of Finance has overall responsibility for the management of
structural funds. Each priority has its own implementing central Department:
Education and Research; Economic Affairs and Communications and Environ-
ment. From 2007-2013, Estonia was allocated more than 3.4 billion Euros from
Structural funds for actions in fields such as energy economies, entrepreneur-
ship, administrative capability, education, information society, environmental
protection, regional and local development, research and development activi-
ties, healthcare and welfare, transportation and the labour market. Local au-
thorities must work as teams or at least draw up joint projects in order to access
EU structural funds.
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local government in estonia
183
Chapter 8:
LOCAL GOVERNMENT IN FINLAND
Olli MÄENPÄÄ
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olli mäenpää
186
local government in finland
Finland signed the Charter on June 14, 1990, with no reservations or limi-
tations. On the basis of a government bill, the Parliament passed an Act on the
adoption of certain provisions of the European Charter of Local Self-Govern-
ment, in 1991. This general incorporation Act contains only two brief provi-
sions: Section 1 states, «insofar as the provisions of the Charter fall within the
scope of legislation, they are in force as has been agreed»; Section 2 dictates
that the act will enter into effect by a government decree. Consequently, the
act became effective on 10 October 1991, following the decree of 6 Septem-
ber 1991.
The actual text of the Charter was published separately. No specific legisla-
tion was required to vest it with legal force. Since the Charter was incorporated
by an ordinary Act of Parliament, its provisions have the same rank as ordinary
laws, and are directly applicable by courts and administrative authorities. In the
preamble to the bill, the relationship between each of the articles of the Charter
and relevant national legislation was examined, and the conclusion was that
Finnish legislation contained no provisions that would conflict with the Char-
ter, so no laws had to be amended. The only reason why the Charter was al-
lowed to regulate areas pertaining to national legislation was that the Act on the
Autonomy of the Åland Province had already given exclusive power to the
legislature of the autonomous province of Åland to regulate its municipal ad-
ministration.
In actual judicial practice, however, the provisions of the Charter may be too
imprecise and vague to have direct legal effect, or to be the sole basis for a judg-
ment in an individual case. It is more likely that the role of the provisions would
be to serve as legal principles to inform and influence the interpretation and
application of domestic statutes. Moreover, there was little public debate on the
rights and obligations when the Charter was incorporated, which was due main-
ly to the opinion that it would add nothing substantively new to the existing
legal system.
1
Full text of art. 121 of the Finnish constitution: «Municipal and other regional self-govern-
ment. Finland is divided into municipalities, whose administration shall be based on the self-
government of their residents. Provisions on the general principles governing municipal admin-
187
olli mäenpää
istration and the duties of the municipalities are laid down by an Act. The municipalities have the
right to levy municipal tax. Provisions on the general principles governing tax liability and the
grounds for the tax as well as the legal remedies available to persons or entities liable to taxation
are laid down by an Act. Provisions on self-government in administrative areas larger than a
municipality are laid down by an Act. In their native region, the Sami have linguistic and cul-
tural self-government, as provided by an Act».
2
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The Committee’s principal function is to supervise the constitutionality of the bills submit-
ted to it. The Committee hears experts on issues of constitutional law and human rights and, after
consideration, issues binding statements on the constitutionality of the bills. The Committee also
considers the bills’ bearing on international human rights instruments.
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local government in finland
than a municipality are laid down by Act.» Pursuant to this provision, provin-
cial self-government may be considered to have a semi-constitutional status. In
addition, the autonomous status of the Åland Islands is recognized in Section
120, which states that the self-government of the Åland Islands is specifically
regulated in the Act on the Autonomy of the Åland Province.
The Municipal Act (1995) contains more specific rules on the organization
of municipal administration and its activity. The general scope of municipal
responsibilities is determined in Section 2: it is the responsibility of each mu-
nicipality to carry out functions falling within the sphere of its autonomy as
well as other functions entrusted to it by law. Accordingly, it is conventional to
distinguish two spheres of municipal competence: (a) the general municipal
powers, which are based solely on the municipal autonomy, and (b) the special
municipal powers, based on and defined by special laws.
There is no neat borderline between the general and special powers of the
municipality nor are there any stable grounds for determining how the func-
tions should be distributed between central government and the autonomous
municipal authorities. However, it is generally accepted that in order for the
municipal autonomy to have real and substantial meaning, a municipality is, in
principle, competent to handle all matters of common local interest. Since mu-
nicipal competence is defined as «general», there is no exhaustive list of mu-
nicipal responsibilities established by law. Instead, there are several legislative
enactments that regulate municipal competence in specific spheres. Legislation
of this kind is necessary whenever a new responsibility or duty is conferred to
the municipalities, especially in such areas as public services and benefits, en-
vironmental protection, land-use planning, regulation of building and waste
management or supervision of general health.
Other significant legislative enactments include the Municipal Repartition
Act (2009), the Act on the Autonomy of the Åland Province (1991), The Re-
gional Development Act (2009) and the Act on Regional State Offices (2009).
189
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190
local government in finland
ture, for recreational purposes, or for the sake of nature conservation. This right
can be applied only after the contractors have concluded their deal, and the
municipality takes the place of the purchaser, in the same conditions they had
agreed on.
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olli mäenpää
thirds of the day-care units are in municipal day-care centres, while the remain-
ing third is in-home care. Local authorities are also responsible for providing
care for the elderly. Services for the disabled and mentally handicapped, along
with other social services, account for about 30% of expenditure for social serv-
ices. These services are generally free of charge. If a person’s earnings are in-
adequate, subsistence is ensured through income transfers under the social in-
surance scheme. Municipalities are ultimately responsible for residents’
subsistence. A person who cannot earn a reasonable living can receive munici-
pal income support following a case evaluation.
On the other hand, municipalities are responsible for local waste manage-
ment, which includes hiring services to transport, recycle and otherwise handle
community or similar wastes. The same is true for hazardous waste produced
by households or agriculture and forestry operations.
Another field of municipal activity is the delivery of a wide selection of
cultural and leisure services. Theatres, orchestras and museums, are often run
by them or receive indirect funding. There is a dense network of museums,
theatres and orchestras in comparison to the country’s population. Local au-
thorities often financially support cultural associations and their events or pro-
vide them with the premises. Municipalities also maintain libraries whose serv-
ices are generally free of charge.
Public transport is often arranged in cooperation with private companies.
Larger towns use financial support from city authorities to maintain a high
level transport system, while smaller towns and rural areas have a more basic
level funded by state and local authorities
Public utilities are usually owned by municipalities and a few belong to
private corporations. Generally, the large cities have their own energy author-
ity that distributes power to areas, and some of the bigger ones also generate
electricity. In other municipalities, private companies or companies owned by
several local authorities provide electricity. There is free competition in the
electricity market. Finally, municipal energy authorities generally supply district
heating. The local council of municipalities decides on which areas will need
water supply and sewage. Almost the full cost of these utilities is covered by rates
charged to users.
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193
olli mäenpää
The members of the Board are chosen by the Council. The parties repre-
sented in the Council obtain seats on the Board in proportion to their share of
Council seats. Since all parties are represented on the Board, there is no actual
opposition/government setting in municipal decision-making. The Board is the
highest executive body of the municipality and is responsible for the general
administration and financial management. Specifically, it prepares and exe-
cutes Council decisions and supervises their implementation. The Board also
represents the municipality by exercising its right to be heard, oversees its in-
terests and supervises the legality of Council decisions.
194
local government in finland
195
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two principal groups according to their legal status: municipal officials and
municipal employees. The rights and duties of the latter are based on contrac-
tual relationship under private law. The Employment Contracts Act regulates
both this employment contract and those of the private sector.
Municipal officials are in a non-contractual employment relationship, which
falls under administrative law. According to the Municipal Act, only municipal
officials may be empowered to exercise public authority. The status of munici-
pal officials is regulated by the Municipal Officials Act (2003). In addition,
general provisions in the Municipal Act (1995) regulate the status of these of-
ficials. In practice, the differences between state and municipal officials are
minor, even though the statutory basis for their rights and duties is different.
Municipalities are free to select and manage their staff, and neither central nor
regional authorities have any say in the administration of a these employees.
Funding for Finnish municipalities is derived from three main sources: mu-
nicipal taxes, municipal charges, and state subsidies. In 2009, tax revenues ac-
counted for some 47%, operating revenues for 27% and state transfers for 19%
of municipal income. Other sources of revenue include investment income,
loans and other financial income. Total municipal expenditure for 2010 was 40
billion €. The strength of local self-government derives largely from the mu-
nicipalities’ independent right to levy taxes and charge user fees. Municipali-
ties fund nearly half of their operations from their own tax revenues, which
consist of a local income tax and a real estate tax. In addition, they receive an
annual share of revenues from corporate taxes levied by the State.
Another major source of municipal revenues consists of user fees and cus-
tomer charges that account for approximately a 25% of municipal revenues.
State subsidies are the third source, albeit a minor source. In 2009, subsidies
from central government covered some 19% of all municipal revenues. State
subsidies are not earmarked and municipalities are free to determine their use.
The municipal income tax is levied at flat rates on individuals’ earned in-
come. The municipal Council sets the rate annually and in advance for the fol-
lowing year in each municipality on the basis of the municipal budget. Each
municipality decides independently on its income tax rate and no upper cap is
set. In 2009, the range of local income tax for all municipalities was 16-21% of
taxable income, which averaged out to 19.17% of all taxable income. Munici-
pal tax rates have shown considerable continuity and consistency, but recently,
there has been a steady increase. Since municipalities are required to present a
balanced annual budget, the economic pressures on municipal finances are im-
mediately reflected in tax rates.
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local government in finland
The real estate tax is determined by the taxable value of each property and
by the tax rates set annually by each municipality. Although it may appear that
municipalities are free to determine these rates, in reality, the property tax has
an upper and lower limit prescribed by law. Up to now, property taxes have
remained fairly modest, and represent only 2.5% of total municipal revenues,
but there is increasing pressure to raise property taxes to finance the growing
costs of health care. Municipalities do not directly levy the corporate income
tax, but they do receive their share of the State tax revenue. This share is deter-
mined by law and is presently set at 33% of total corporate tax revenue, and
amounts to less than 3% of total municipal revenues.
Municipal tax revenues are a major contribution to municipal finances and
have recently grown at an average annual rate of 4.7%, which is lower than the
growth rate of municipal expenditures (6% annually). This disparity will eventu-
ally call for an adjustment of municipal expenditures or a tax increase, or both.
Municipalities also derive income from charges and fees for managing local
energy and water supplies. Municipalities may operate other businesses such as
public transport, sewage networks and ports. Two-thirds of municipality in-
come from charges comes from publicly owned enterprises, mainly power and
water supply, sewerage works, waste disposal, and public transport. As in the
case of local taxes, municipalities have significant power in determining the
charges for such services. Within the limits imposed by law, municipalities
may also charge for social services and health care, as well as for cultural serv-
ices. These charges have only a minor significance in funding these services.
Less than 10% of social welfare and health expenditure is covered by charges
and fees, and basic education is provided free of charge.
The third most important source of municipal income is state subsidies,
which have two basic functions. They are usually paid out, because munici-
palities have undertaken statutory services such as education, health and social
services. In this case, the grants function as financial assistance to local au-
thorities in exchange for offering services. The second function is to equalise
the differences between municipalities and to offset disparities in public service
costs thus facilitating equal access to these services. As a whole, the State trans-
fers account for less than 20% of all municipal revenues.The Ministry of Fi-
nance administers the grant system.
State subsidies for current expenditure to the municipal sector comprise:
1) General subsidy, a block grant, which is granted per capita;
2) Subsidy for social welfare and health care, which is determined on a per
capita basis and according to the age distribution of the municipality’s
population;
3) Subsidy for education and cultural affairs, which is partly determined per
capita and partly per pupil and student, or according to the scale of op-
erations;
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olli mäenpää
Local authorities are free to use their revenues to perform their functions in
the manner they prefer, without restriction. Municipal tasks related to welfare
state services (health and welfare services, basic and vocational education)
comprise some 70% of municipal expenditures. The municipal budget, ap-
proved annually by the Council, forms the foundation for municipal finances.
At the same time, the Council approves a financial plan for at least the next
three years. The budget and the financial plan contain the municipality’s opera-
tional and financial aims. In order to ensure the preconditions for discharging
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local government in finland
the municipality’s functions, the municipalities are under the obligation to draw
up plans for covering accumulated deficits. The Council decides on any chang-
es to the budget.
Municipalities have unlimited right to own assets. They may own tangible
and intangible, moveable and real estate property. Ownership is governed by
rules of private law regardless of the status of the proprietor. Thus, municipal
ownership is also regulated by private law rules. There are no special arrange-
ments for ownership in the public sector other than that municipal ownership is
not subject to taxation. Municipalities own real estate, housing and land. Ten
per cent of Finland’s housing stock is in municipal ownership. Municipalities
also own most of state-subsidized, rented housing. The annual outlay on real
estate accounts for over 10% of municipal expenditure.
199
olli mäenpää
Finland has no constitutional court and laws as such are neither appealable
nor justiciable in abstracto. Therefore, and contrary to other European coun-
tries, there is no specific constitutional appeal or procedure designed to chal-
lenge an Act of Parliament, if the act is thought to be in contradiction with the
general principles of local autonomy laid down by article 121 of the Finnish
Constitution (See, supra, point 3).
Both civil and administrative courts, however, have the power to analyse the
constitutionality of legislation enacted by the Parliament, if this legislation is to
be applied in an actual case. If they find that a statute or a provision thereof is in
evident conflict with the Constitution, the courts may decide not to apply the
suspect legal provision in that specific case, but they lack the power to set aside
the said provision. Also, a specific feature of the Finnish legal system is the con-
200
local government in finland
3
The Finnish delegation in the Committee of the Regions is composed of nine full members
and nine alternate members. All the full members are representatives of local government: four
members of city councils, one chairman of city council, three members of local executive boards
and one representative from a province. Source: Committee of the Regions Website: http://www.
cor.europa.eu.
201
olli mäenpää
(A) Handbooks
Hannus, A.; Hallberg, P. & Niemi, A.: The Municipal Act. Helsinki 2009. (In
Finnish)
Harjula, H. & Prättälä, K.: Municipal Law – Background and Interpreta-
tions. Helsinki 2007. (in Finnish)
Heuru, K.; Mennola, E. & Ryynänen, A.: The Municipality. The Basics of
Municipal Autonomy. Tampere 2008. (In Finnish)
Moisio, A.; Loikkanen, H. & Oulasvirta, L.: Public services at the local level
– The Finnish Way. Government Institute for Economic Research. Helsinki
2010.
Mäenpää, O.: Les autorités locales en Finlande. Delcamp, A. & Loughlin, J.
(eds.), La décentralisation dans les États de l’Union européenne. Paris 2002,
137-151.
(B) Periodicals
202
Chapter 9:
LOCAL GOVERNMENT IN FRANCE
Robert HERTZOG
The 2003 revision of the French Constitution1 added to article 1, which defines
the Characters of the Republic, the following sentence: «It shall be organised on a
decentralised basis». Decentralisation («décentralisation») has been the French
political concept for local self-government since the 19th century. Today, the French
model is the product of a long history and not of some precise doctrine. In the feu-
dal monarchy, each province had its own legal status and the territorial power was
in the hands of landlords, the Catholic Church and the agents of the king. Some
cities, gratified by special liberties, were ruled by an oligarchic government.
Immediately after the 1789 Revolution abolished this system2, the National
Assembly decided on a new territorial organisation that has shaped France until
today. An Act of 22/12/1789 created the municipalities (communes in French)
and «departments» (départements) with an identical status all over the country.
Each parish - more than 40,0003 around the country - could become a munici-
pality with elected organs and a public status. The «department» was designed
to be the level for performing general State administration by elected authori-
ties under the control of ministries. But times were troubled and a new order
was established by Napoleon Bonaparte’s government by the law of 17/2/1800
«concerning the division of the territory of the Republic and the administra-
tion». It was called «the administrative constitution of France» because its main
provisions and general logic remained in force for nearly two centuries. It cre-
ated the préfet, the general administrator of the department, and a deliberative
1
See the text of the French Constitution (also in English) at: www.legifrance.gouv.fr
2
The Declaration of human rights and civil liberties (26/8/1789) is still part of the consti-
tution.
3
At that time, France was the most populated country in Europe, with about 25 million in-
habitants.
203
robert hertzog
assembly, the conseil général4; but all authorities were appointed by the central
government or its representatives.
Decentralisation progressed by strengthening elected assemblies and creat-
ing a political awareness of municipal and departmental communities. An 1833
Act decided that municipal and departmental councils should be elected. De-
partments suffered a legal transformation by law of 10/5/1838, which created
its dual nature: on the one hand, departments were characterised as districts for
State administrations; and, on the other hand, local self-government units, in
both cases under the authority of the préfet. The law of 10/8/1871 extended the
powers of its assembly. So did the «great municipal law» of 5/4/1884 for mu-
nicipalities, as their council was granted the power «to decide on all municipal
affairs». This was interpreted by the Administrative Court as a general clause
of competence, allowing the councils to act in any domain of local interest.
The 1946 Constitution had a special section on local self-government that
announced important reforms … which were never performed. Likewise, the
1958 Constitution recognized municipalities (communes) and departments (dé-
partements) as collectivités territoriales with a guarantee of autonomous ad-
ministration by elected councils (art. 72). A law of 31st December 1970 ex-
tended the «municipal liberties», reduced the control by the préfets, especially
on budgets, and modernised the management rules. Later, an Act of 16 July
1971 expressed a national strategy to reduce dramatically the number of mu-
nicipalities. In spite of supplementary grants for amalgamation, the number of
local entities was only reduced from 38600 to 36600 (several merged munici-
palities divorced afterwards!). This failure had a long lasting impact. It showed
that a systematic process of amalgamation was impossible in France because a
majority of politicians and citizens opposed it.
Special attention must be given to the «big bang» reform of 1982. In May
and June 1981, a socialist President of the Republic and a socialist majority at
the National Assembly were elected for the first time since the foundation of
the 5th Republic in 1958. The central cabinet, run by men with long experience
in local administration, decided to widen the decentralization reform that had
being discussed in Parliament since 1978. Despite a strong opposition of the
Senate, the Act of 2/3/1982 «on the rights and liberties of the municipalities
(communes), departments and regions» enforced dramatic changes. It was fol-
lowed by tens of special statutes and hundreds of decrees, rapidly accepted by
all political parties and implemented with a real consensus. The most symbolic
and decisive innovation was to transfer the executive powers in the department
and the region from the prefect to the president of the said department and re-
gion, who would be elected by the assembly. This needed to separate the serv-
ices of the préfecture (the prefect office) between those staying under the au-
thority of the prefect and assuming State powers and those placed under the
4
General council: because it had competence for all administrative matters(!).
204
local government in france
5
A possible reduction in the number of departments by about a half is discussed since the
1940’s.
6
Tens of Reports in Parliament or by committees commissioned by the central government
on general or specific questions, had diverse influence on the decisions that were finally adopted.
205
robert hertzog
were only partially decentralised until 1982. Regions have full political and
administrative autonomy only since 1986. So, local self-government was syno-
nym of municipal autonomy and the «commune» (the municipality) was a rev-
olutionary myth opposed to State power in 1791-1793, 1848 and 1871. Most
municipalities are indeed weak because of modest human resources and finan-
cial dependency from the State. Furthermore, different attempts for amalgama-
tion failed all along history (in 1795, 1942, 1947 and 1971). However, a total
figure of 36,791 mayors and 519,417 councillors are an extremely influential
political group. The paradox is that local self-government has been more devel-
oped on its political side than in the legal provisions.
For what concerns hot current issues, it can be said that French local govern-
ments are not hit too violently by the general crisis, thanks to protective mecha-
nisms. However, their situation becomes more and more tense, especially in
departments which have no flexible resources and rising social expenses. There
are two major challenges for the next years. The first one is to restructure the
local system in order to reduce its cost, thanks to amalgamations and new coop-
eration; this needs also an action on better distribution of competences between
the different territorial tiers; but one can be skeptical on this issue as there are
solid oppositions. The second one is to reshape the resources. Tax reform has
already been done but is very unsatisfying. Updating the assets appraisals for
property tax purposes would be a progress. There is not much hope that the
State can raise the grants, so government and Parliament are trying to make
them more equitable by complying with the request of art. 72-2 of the Constitu-
tion: «Equalization mechanisms intended to promote equality between territo-
rial communities shall be provided for by statute.» Spring 2014 will be a critical
moment as there will be elections in all tiers of local self-government.
206
local government in france
(2) The second ones (decentralised bodies) are legal entities with elected
assemblies and executives bodies. They have their own competences,
properties, budget, resources and employees. Their existence and au-
tonomy are guaranteed by the constitution and protected by the Courts.
The following table shows the different sorts of both types of governmental
bodies in France and their key institutional features:789
7
Data as of 1/1/2011.
8
In each overseas region there is also a department; to these 4 was added on 1/1/2011 Mayo-
tte, an island near Madagascar, which had a special status but decided by referendum to become
a department.
9
Large cities are divided in several cantons; in rural cantons exist often two State services,
a gendarmerie group and a tax and treasury office.
207
robert hertzog
Local government has traditionally been a matter of Law and political doc-
trine, studied in Law schools within the regular courses on Administrative Law.
Customary principles were repeated without much legal support. For example,
the uniformity of statutes and the principle of equal rules for all entities in a
given category (municipalities, departments) was for long time a reality that is
today totally out-dated. A comprehensive constitutional theory was built when
the constitutional Court (Conseil constitutionnel) developed a steady case law
on this subject, since the beginning of the 1980’s, when important reforms pro-
voked political struggle and frequent appeals. In addition, subsequent modifi-
cations of the Constitution, in 2003 and 2008, have considerably extended its
provisions on local self-government.
The prime legal basis is still the 1958 Constitution. Some of its provisions
are completed by «organic statutes» (Lois organiques) that have to be respected
by ordinary statutes.11 The Constitution contains Title XII (art. 72 to 75-1)
called «on territorial communities» (collectivités territoriales). Other articles
contain also provisions related with local and regional authorities. This consti-
tutional status, as well as the legal provisions contained in the Code of Local
Government (see below) provide common principles and rules for regions, de-
partments and municipalities (communes). All are considered as being of the
same nature, without hierarchy among themselves and no difference in their
type of powers.12
10
The generic name of communities and unions in French is: établissements publics de
coopération intercommunale, EPCI.
11
On financial autonomy, organisation of referendum in local government and the possibil-
ity of experimentation of new models of organisation or procedures.
12
Regions have no legislative power and few regulatory competences, when municipalities
have important ones for town planning or security.
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local government in france
Art. 34 of the French Constitution has had a central role in the constitu-
tional case law, as it says that law shall fix up the «basic principles of … the
self-government (libre administration) of territorial communities, their powers
and revenue». The Constitutional Court has interpreted that key provision as
meaning that all important rules on local authorities must be passed by Parlia-
ment, in which «the Senate shall ensure the representation of the territorial
communities of the Republic.» (Art. 24) Senators are elected by local govern-
ments.13 Moreover, «bills primarily dealing with the organization of territorial
communities shall be tabled first in the Senate» (art. 39). As a huge majority of
members of Parliament are or have been elected in local government, this is a
very strong guarantee for the local interests. The local and regional authorities
associations often write amendments that are presented by members of Parlia-
ment with a great probability of adoption.
Likewise, art. 72 of the Constitution contains a list of autonomous local and
regional communities (municipalities, departments and, since 2003, regions)
and allows the creation of new categories by statute. They have elected councils
and are granted the right of free administration («libre administration») in the
limits of the Law. No local government has authority over another one (regions
over departments, for example). The State representative has the right (and, ac-
cording to the Constitutional and Administrative Courts, even the obligation) to
control the legality of the decisions taken by local and regional authorities. Art.
72-2 provides for financial autonomy for local and regional authorities, and the
principle of fiscal equalization and compensation if new tasks are delegated by
State. The Constitution has also provisions on the right of petition for having a
question discussed in a local council and use of referendum; these procedures
are not often used in fact.
Moreover, long constitutional articles give precise rules for overseas public
units with different levels of autonomy and special legislation, which creates a
unique system. The regime of New Caledonia and Polynesia looks like soft
federalism. They have a ‘cabinet’ and an assembly with quasi legislative pow-
ers on certain matters.
Free administration («libre administration»), as mentioned at articles 34
and 72, is the key constitutional concept of local autonomy. This concept has
allowed the Constitutional Court to produce a creative case law. Its positions
are rather balanced, but it is not considered as being very audacious in favour
of decentralisation. Its voluminous case law becomes even sharper since new
(2009) procedures allow a litigant in any ordinary suit to claim that a law vio-
lates the constitution and should therefore be examined by the Constitutional
Court in order to appreciate the conformity of its rules (the «constitutionality
question», question de constitutionalité). This possibility has already been used
13
The Senate is elected by indirect election: the greatest number of voters are delegates from
municipalities, either members of local councils or citizens designated by it.
209
robert hertzog
by many local governments, several times with success, to contest laws that
were in force since a long time.
On the other hand, France has a specialized administrative jurisdiction14 that
had traditionally the monopole of the regulation of governmental bodies and
agencies in their relations with the citizens and in the relations between them-
selves. Citizens and the préfet can sue any administrative decision and even con-
tracts issued by local and regional authorities in the Administrative Courts. Local
and regional authorities can also challenge any decision taken by State authorities
or other local bodies, either individual adjudications or regulations, including
decrees of the President, the Prime minister or the préfet. Combined with the pos-
sibility to have access to the Constitutional court, these should be deemed as suf-
ficient judicial protections. The Conseil d’Etat has a balanced case law. On the
basis of an ambiguous provision in the Municipal Act of 1884, it recognised mu-
nicipalities a general clause of competence to act autonomously in all matters of
local interest, as far as there is no legal prohibition or explicit power given to
another authority. But courts pay attention to preserve the core power of the cen-
tral government, in the logic of a unitarian State and legal system.
The European Charter of local self-government (ECLSG), a Treaty con-
cluded within the Council of Europe, contains principles that bind the Parlia-
ment and the central cabinet, since art. 55 of the French Constitution specifies
that treaties duly ratified shall, upon publication, prevail over Acts of Parlia-
ment. France participated actively at the preparation of the Charter and was one
of the few states who signed it immediately on 15/10/1985. However, ratifica-
tion, authorized by a law of 10/7/2006, became effective only on 1/5/2007.
Decentralization was much ahead of the requirements of the Charter since the
reforms of 1982, but there were some minor legal objections and the ministries
were not eager to accept a monitoring by the Strasbourg institutions. The legal
impact of the Charter is marginal. The idea of subsidiarity, that was new in
France, had been included in art. 72 of the Constitution in 2003.
As for domestic legislation, the main provisions on local self-government
are consolidated in the Code général des collectivités territoriales (CGCT), one
of more than 50 codes in which laws and decrees are organised in articles
grouped in chapters with logical topics. Codes are very useful in matters where
plenty of rules change constantly. The CGCT is divided in 6 parts: General
provisions, common to all local authorities; Rules for municipalities (com-
munes), Departments and Regions; Local cooperation (inter-municipal coop-
eration, but also between regions or departments); overseas communities with
special statute. More provisions are included in sectoral codes like the Tax
code, codes of the Financial jurisdiction, Education, Transports, Urban plan-
ning, Housing, Public properties, etc.
14
42 Administrative courts; 8 administrative courts of appeal; at the top the Conseil d’Etat,
created in 1799, which has many different competences.
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local government in france
15
The main consequences of the distinction regulatory/individual acts are in the jurisdic-
tional procedures or in the possibilities of modification and annulation.
16
Detailed information can be found in the Reports of the «Observatoire des finances lo-
cales» (see bibliography). Municipalities, too diverse to support general transfers, had options for
certain ones, monuments or airports.
17
Department budgets rose from 43 billion € in 2003 to 68,5 in 2009.
211
robert hertzog
18
Marc Laffineur, Augustin Bonrepaux: Rapport d’information sur les transferts de compé-
tences de l’Etat aux collectivités territoriales et leur financement, Ass. Nat. N° 3523, 14/12/2006
19
Cour des Comptes: La conduite par l’Etat de la décentralisation, 10/2009, 176 p. Jean-
Luc Warsmann Rapport d’information sur la clarification des compétences des collectivités ter-
ritoriales, Ass. Nat. N° 1153, 8/10/2008.
20
The «Committee for a reform of local government», chaired by former Prime Minister
Edouard Balladur, proposed in his Report ‘Time to decide’ to President Sarkozy (3 March 2009,
Journal Officiel 6 March, on legifrance.gouv.fr) major modifications of the whole local govern-
ments, considering that it was out-dated in many aspects and had structural defects. It prepared
and inspired the law of 16/12/2010.
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local government in france
without reducing the number of tiers. It considered also that the general clause
of competence, given jointly to municipalities, departments and regions, gener-
ates overlapping of actions and costly competition between local governments.
Therefore, a draft presented by the central government in October 2009 pro-
posed to specialize departments and regions by allowing intervention only
when the law explicitly would authorize it. The Parliament did not accept this
strict position. Finally, the Act of 16/12/2010 states the principle of specializa-
tion but adds so many exceptions that the situation will be really intricate in the
future. The law allows also the delegation of competences between local gov-
ernments, something that can bring a lot of complications. The region should
establish with its departments a multi-annual plan, specifying their respective
competences.
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robert hertzog
Municipalities are extremely diverse. They have a common status, but with
more and more technical differences (elections, budget structure, modalities of
grants, human resources management, salaries and staff positions…). Paris is
unique as it is at the same time a municipality and a department. Its Council and
Mayor have competences in both legal capacities. Security and the police are
under the authority of a prefect of police, depending directly on the ministry of
Interior. Like Lyon and Marseille, Paris is divided in communes d’arrondissement
(a kind of «district» or section) which have their own council and mayor, staff
and budget for current administrative, social, cultural and educational matters.
The deliberative organ of municipalities is the Municipal Council. Council-
lors, in number of 9 (for entities under 100 inhabitants) to 69 (over 300,000
inhabitants) are elected for six years (last time in March 2008) by the registered
voters. In municipalities with less than 3,500 inhabitants, candidates can run as
part of a list; voting for candidates on different lists or deleting names is al-
lowed, and votes are counted for each candidate. During the first round, candi-
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local government in france
dates who get more than 50% of votes, representing more than 25% of the
people registered on the electoral list, are elected. At the second round, a rela-
tive majority is sufficient to be elected. In municipalities having more than
3,500 inhabitants, full lists are compulsory and voters cannot change them.
During the first round, the list that gets more than 50% of votes gets immedi-
ately the majority of the Municipal Council. The remaining seats are propor-
tionally shared among all the lists which got more than 5% of votes, including
the winning one. If no list gets an absolute majority, there is a second round
among the lists which got more than 10% of votes. During the second round,
the list which gets the majority of votes wins the majority of seats, the remain-
ing seats being shared as said above.
This situation can be assessed as a good compromise, for there is always a
solid majority in the Council and the Mayor has a strong support and authority.
Minorities have also a representation. A central government decree can break
up the Council when a chaotic situation prevents it to fulfil its duties, and new
elections must be held in short delay. Municipal councillors are considered as
volunteers and therefore do not get a salary. However, they can be financially
compensated for extra expenditures linked to their duty. Towns can establish a
general allowance that can be consistent (up to about 1000 € per month). Coun-
cillors have different rights: for training, protection against attacks, absence in
job, etc. A long lasting debate on «professional status» for local politicians is
blocked by ideological considerations and financial difficulties.
The Municipal Council gathers at least four times a year and at any time the
mayor so requests. Meetings are public, unless the Council decides otherwise.
The Mayor is responsible for setting the agenda of main points which will be
discussed in the meeting. The municipal council is responsible for the adoption
of the budget, the rate of taxes and fees, the guidelines of the different policies,
the town planning rules, for deciding the job positions for employees, the crea-
tion, organisation and management process of services and equipment, author-
ising the Mayor for signing contracts, including loans, etc.
The executive municipal body is formed by the Mayor and several deputy
mayors. The election of the Mayor happens in the week following the election of
the council. He is generally the leader of a solid majority. Deputy Mayors are
elected on proposal of the Mayor. Their number cannot exceed 30% of the number
of councillors. They are, of course, political friends or allies of the Mayor, their
powers are those delegated by the Mayor, and he can take them away at any mo-
ment. Mayor and deputy mayors cannot be dismissed by the Council but under
specific conditions he can be dismissed by the central government. The Mayor is
responsible for the preparation and implementation of the decisions of the Council,
which can delegate to him part of its powers. Furthermore, he represents the State
and therefore carries out some State delegated responsibilities, as mentioned su-
pra. The Mayor has also his own competences, which are not shared with assem-
bly: he has regulatory power in matters of security, traffic, health, environment;
215
robert hertzog
delivering of construction permits, etc. He organises the services of the City Hall
and is the chief of all employees who are appointed by him, generally after a com-
petitive exam when a position has been published as vacant. The mayor and depu-
ties are not considered as professionals, but get a gratuity that is proportional to the
population of the municipalities. In big ones, the position of Mayor is, in fact, a
full-time job and his holder has often another political mandate in inter-municipal
cooperation bodies, other local government or even in Parliament.
The first legal frame to be considered here is the Act of 22/3/1890, which set
up a model of municipal union called syndicat in French. It has legal personal-
ity and can assume a public function in place of municipalities. Its creation
needs unanimity. Multi-purpose municipal unions, allowed in 1959, were a de-
cisive progress. Afterwards, the law permitted their creation by a special major-
ity: 1/2 of the municipalities and 2/3 of population, or the reverse. Thousands
of unions were created in the 1960’s-1970, when France had a booming econo-
my, fast growing metropolitan areas and a national policy for the modernisation
of public services. These «pipe unions» (water supply, garbage collection, elec-
tricity or gasworks, urban transport) look much like public companies though
municipal law basically applies. Many have no own staff, the tasks being ful-
filled, on the basis of a contract, by the employees of one municipality, or the
services being delegated to a private contractor.
As for the procedure to create these bodies, it starts with the publication by the
prefect of a list of municipalities that will be consulted on a project to create a
certain type of union. In fact, the prefect holds informal preliminary discussions to
build consensus or to react to the proposal of a group of municipalities. If unanim-
ity (generally) or a qualified majority of municipal councils approves the project,
then the prefect issues a decree that creates formally the union, and defines its by-
laws. The union is a legal entity. Its assembly is composed by delegates elected by
each municipal assembly (normally 2). The syndicat de communes elects a presi-
dent and vice-presidents, who have executive power. The resources of the budget
216
local government in france
are the fees paid by the users of the services, contributions paid by the municipali-
ties in pursuance of criteria that are in the by-laws (number of inhabitants, of pupils
in schools, length of the roads, fiscal capacity of each participating municipality,
etc.). It receives general grants from the State budget and can get specific ones for
investment. It can contract loans with banks. The employees are civil servants or
contractual employees, if the union has commercial activity. Unless the law says
differently, the general provisions applying to municipalities apply to unions.
Thanks to these unions, all basic public services are available everywhere. By
creating solidarity and confidence between local politicians and bureaucrats, they
allowed a step forward for more integrated structures.
21
Data as of 1/1/2011.
217
robert hertzog
(a) For rural municipalities and small cities (the law sets no size limit22):
2,387 communautés de communes, with a population of nearly 28 mil-
lions.
(b) For larger cities (total over 50,000 inhabitants and a city of at least 15,
000): 196 Communautés d’agglomération (CA) with a population of
23,7 millions.
(c) Metropolitan cities (over 500,000 inhabitants): 16 Communautés ur-
baines (CU), with an overall population of 7,7 millions inhabitants.
The creation of an inter-municipal «community» (communauté) is similar to
that of the unions. Communities are legal entities, with compulsory minimal
competences in economic development and urban planning. All other munici-
pal competences are open for transfer, except State delegated competences,
which belong to the mayor. It is possible to add new competences at any time
and many communities are in a continuous process to extend their functions.
Community councillors are elected by municipal councils23: each one elects
a number of delegates in approximate proportion to the population. The small-
est ones have at least one delegate, generally their Mayor. These assemblies can
be really numerous. President and deputy presidents of the community are
elected by the community council. They have the same executive powers than
the Mayor, in the matters for which the IMC is competent. The community has
its own administration and staff but can, by contract, share it with a municipal-
ity. The law of 16/12/2010 has established provisions to facilitate such mutu-
alisation practices.
The budget follows the same rules as the municipal budget. The resources
are: the local business tax, the tax on property for waste collection, the tax on
salaries for public transports. The «communautés de communes» have taxes
additional to municipal taxes, but they can opt for exclusivity of the business
tax. Community council can create an equalisation fund that re-distributes part
of its tax income to the participating municipalities, on criteria defined by the
council. Moreover, communities receive general grants from the State and they
can establish fees for commercial services and contract freely loans.
The «Committee for the reform of local government» (see supra) proposed
in his Report (3 March 2009) major modifications of the IMC. Some of them
22
650 CC have less than 5,000 inhabitants! Half of the total is under 10,000 and only 29 have
a population of more than 50,000.
23
In the next scheduled local elections (2014) the delegates will be mentioned on the voter
bulletins; the municipal council will no longer have to decide who shall represent the municipal-
ity, as this will depend directly on the result of the election.
218
local government in france
219
robert hertzog
hand, grants from national budget have stabilised. The consequence is that they
reduce investment as well as discretionary expenses (culture, support of mu-
nicipalities, etc.), and their debt is rising.
The region is the youngest territorial body in France. It was primarily estab-
lished in 1959, as a district for State administration in charge of economic de-
velopment and coordination of the national policies. It evolved by steps and is
fully decentralized since 1986. It has no legislative power, nor even much regu-
latory competences. Its native field of responsibility is planning, regional de-
velopment, financial support of policies considered of regional interest though
they are under the responsibility of ministries, universities, scientific research
centres or other local governments. As shown above, new competences were
added several times, without any strategic vision. Their financial size is about
13% of the total local government budgets, which is less than 40% of depart-
ments. Yet certain regions (Corsica, all those overseas) have special compe-
tences and a great autonomy.
The regional council is elected for 6 years, but the one elected in 2010 will
stay in office until 2014 only. The electoral system has been modified several
times. The one in force in 2004 and 2010 is especially complicated in order to
allow a representation of the departments and to guarantee a political majority
because until 2004 most regions had volatile majorities. In the 2014 elections,
new rules will apply: a territorial councillor will be elected as member of both
the department’s and the region’s council.24 The council, which has at least 4
meetings a year, elects a permanent committee to which it can delegate most of
its competences, except in matters of budget and taxation. The president, elect-
ed by the council at its first meeting after elections, is, in fact, the leader of the
list that wins the competition. The president and the vice presidents have clas-
sical executive tasks, and they can delegate certain competences to high rank-
ing officers.
An advisory council, the Economic, social and environmental regional
council (CESER) represent varied interests. 5% of the members are appointed
by the prefect among «qualified persons» in regional development. All others
are presented by the institutions that are, in fact, the real members: trade unions
(35%), employers (35%) and associations, NGOs, university, etc. This advisory
council gives an advice on the budget and annual accounts, on any question the
president asks for and can decide by itself to make audits, studies and evalua-
tions on regional policies or matters of regional interest.
24
Union of two mandates on one person is meant to facilitate future amalgamation of depart-
ments and region. Though serious objections, the Constitutional Court did not consider that it
was a violation of law. The opposition, though, has promised to abolish it.
220
local government in france
The French civil service law, conceived at the end of the 1940s, was applied
only to State employees. Local governments had a large liberty to recruit and
manage their own employees, often in low positions and with a logic of «clien-
telism». Staff was under-qualified, even in big communities. Provisions were
different in nearly each one and mobility was rare. In the early 1970s a national
agency was created, ruled by delegates from local government, with the mis-
sion to establish a professional training program and organise or supervise the
recruitment procedures for entering into local government careers. This agency
is now the Centre national de la Fonction publique Territoriales (CNFPT).
This legal entity, financed by taxes paid on local government salaries, has the
mission to organize the professional training of local employees. It has differ-
ent schools and regional branches around France. After the decentralisation
laws of 1982, the central government decided to modify the general status of
the civil service. Therefore, a 1983 Act created three categories and defined
their overall status: State civil service, local civil service and the one of public
hospitals. The law of 26/1/1984, dedicated to local civil service, organizes a
career-oriented system. Regulations are enacted by the central government af-
ter consultation with an advisory committee with representatives of local gov-
ernment executives and trade unions.
25
Total 50,2 billion€ in 2009; 32 in muncipalities, 10,7 in departments, 5 in IMC and 2,7 in
regions.
26
A survey in 2011 shows that local government employees are the happiest with their jobs,
compared with State employees and private workers.
221
robert hertzog
To enter the local civil service, succeeding a competitive exam does not
grant directly a position. Successful candidates are signed on an aptitude list
for three years and have to apply for a position at a concrete local govern-
ment. This allows a good balance between liberty of decision by each em-
ployer and a guarantee of minimal qualifications of the personnel recruited.
The salary scale is the same as in the State civil service, but there are often
additional advantages. Employees are in a statutory position with many pos-
sibilities to progress during their professional life.27 Mobility, especially in
the higher jobs, is easy and common, because the status is unified for all local
government. In each department, a Centre de Gestion, an inter-administrative
legal body, has responsibility for the statutory management of local employ-
ees working in entities with less than 350 employees, which is the situation of
the greatest number of municipalities; yet, individual decisions are taken by
the mayors.
The higher staff jobs in local governments (General Director, deputy direc-
tors) are «functional positions». These are powerful officials but they can be
removed at any moment by pure decision of the local executive. If they are
civil servants, they keep nonetheless a job. For high management positions,
called «territorial administrators», applicants are recruited by a special school
called Institut National d’Etudes Territoriales (INET) located in Strasbourg,
like the famous State School ENA, with which cooperation is organised.
The expenses of local governments represents nearly 22% of all public gov-
ernmental expenses (including the central administration and the social securi-
ty) and 70% of public investment expenses. Their budgets have increased at
high speed since the 1980s, more than the State budget and GDP, due to the
transfer of competences but also to the dynamism of the local leaders and the
flexibility of the resources, in spite of their defects. The following figures can
be compared to the expenses of the central government (480 billion €) and the
Social Security (494 billion €).
27
Jobs are divided into eight fields representing local government’s main sectors of in-
tervention. There are also 55 work frameworks groups; each one is divided into grades that
represent the employee’s experience, qualifications or seniority. Three hierarchical catego-
ries, A, B, C, exist. About 75% of all employees are in the lowest category, C; about 14% are
B and 11% are A. There are special tracks for engineers, doctors, social service workers,
sports, etc.
222
local government in france
Municipalities 91,8
Inter-municipal cooperation bodies with own 34,1
tax power (communities)
Consolidated Municipal Sector 117,4
Departments 68,4
Regions 28
Inter-municipal unions 17, approximately29
Total 213,8
On the other hand, the following table shows the total expenses and receipts
of local governments, for the fiscal year 2010 (in billion €):2829
The general frame of the budget is the same for all local and regional enti-
ties. It is divided in two parts: current operations and investment. Both must be
balanced, but a surplus of resources in current operations means savings for
paying investment costs. Current expenses are salaries, social aids, general
administrative costs, grants to private associations (sport, social, culture), in-
terest of loans, redemption (not of buildings). The revenues consists of fees,
taxes, and unconditional grants from State. Investment expenses are mainly
28
2009 and 2010 figures are similar. A national economy stimulating programme boosted
local governments budgets in 2009.
29
This is our own estimate, as statistics on IMC unions (syndicats) are complex, and the real
figure is probably higher. The full municipal sector is then about 134,4 billion €, 58,2%, out of
a total of 230,8 billion €. One should also add the services managed by private companies on
basis of contracts (concession…), which are important in many domains (water, waste, transpor-
tation…). However, there is no consolidated information.
223
robert hertzog
debt refund, buying land, real estate and any equipment, and public works.
The specific resources are: savings, general or earmarked grants, selling of
real estate, some assigned taxes on construction and, of course, loans. Local
governments are free to take loans with any bank, by open competition, with
the condition that the money is spent for paying new investment and not re-
funding former debt.
Local government resources are numerous, complex, different for each tier
and in constant evolution. Local and regional authorities raise direct and indi-
rect taxes, as well as grants from the central government. They can establish
fees and freely borrow money (following competitive procedures) in order to
pay new investment. The existing direct local taxes, created at the end of the
18th century, have archaic characters but also some advantages. Two property
taxes, on buildings and on land, are paid by the owners, mainly to the munici-
palities, communities and departments. The taxable assets are assessed by the
government, taking into consideration physical criteria, but appraisals have not
been fully reevaluated since 1970 (!). A local revenue tax is paid to the mu-
nicipalities and the «communities of communes» (IIMC) that have not opted
for the exclusive business tax, payable by all persons (families) who occupy a
dwelling, on the basis of theoretical revenue depending on its characters. The
assemblies decide on the rate of these taxes within certain limits. Moreover,
municipalities and «communities» (IMC) can establish a tax on salaries to fi-
nance public transportation.
The local business tax has been dramatically modified by the Budget for
2010, mainly in order to reduce its weight on manufacturing activities. It has
also modified the distribution of local taxes between the different tiers of local
and regional government. The new asset is a mix of value added and property,
with additional criteria for certain activities and provisional compensation by
national budget. Regions and departments have no longer the capacity to mod-
ify its rate and get a certain fraction of the total collection. The main capacity
of decision is in the hands of the «inter-municipal communities». The system
has become awfully complex, while the reform was meant to «simplify» the old
224
local government in france
taxe profesionnelle30(!). Departments and regions get part of taxes shared with
State, like the national oil taxes. Departments receive a national tax on the car
insurance contracts. There are about 20 other taxes, some with small products:
on real property sale (municipalities and mainly department), car registration
(region), waste collection (the entity which delivers the service). Many of these
taxes are optional. Their regime is regulated by the Tax Code, but the local
council must decide to establish them in a specific unit. The councils can some-
times decide exemptions or reductions in frames defined by law.
In 2011, the financial transfers from the State budget to local government
bodies presented the following figures:
– General current grant: 41,4 billion €
– Compensation grants (for transfers of competence to local bodies): 8 bil-
lion €
– Reimbursement of VAT on local investment expenses: 6 billion €.
The proportion of grants is diverse, depending on the category of the local/
regional, the highest being the one for regions. The general grant has an equal-
ization mechanism in favor of municipalities with lower financial capacities.
The equalizing impact should be strengthened in 2012. To face financial crisis,
the grants are frozen from 2010 to 2013. This creates a situation that is harder
for the poorest local units, which need help in a context of global shortening.
30
For details, see the Rapport de l’Observatoire des finances locales 2011 (in Bibliography).
225
robert hertzog
The principle of fiscal (tax) autonomy was meant to avoid cutting of taxes
that are replaced by grants. Therefore, taxes and «other own revenues» shall
be a «decisive part» of all resources in each category of local government.
More precision shall be given by an «organic statute». The one passed in 2004
gives a definition of the own revenues that excludes grants and loans, but in-
cludes revenue coming from taxes on which local governments have no capac-
ity of decision. A general definition of the «decisive part» has been rejected by
the Constitutional Court, therefore there is only the mention that the ratio of
own revenues should not be smaller than the one valid for 2003. In fact, the
figures have risen in a paradoxical way.31 Many new revenues allocated to
departments and regions consist of a share of national taxes, considered by law
as «own revenues», but local and regional authorities claim they restrict their
fiscal power (!).
31
In 2009, as compared to (2003): 62,3% for communes (60,8); 65,5% for departments
(58,6); 54% for regions (41,7).
226
local government in france
tem has been established, with the same rules and procedures for all local and
regional entities.
To begin with, there is a control of legality on the decisions of local and
regional assemblies and executives. This is a constitutional duty of the prefect.
The law contains a list of acts that must be sent to the prefect for information.
This, and effective publicity, are conditions for entering into force. The prefect
can claim for a modification of a local or regional decision (an amendment to
be performed by the affected body) if he considers that the decision is illegal.
Alternatively, the prefect may go immediately to the administrative court for
annulment.
Second, there is also a financial control. For this purpose, a financial con-
trolling board was established in each region (Chambre régionale des comptes),
under the supervision of the national Accounts Court (Cour des Comptes). Its
members have a status of judges, though most of their activity is not litigation
but control and audit. They have three kinds of powers. First, they judge the
accounts of local and regional accountants, who are State employees. Appeal is
possible to the Cour des comptes and then to Conseil d’Etat. Second, they give
an advice when the prefect or other authorized officials claim that the budget
has not been adopted in time, is not balanced or does not contain credit for
compulsory expenses. In these cases, the prefect can decide on the budget if the
local assembly does not comply with legal requirements. On the other hand, if
the budget implementation ends with deficit (exceeding a certain ratio) the re-
sponsible local or regional authority will be put under a special supervision of
the court and the prefect. Finally, the regional boards control periodically all
local and regional authorities32 (unless the very small municipalities for which
it is done by regional branch of ministry of budget) and even private entities
which got public money. Their reports are public and must be discussed at the
next local assembly meeting. The role of these regional boards was very criti-
cized by politicians and local and regional staff,33 but it is well accepted and
probably the cause of the generally sane financial situation of local and re-
gional authorities. They pushed for better management techniques and internal
control procedures, now familiar to local managers.
32
They have also competence on other public organisations, such as hospitals, universities,
social housing, etc.
33
In the 80’s and 90’s, they made public corruption cases that ended in criminal courts.
227
robert hertzog
For example, decisions on the grants allocated to a given local community can
be discussed in the courts, as well as new regulations that create expenses for
local government units, or any administrative regulation issued by a State au-
thority.
The most efficient protections, though, lay in the political system and in its
traditions. Decentralization can be seen as a continuous struggle between a po-
litical class strongly enrooted in local society and national power-holders, gov-
ernment and bureaucracies. The reality, not always visible, is that the French
model is essentially based on cooperative decentralisation. On the political
side, there is the strong representation of local and regional leaders in Parlia-
ment, especially in the Senate. Local politicians are also the law-makers. They
have always had a strong grip on national policies because of a typical character
of the French political system: plurality of offices (cumul des mandats), mean-
ing that the same person can be elected for different positions and keep them
all: mayor, department counsellor, senator or deputy and minister.34 National
representatives identify themselves with their territorial constituencies. Most
presidents of the departments are senators, which makes them a powerful trans-
party lobby in Parliament. Furthermore, the Senate has a special role of repre-
sentation of territorial communities. Not to mention the influence of national
associations of mayors (created in 1907), of departments, of regions, of great
cities, of touristic or forest-municipalities, etc. Ministries ask always their ad-
vice when preparing new projects. They make also direct proposals and work
with parliamentary committees. Pressures from the central government, though,
often succeed in making Parliament adopting laws that are not welcome by lo-
cal government practitioners, the 2009 business tax reform for example, but
this is common politics.
At the technical level, there are many ways of cooperation between the State
and the local governments. For instance, the National Committee of Local Fi-
nances, composed of representatives of ministries and local and regional au-
thorities and chaired by a local politician, has certain powers in the distribution
of grants and must give an advice on all regulatory decisions of the central gov-
ernment that have a specific impact on local finances. There is a committee for
evaluating the compensations when new competences are transferred from the
State to local and regional authorities. Another one discusses the rules to be
established for local government civil service. There are dozens of this kind.
Summing up, the logistic of local finances, treasury and tax administration are
in the hands of State administrations, but they are in constant working relations
with the territorial communities.
Protection of local autonomy exists not only against the State, but also vis à
vis other local or regional authorities, because the general clause of competence
34
This is now restricted to two offices, and a minister cannot be an MP; but positions in IMC,
in public companies, in board of hospitals or ports, etc. are not counted.
228
local government in france
(A) Handbooks
229
robert hertzog
Ferstenbert, Jacques; Priet, F. & Quilichini, P., Droit des collectivités terri-
toriales. Dalloz, 2009.
D. Grandguillot: Les collectivités territoriales après la réforme. Gualino –
Lextenso, 2011.
Rapport de l’Observatoire des finances locales: les finances des collectivités
locales en 2011, Ministère de l’Intérieur, Paris, 2011; on the website of the
Ministry.
Thoumelou, Marc: Les collectivités territoriales quel avenir ? La Documenta-
tion française, Paris.
Verpeaux, Michel: Droit des collectivités territoriales, PUF, Paris.
Verpeaux, Michel: Les collectivités territoriales en France, Dalloz, Paris 2011.
Vital-Durand, Emmanuel: Les collectivités territoriales en France, Hachette,
Paris, 2011.
Grale: Annuaire des collectivités locales. A yearbook published since 1979,
since 2009: Droit et gestion des collectivités territoriales, Editions Le Moni-
teur.
(B) Periodicals
230
local government in france
231
Chapter 10:
LOCAL GOVERNMENT IN GERMANY
Dian SCHEFOLD
233
dian schefold
to the federal constitutional guarantee. However, there have been similar ten-
dencies of development in the several Länder: for example, in the 1970’s there
was a drastic reduction of the number of local governments in West Germany,
with the corresponding (and ongoing) development in East Germany after
1990; and the 1990’s saw the general introduction of the direct popular election
of mayors and of the referendum and popular initiative at the local level, with a
tendency towards the privatisation of many local services.
234
local government in germany
1
In this contribution, the expressions Basic Law and German Federal Constitution are used
synonymously. «BL» stands for Basic Law.
2
English language version proposed by the German Federal Ministry of Justice.
235
dian schefold
3
See, for instance, the Constitutions of Baden-Württemberg, Arts. 69-76; Bayern, Arts. 10-
12 and 83; Brandenburg, Arts. 1-2; Bremen, Arts. 143-149; Hessen, Arts. 137-138; Mecklen-
burg-Vorpommern, Arts. 3, 69 and 72-75; Niedersachsen, Arts. 57-58; Nordrhein-Westfalen,
Arts. 1, 3 and 78-79; Rheinland-Pfalz, Arts. 49-50; Saarland, Arts. 117-124; Sachsen, Arts. 82
and 84-88; Sachsen-Anhalt, Arts. 2, 75 and 86-90; Schleswig-Holstein, Arts. 2, 3 and 46-49; and
Thüringen, Arts. 80 and 91-95.
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local government in germany
4
With dates of enactment and most recent modification: Baden-Württemberg: 24 July 2000,
4 May 2009; Bayern: 22 August 1998, 27 July 2009; Hessen: 7 March 2005, 24 March 2010;
Nordrhein-Westfalen: 14 July 1994, 17 December 2009; Rheinland-Pfalz: 31 January 1994, 28
September 2010; Sachsen: 18 March 2003, 26 June 2009; Sachsen-Anhalt: 5 October 1993, 7
November 2007; Schleswig-Holstein: 28 February 2003, 28 March 2006.
5
Baden-Württemberg 19 June 1987, 4 May 2009; Bayern 22 August1998, 27 July 2009;
Hessen 7 March 2005, 24 March 2010; Rheinland-Pfalz 31 January 1994, 28 September 2010;
Sachsen 19 July 1993, 26 June 2009; Sachsen-Anhalt 5 October 1993, 16 November 2006.
6
Nordrhein-Westfalen: 14 July 1994, 9 October 2007; Schleswig-Holstein: 28 February
2003, 1 February 2005.
7
Brandenburg: Kommunalverfassung, 18 July 2007, 23 September 2008; Mecklenburg-
Vorpommern: Kommunalverfassung, 8 June 2004, 17 December 2009; Saarland: Kommu-
nalselbstverwaltungsgesetz, 27 June 1997, 11 February 2009; Thüringen: Kommunalordnung, 28
January 2003, 23 December 2005. Niedersachsen (Lower Saxony) has recently codified all the
local authorities in one Kommunalverfassungsgesetz: 17 December 2010. It should be noted that
the dates of enacting often do not reflect the original laws, but rather are re-publications after the
(very numerous) modifications, which would be almost impossible and would take too much
space to indicate in this contribution. Along the same lines, the names of the official gazettes
where the publications appeared are not mentioned herein, as they have different denominations
and abbreviations in the various Länder. Therefore, to find the actual texts, a foreign researcher
may want to consult publications such as the work of Schmidt-Eichstaedt, cited in the following
footnote.
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These laws often contain rules on inter-municipal cooperation and for as-
sociations of municipalities surrounding the larger towns. These objects are
often ruled by special laws. All these laws were enacted after 1945 (in East
Germany after 1990), and they are very frequently modified.8
Therefore, federal legislation does not have a great influence on local self-
government, although the local authorities must execute the federally mandated
legislation, along with the legislation of their respective Land. But the power to
distribute tasks, formerly often claimed by federal laws, has been limited since
the constitutional reform of 2006, which has excluded the direct imposition of
obligations on local authorities by federal legislation: this must always be car-
ried out by the Länder, and it is within their power to decide on the execution
at the local level (Art. 87.1, paragraph 7 BL). A direct transfer to local authori-
ties by federal laws is no longer allowed, unless special constitutional regula-
tions justify it. In addition, the federal administration, very important at the
central level, does not have many institutional resources at the local level (some
special exceptions being customs, a very limited federal police, military admin-
istration and control of waterways and motorways). In some areas, in particular
Social Security, there are special forms of self-government separate from those
of local authorities, and others, formerly important ones such as railways and
the postal service, have undergone organisational privatisation and therefore
function nowadays as enterprises.
Regarding the legal status of the capital city, the reunification of Germany
has certainly increased the importance of the question, beginning with the re-
unification treaty itself. The fact that Berlin is one of the City-States, however,
already ensures it a special position. On the other hand, the distribution of the
central government’s agencies (especially the federal ministries) between Bonn
and Berlin is regulated by a special federal statute, and as a consequence of the
reform of federalism of 2006, a statute on the representation of the entire State
(the Federation) in the capital city should be enacted (Art. 22.1 BL). Neverthe-
less, such statute does not yet exist.
8
For a (loose-leaf) collection connected with the laws on local elections, local finance and oth-
ers, one should refer to Gerd Schmidt-Eichstaedt (ed.): Die Gemeindeordnungen und die Kreisord-
nungen in der Bundesrepublik Deutschland, 2nd ed., 15th actualisation (January 2011), Stuttgart
(Kohlhammer). See other references and sourcebooks mentioned below in 12.2 of this contribution.
238
local government in germany
by-laws, but only within the limits established by State legislation. In practice,
most important are the local services of economic and non-economic charac-
ter, often summarized as Daseinsvorsorge (provision of existence). According
to the laws, the citizens are entitled to participate in these services. Non-eco-
nomic services of this kind are, for example, kindergartens and day nurseries,
sports fields, swimming complexes, educational institutes, cultural institutions
for concerts and theatres, parks, hospitals and cemeteries. Other competences
include local authorities’ planning power, oversight of the disposal of sewage
and refuse and participation in educational institutions. Furthermore, in terms
of local purposes and needs, local authorities have the right to exercise eco-
nomic activities, establishing local savings-banks and enterprises for energy
and water supplies, local traffic management, housing construction, etc. These
enterprises may be either a part of the local administration or separate estab-
lishments of public law, or commercial societies under the ownership of the
local community. These enterprises may often be organised through the coop-
erative efforts of several local communities. In case of necessity and public
interest, local authorities may by law establish the obligation for citizens to
use these services.
Despite this very extensive power, its exercise is difficult and limited for
financial and economic reasons (see 7, below) and for legal ones, as well. The
latter are based on the legislative framework, which may limit local self-gov-
ernment. To understand the importance of this limitation, it should be noted
that local self-government, according to the prevailing opinion in Germany, is
considered local self-administration: although separate, it forms a part of the
governmental structure, not of the constitutional system, and even local regula-
tions cannot substitute a parliamentary law. Therefore, as far as fundamental
rights of the citizens are concerned, they may be limited only by law (this con-
cept as interpreted narrowly), and local authorities have the power to act in
these spheres only insofar as such laws allow them to. For this reason, besides
the mentioned obligation to use certain local services, all local taxation, fines
for legal violations, expropriations and/or measures to protect the environment
are possible only as far as the laws legitimise them. There are many legal provi-
sions of this kind, but only these define the power of local authorities in all
these spheres.
That is why, in spite of the principle of universality which permits the execu-
tion of voluntary local tasks as long as the margin of laws is respected, the com-
petence of local authorities is rather and essentially determined by legislation. It
often declares some tasks mandatory for local authorities, especially to ensure
the necessary services of a social State (e.g., social assistance, education). With
this structure, effective service may be combined with local responsibility for
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the substance of the task. But more frequently, the legal regulation refers to both
the content of the services and the measures to be taken by the local authorities.
In this sense, urban planning, for example, is largely regulated but must be car-
ried out by the local authorities, and their economic activities in particular must
take intense regulation into account, even from the side of the European Union.
Furthermore, with or even without an explicit legal basis, State financial
resources may be allowed to aid certain local investments. With such earmarked
grants (see Art. 9.7 ECLSG), local authorities are influenced when setting their
investment priorities, e.g., in programs to finance certain sport and swimming
complexes or other voluntary tasks. The constitutional legitimacy of such pro-
grams of «golden control» is doubtful, but they are difficult to avoid.
Many of local authorities’ powers related to these tasks are regulated to a great
degree by State (Land) legislation, and local power is limited to that of simple
execution according to the directives given by the higher State bodies. This refers
above all to the tasks related to public order, in areas such as trades and crafts,
traffic, construction, immigration and public meetings, while the organisation of
the police force is nowadays generally independent of the local authorities.
For those tasks related to the public order and for other completely State-
regulated powers, there are different ways of understanding them. While, ac-
cording to tradition (and in clear separation from the tasks of local self-govern-
ment) they may be regarded as «State tasks», delegated to local authorities and
therefore under the general control of the State administration, a certain ten-
dency after 1945 (more in favour of local self-government) has qualified them
as genuine «local tasks», similar to those of local self-government, but also as
«mandatory tasks» under the power of directives of the State (Pflichtaufgaben
nach Weisung, according to the Weinheim draft of 1948). The earlier «dualistic»
construct prevails in six Länder (Bavaria, Lower Saxony, Rhineland-Palatinate,
Saarland, Saxony-Anhalt and Thuringia), while their consideration as «monis-
tic» tasks with a differing intensity of State directives determines the legislation
in seven Länder (Baden-Wurttemberg, Brandenburg, Hesse, Mecklenburg-Vor-
pommern, North-Rhineland-Westphalia, Saxony and Schleswig-Holstein).
Both constructs allow for State supervision and directives (as far as the laws
determine the appropriateness of local measures), but there are some differences
in details, especially regarding the position of local authorities calling for judicial
review against such limitations of self-government. The solutions in the various
Länder differ, although there is a tendency towards assimilation, especially in
terms of the participation of the council in the execution of delegated powers. In
both constructs, local governing bodies generally act as the lowest-ranking public
authorities and are most accessible to the citizens (cf. Arts. 4.3 and 4.4 ECLSG).
A State administration on that level has very low importance, except perhaps for
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local government in germany
the police and a few federal authorities (see 3, above). Nevertheless, there are
cases in which the legislation of some Länder makes use of certain local authori-
ties (especially the heads of administration of the Kreise) as State authorities, to
ensure the implementation of the aims of the State administration (Organleihe).
In German public law, the council may receive different names: Rat, Ge-
meinderat, Stadtrat, Gemeindevertretung, Stadtverordnetenversammlung (or
Kreistag, at the level of the Kreise). Participation in the election of the council
is a fundamental right of all citizens – German as well as those of the European
Union, according to an E.U. directive which influenced Art. 28.1, paragraph 3
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of the German Federal Constitution. Some Länder grant the right to vote to
persons age 16 and older. The electoral system, regulated by special laws on
local elections, is proportional everywhere, but in different forms, with more or
less influence of the electors. Political parties (at the federal and the Land level)
have an important influence, as do local associations of electors. While in
former years clauses of exclusion of very small parties (i.e., those receiving
under 5% of the votes) were frequent, recent constitutional case law has been
counter to them, rendering them ineffective.
According to the different legal codes of local government, the council is gen-
erally the highest governing body of the local community, with the number of
members proportional to the population, ranging from fewer than 10 to approxi-
mately 100, who are elected for a period of four to six years. The Mayor often
presides over the council, although sometimes there is a special president. There
are council commissions, some mandatory (as stipulated by the legal code) and
some set up independently, often regulated in autonomous statutes related to the
interior organisation of the council. Members of the council have the right to par-
ticipate. Those belonging to the same political party cooperate in a parliamentary
group and enjoy certain statutory rights. In cases of particular personal involve-
ment, council members are excluded from deliberation and decision-making.
As befitting its position, the powers of the council are, at least in principle,
comprehensive: the several State codes contain extensive lists of exclusive
powers. Nevertheless, there is a contradiction. In keeping with the idea of local
autonomy as part of the governmental structure, the council is not a legislative
governing body (see 4.2, above). Consequently, there should be a general pow-
er of the council in all matters affecting the local community and its administra-
tion. That was the starting point for the concentration of power in the early
post-war period. The practice, however, insisted on a limitation of the powers
of the council and the Mayor, introducing a kind of separation of powers and a
guarantee of the Mayor’s sphere of influence as head of the local administra-
tion. Furthermore, the directly-elected Mayor has his own democratic legiti-
macy and therefore a stronger position. Following these trends, the council has
the right of control, but not the general power to treat administrative matters.
There are powers reserved for the council, detailed on long lists enumerating
such tasks as internal affairs, elections, decisions on local statutes, budgets,
general problems of organisation (especially of public services and enterprises)
and territorial matters. But the interior organisation of the administration and its
individual concerns are powers reserved for the mayor.
Currently, the usual executive governing bodies in the municipalities are the
Mayor (Bürgermeister) and, where applicable, the administrative director
(Landrat) on the second-tier level of the Kreis. The latter is a civil servant,
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local government in germany
243
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portant local issues may be submitted to a popular vote, providing they are lim-
ited to those of municipal competence (i.e., not those of State competence), and
with exclusion of certain financially important affairs, planning decisions, etc.
Within this framework, a popular vote is binding if at least a minimum quo-
rum (normally 20% to 30% of the eligible voters) supports the decision. A vote
may be proposed either by the council or, in practice more importantly, by a
popular referendum. For this, a minimum quorum of signatures (between 1%
and 15%, depending upon the number of inhabitants of the municipality) is
necessary, and in addition to the aforementioned limitations of the issues to be
decided upon, certain formal conditions must be respected. On a referendum,
the council may decide in its favour – in which case the initiative is considered
successful and a vote is not necessary – or it may call a popular vote, which will
be decisive. Alternative proposals by the council are often possible. The regula-
tions differ in detail, and the experiences with the new instruments are not yet
complete, so the field is still undergoing development.
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addition to them a common local level (always local and therefore distinct from
the Kreise) with a directly-elected council and mayor. In this way there are two
tiers of local communities. The higher tier (the Samtgemeinde in Lower Saxony
and the Verbandsgemeinde in Rhineland-Palatinate) takes care of the important
administrative tasks and has its own structure with a council, full-time mayor
and administration, while the lower tier consists of its honorary organisation of
council and mayor in the individual communities belonging to the Samtge-
meinde or Verbandsgemeinde.
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weaker and attributed to the Länder (see Art. 106.9 of the Federal Constitution).
Although it is true that local communities have their own property and assets
(see 8, below) and statutory power (see 3.2 and 4.2, above), legislation, espe-
cially tax legislation, is reserved to the State, above all to the Federation. For
local taxes on consumption and expenditure, the power of the Länder is exer-
cised in enacting laws which transfer (and limit) this power to the local authori-
ties; such taxes, regulated in detail by local statutes, together with contributions
and fees constitute the principle source of local governments’ income. But the
distinction of consumption and expenditure taxes from federal taxes such as the
added-value tax is highly criticised and controversial. For instance, taxes on
dogs, on entertainment, and on second homes (for holidays) are admitted, while
a tax on packaging, for example, has been declared unconstitutional. More im-
portant are the tax revenues based on federal real estate laws on both immovable
and movable property, for which local authorities have the right to determine the
rate (see Art. 28.2, paragraph 3 of the Federal Constitution).
The incomes from real estate taxation, together with those from local taxes,
are local governments’ most important resources of their own. They constitute
more than one-third of the resources for the municipalities, while the Kreise
largely depend upon the contributions paid by the municipalities. This is what
is meant by a local goverment’s «own» finances.
Local taxes are, however, in competition with income and added-value tax-
es and are therefore criticised and limited by State legislation and jurispru-
dence. Because of this tendency, measures have been taken to balance the
amounts of these taxations. On the one hand, the State levels (Federation and
Länder) receive a part of the real estate taxes. On the other hand, to equalise and
mitigate the consequences, local authorities have the right to participate in the
distribution of income tax revenues and, more recently, of added-value tax rev-
enues between the Federation and the Länder. But these tax revenues, regulated
by federal laws and perceived by the tax authorities of the Länder – a special
form of administrative organisation in cooperation with the federal and the
Land levels –, are primarily returns for the higher, rather than for the local,
levels. Therefore, their distribution, although clearly determined by certain
constitutional and legal principles, is nevertheless a political question and not a
basic right of local authorities. At present this participation constitutes approx-
imately 40% of municipalities’ tax resources.
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local government in germany
the Federation and the Länder and among the Länder themselves. This equali-
sation, very controversial and influenced by political decisions, constitutional
rulings and even constitutional modifications, also includes the needs of local
authorities. But then the Länder, according to the Federal Constitution and to
their own constitutional principles, are obliged to carry out a similar financial
equalisation among the local governments, as well. For this purpose, there are
laws in every Land regulating the financial transfers from the central level to
that of the local authorities. They take into account the needs of the different
kinds of local governments and their concrete situations, using the instrument
of key and index numbers and providing for special subsidies in case of impor-
tant investments.
Obviously, the influence of such measures on the reality of local self-gov-
ernment is important. They may be used as «golden controls» (see 4.2, above)
and in that way limit local authorities’ decision-making freedom. Furthermore,
in a period of limited public resources, legislators may be greatly tempted to
reduce local authorities’ financing, either diminishing the conceded amount or
making those governing bodies responsible for the accomplishment of certain
tasks and thus determining the priorities of local self-government. An obliga-
tion such as providing a place in kindergarten for every child is a classic exam-
ple, and such a task may be justified as one characteristic of a social State and
therefore the consequence of the principle of equality.
But the question remains as to whether such developments can and should
limit local self-government. To protect that institution, recent constitutional de-
velopments, at both the federal and the Länder levels, provide for a principle of
connexity which guarantees the local authorities additional financial resources
if they are required to fulfil additional tasks [to wit, Art. 106.8 BL, similar to
related articles in the Constitutions of, for example, Bavaria (Art. 83.3), North-
Rhineland-Westphalia (Art. 78.3) and Rhineland-Palatinate (Art. 49.5)]. Fur-
thermore (though with exceptions), the Federation has been excluded from
charging local authorities directly, leaving this power to the Länder (Art. 84.1,
paragraph. 7 BL). The efficacy of such rules, however, may be contested and is
doubtful: are the Länder better protectors of local self-government than the
Federation? Also, what task is an inadmissible «extra burden» for local au-
thorities? Thus, the interpretation and the effects of the new regulation remain
problematic, but one must admit that at least they are now being discussed.
As a result of the system described above, it can be said that the regulation
of local governments’ financial resources remains unsatisfactory, in terms of
the insufficiency of their guarantees. Among the problems of financing public
tasks, a tier participating without decisive power in the decision-making proc-
ess necessarily remains weak. In the conflict between the constitutional guaran-
tees of the social State on the one hand, and of local self-government on the
other, the result of the balancing may always be criticised. One may ask, as
well, whether the courts should decide these problems and replace the neces-
sary political decision and setting of priorities.
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As subjects of law and as legal entities, local communities and the Kreise
are entitled to own property, a very important part of exercising the rights of
local self-government. In fulfilment of their tasks, all local communities must
manage their property, which can take the form of roads, squares, parks, schools
and public buildings, as well as houses built by local authorities to provide
apartments for residents in need of them. To the extent to which local authori-
ties exercise economic activities, they may own the relevant property and as-
sets, such as factories and technical and commercial plants. The property may
belong to the local community per se, but especially for economic activities, the
owner being an organisation as a separate legal entity is normal and frequent.
In such situations, the direct owner may be a legal entity of either public law (an
institute) or private law (a company under commercial law), and the local com-
munity is the owner of this entity or its shares, often jointly with other entities,
which is a frequent form of inter-municipal cooperation.
8.2. Limitations
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determined by State (both federal and regional) laws, which establish a public
regime for their use. It is possible (and is the practice in Hamburg) to combine
that regime with private property, establishing a kind of domaine public, influ-
enced by the French concept, but the normal solution in Germany is the combi-
nation of private road ownership (normally belonging to public legal entities)
with its designation (Widmung) for public use, regulated by public law.
The aforementioned limitations illustrate that local communities as owners
have a different position from that of private owners. They are owners in the
sense of civil law and are thus protected by the guarantee of local self-govern-
ment, but one may ask whether the guarantee of private property also protects
them. The question has been decided, in a negative decision, in a complaint
made to the Constitutional Court (Verfassungsbeschwerde), which has ruled
that it does not protect the property of local authorities as such, but only the
fulfilment of local authorities’ assigned tasks.
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If local authorities, usually the local administration, carry out their delegat-
ed powers, they are subordinate to the State administration in the respective
sphere, e.g., the Ministry of the Interior (if it is question of public security), but
often to other Ministries, such as that of Social Security, if their powers are in
question. Therefore, the relevant governmental agency has the right to give di-
rectives to the local authorities and to determine their action, with all the neces-
sary instruments. It may even seem consequent to contest the possibility of ju-
dicial review of such directives on the lawsuit against the local authority, as
such a review corresponds to the interior sphere of administration. Neverthe-
less, this question is very controversial, especially since according to the con-
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cept that qualifies mandatory tasks with directives as local tasks (see 4.2,
above), one may argue in favour of a limitation of local self-government, even
if it is mandatory tasks under directives that are under discussion. But if an act
of a local authority within the sphere of delegated powers is contested by a
citizen, the control of the appropriateness and legality of the act is first exer-
cised by the higher tier of administration and may therefore be used as an in-
strument of supervision.
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Apart from the guarantee of local self-government, the legal relations within
a local community may give rise to other legal issues. The legal codes of local
communities create many rights within the systems of local government, in fa-
vour of the council, the Mayor, commissions, groups of the council, etc. If such
rights are contested or violated, there can be lawsuits between the local com-
munity’s governing bodies which, although strictly speaking they are not legal
entities, have the right to defend their position in a conflict (Organstreit) be-
tween such bodies.
As a union of States, the European Union, in principle, did not take care of
either the internal territorial subdivisions or the systems of local self-govern-
ment within each State. This situation has been eased since the Treaty of Maas-
tricht, and the Treaty of Lisbon (especially Art. 4.2) recognizes the regional and
local structures. At the same time, that means that the creation and forms of
these structures remain the exclusive responsibility of the individual member
States and are not regulated by European law.
Therefore, as a consequence of the Treaty of Maastricht, Germany has en-
acted two satutes connecting the federal internal structures (the Parliament,
Bundesrat, Länder) with the European decision-making process. As a conse-
quence of the Treaty of Lisbon, the Federal Constitutional Court has condi-
tioned its approval of the constitutionality of the Treaty with a more effective
guarantee for the participation of the internal structures; therefore, the two
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Germany’s very rich legislation, its different forms of legal protection and its
judicial system lead to an enormously diversified case law, handed down from
the Constitutional Courts of the Federation and the Länder and from administra-
tive courts, and for some questions (representation of the local communities in
legal relations), from ordinary courts, as well. To give some examples:
– The leading case on the extent of self-government, especially the concept
of local affairs, direct responsibility, legal limitations and the essence of
self-government (see sections 3 and 4, above) is a ruling by the Federal
Constitutional Court of 23 November 1988, BVerfGE 79, 127 (especially
143 and ff.).
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254
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(a) The federal government (Ministry of the Interior), although not compe-
tent for the law of local self-government, is involved with its interna-
tional representation (Council of Europe, etc.) and therefore for com-
parative and collective presentation: see its website at: www.bmi.bund.
de/DE/Themen/OeffentlDienst/Verwaltung.
(b) More relevant are the websites of the Ministries of the Interior of the
individual Länder. They can normally be found under the name of the
Land adding .de. Some examples:
– www.innenministerium.baden-wuerttemberg.de
– www.bayern.de/. www.innenministerium.bayern.de
– www.hmdis.hessen.de
– www.mi.niedersachsen.de
– www.nordrhein-westfalen.de. www.im.nrw.de
– www.sachsen.de.
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– www.smi.sachsen.de.
– www.kommunale-verwaltung.sachsen.de.
(c) For the local situation of individual towns, their websites may be inter-
esting, as well. Furthermore, for the general situation of local communi-
ties and their authorities, the websites of the associations of towns, of the
other local communities and of the Kreise (see 2, above) are interesting:
– Deutscher Städtetag: www.staedtetag.de
– Deutscher Städte- und Gemeindebund: www.dstgb.de
– Deutscher Landkreistag: www.landkreistag.de.
(d) Research institutes:
– Deutsche Institut für Urbanistik: www.difu.de
– Kommunale Gemeinschaftsstelle für Verwaltungsvereinfachung: www.
kgst.de
256
Chapter 11:
LOCAL GOVERNMENT IN GREECE
Nikolaos-Komninos HLEPAS
The consolidation of the Modern Greek state after 1833 was connected to
the imposition of centralism and the abandonment of an old autonomist tra-
dition that characterized the kind of fragmented society typical of many
countries under Ottoman rule.1 In a country used to numerous centres of
power, no such centre could accept the rule of the national government. The
iron hand of the Bavarian regents was the only one that managed to abolish
thousands of historical communes (koinotites) and unify them in some 450
demoi (municipalities). Furthermore, the territory of the newborn state was
divided, following the French model, in 10 prefectures (nomoi). The prefects
were appointed by the King and were responsible for supervising the mu-
nicipalities.
Immediately following the victory of Constitutionalism in 1844, local self-
government was established as an important arena for party competition and an
indispensible source of democratic legitimacy. Unlike the French model, how-
ever, the accumulation of mandates was never accepted and a clear distinction
was made between the political personnel at the national level (MP’s, minis-
ters) and at the local level (mayors, councillors) political personnel was made.
Both categories were important for the kind of backstage localism that charac-
terised Greek politics and rounded off the majority-based, polarised and strictly
representative political system of the country.2 Especially after the introduction
in 1864—for the first time in Europe—of universal suffrage, the directly elect-
ed mayors could further fortify their influence.
257
nikolaos-komninos hlepas
258
local government in greece
Table 1
Number of prefectures and municipalities in Greek regions (2008)
Eastern Macedonia-Thrace 2 55
Central Macedonia 7 134
Western Macedonia 4 61
Epirus 4 76
Thessaly 4 104
Ionian Islands 4 39
Western Greece 3 74
Central Greece 5 95
Attica 3 124
Peloponnese 5 107
North Aegean 3 36
South Aegean 2 58
Crete 4 71
TOTALS 50 1,034
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nikolaos-komninos hlepas
The new reform is the first one including both tiers of local government and
de-concentrated state authorities. Furthermore, territorial consolidation is
linked to the extensive decentralization of responsibilities and resources. Spe-
cial emphasis is being given to the goals of efficiency and economies of scale,
modern management of human and financial resources and improvement of
service and professional quality. Furthermore, this reform is following basic
principles and objectives of new public management, such as systematic con-
trol and overall supervision, accountability and transparency. The simplifica-
tion of structures—many fewer units at three levels of governance—is expected
to increase multi-level and cross-departmental cooperation that will lead to bet-
ter coordination and effective steering.
Table 2
Number of de-concentrated administrations, regions and municipalities (2011)
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local government in greece
Table 3
Distribution of municipalities by orders of magnitude prior to (2010) and
following (2011) the implementation of the «Kallikrates» reform
The Constitution of June 1975 of the Third Republic (1974 to the present)
ensures the twofold incorporation of local government into the democratic sys-
tem: on the one hand, democratic procedures and rules for putting into practice
the sovereignty of the people at the local level, e.g., «through universal suffrage
and secret vote» (Art. 102 par. 2) are introduced; on the other hand, the Consti-
tution itself defines a significant part of the executive function, that is, the man-
agement or administration of local affairs, as the exclusive responsibility of
local government authorities (Art. 102 par. 1). Thus, local government could be
described as a blending of local policy and local administration. The Constitu-
tion clearly prescribes a balanced relation between these two fundamental com-
ponents: decision-making competence and available resources should, conse-
quently, render possible the formation of a «local political will» and its
transformation into management of local public affairs.3
The notion of local affairs, in conjunction with a system of multi-level local
government, is supposed to limit the competence of stricto sensu state adminis-
tration and therefore the share of executive power which this concentrates.
The Constitution of 1975 is characterized by particularly detailed regula-
tions of local government. Nevertheless, these regulations leave very wide mar-
gins for the options of the ordinary legislator. The latter is, however, restricted
today by the provisions, with force superior to that of domestic legislation (Art.
28 of the Constitution), of international and European law.
From international law, particularly worth noting is the European Charter of
Local Self-Government (ECLSG), which was ratified by Act 1850/1989. Ac-
3
Hlepas, 2003: 225.
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cording to its provisions, indirect election can be introduced only for «execu-
tive» organs (Art. 3, III) of local government, while the «right» of local au-
thorities to «adequate resources of their own» of which they «dispose freely»
and which must be «proportionate to their competence»’ (Art. 9, I and II) is
reinforced. Nevertheless, Greece has excluded the application of the ECLSG
for second-tier local government, while reservations have been made concern-
ing Art. 5 (protection of territorial structure), Art. 7 par. 2 (sufficient allow-
ances), Art. 8 par. 2 (supervision) and Art. 10 par. 2 (local government associa-
tions).
Furthermore, it is obvious that detailed constitutional rules on local govern-
ment in Greece do not necessarily put traditional centralist patterns into ques-
tion, since state competence for important subjects of public policy (education
and health systems, environmental protection, physical planning, economic de-
velopment, etc.) is explicitly consolidated by the Constitution (e.g., in Arts. 21,
16, 24 and 106), while local government lacks taxation and regulatory autono-
my. More precisely, Art. 78 of the Constitution safeguards the so-called «taxa-
tion monopoly» of the parliament (whose plenary law defines subjects and per-
centages of and exemptions from taxation), whereas Art. 102 par. 4 imposes
correspondingly on the State the duty of ensuring the necessary resources for
local authorities. In addition, delegation of legislative power from the parlia-
ment to local government authorities is subject to the same rigid substantial and
procedural rules that were drawn up by the Constitution (Art. 43) for any «or-
gan of the executive function» (e.g., ministers, boards, etc.). This means that
the delegation of legislative power is allowed only if it happens by parliamen-
tary act and only if it refers to «special matters» or «subjects of detailed or
technical character or of local interest» (Art. 43 par. 2).
Accordingly, the case law of the Greek Conseil d’Etat (Symvoulio Epikra-
tias, the supreme administrative court) emphasizes that local government com-
petence for «local affairs» (Art. 102 par. 1, see above) refers only to single ad-
ministrative decisions and not to normative acts (local norms of general
character), which are subject to the restrictions of Art. 43 par. 2, just as they
apply to any other organ of the executive function. Furthermore, the Conseil
d’Etat rejected the delegation of new responsibilities from the state to local
government, whenever these responsibilities refer to «important sectors of pub-
lic policy», which are assigned, by the Constitution itself, exclusively to the
state (e.g., physical planning, environmental protection or the status of teachers
in public schools).
After the last constitutional amendment (2001), the new version of Art. 102
of the Constitution attempts to facilitate delegation of State responsibilities to
local authorities and declares that the exercise of certain State powers and re-
sponsibilities may be delegated to local authorities by law, provided that the
corresponding resources are also transferred (par. 1). Nevertheless, some new
attempts to delegate State competence on physical planning to local authorities
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local government in greece
faced once more the negative approach of the Council of State, which declared
that «important» State duties (such as the protection of sensitive environmental
or cultural goods) could not be transferred to local government. The back-
ground of such court decisions seems to be a fundamental mistrust of the will-
ingness of local authorities to protect the environment and/or to restrain from
partisan practices in other public policies of national interest, such as education.
Furthermore, the aforementioned case law underlined the need to safeguard
the distinctive role of de-concentrated State authorities in implementing State
policies at a sub-national scale. While in some countries it is considered un-
necessary for the government to set up field offices of its own, the prevailing
view in Greece argues that the implementation of major government policies
and their adaptation to local circumstances should be entrusted to de-concen-
trated State administration, thus safeguarding an unbroken line of unitary po-
litical responsibility and control through the central government that is trusted
by the national parliament. This is the reason why the Constitution itself (Art.
101) establishes a State administrative system based on de-concentration and
provides for the existence throughout the country of de-concentrated units, in
favour of which a presumption of competence for «peripheral» (sub-national
but not local) State affairs has been introduced (Art. 101 par. 3).
The same holds true for the territorial structure and organisational of local
government. While the 1975 version of the Constitution provided for two types
of first- tier local government (demos for the cities and koinotes for the villages),
the amendment of 2001 abolished constitutional guarantee of these types and
simply stated that two tiers of local government exist, without further specialising
what these tiers are. Furthermore, according to the prevailing views in legal sci-
ences, the law can change the limits and types of local governmental authorities
for reasons of public interest, following objective criteria. The discretionary pow-
er of ordinary law over the territorial structure and organizational form of local
government is quite broad, especially when the efficiency of existing structures is
considered poor. For this reason, the amalgamation reforms of 1998 and 2010
(see above, parts 2 and 3) did not face any serious legal difficulties.
To counteract inefficiency, the 2001 version of the Constitution included an
alternative to obligatory amalgamations and explicitly allowed the establish-
ment by law of obligatory municipal associations that could assume a series of
local governmental duties, rather than simply the provision of services or the
construction of public works, as provided by the 1975 version of the Constitu-
tion. Furthermore, the boards of these associations should consist of «elected
persons» (Art. 102 par. 3) as members, while the old version provided for the
representation of all member municipalities on the board.
State supervision over local authorities is explicitly restricted exclusively
to the control of legality; moreover it «should not impede initiative and free-
dom of action» (Art. 102 par. 4). State supervision is traditionally deemed
necessary, in order not only to endorse state unity and the harmony of law
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implementation, but also to protect civil rights from local arbitrariness and to
prevent litigation. The Constitution includes provisions for disciplinary meas-
ures against holders of political posts in local government (e.g., mayors, coun-
cillors, etc.), who can be suspended or even «deposed» (fired), provided that a
disciplinary body, whose majority of members are ordinary judges, will pre-
pare a corresponding binding opinion (Art. 102 par. 4). Supervision over local
authorities also includes a system of fiscal controls. More precisely, the Court
of Audit is entitled by the Constitution (Art. 98 par. 1) to control expenditures
as well as contracts (for cases in which these contracts refer to «high financial
cost»). In several cases, this financial auditing exceeds a simple legality check
and moves towards an advisability control. It is argued that advisability con-
trol of local government expenditure is not prohibited by the Constitution,
since to a large extent local government revenue stems from central State mon-
ey (see below).
The principal statutory laws in Greece concerning local government are the
Municipal Code (Act 3463/2006) and the so-called «Kallikrates» law (Act
3852/2010) that refers to the recent reform. A new Local Government Code
that refers to both first- and second-tier local authorities is currently being
drafted. Furthermore, the Code of Municipal Employees (Act 3584/2007), the
laws on hiring employees (Act 2190/1994 and 3812/2009), the ministerial stat-
ute on procurement (56294/2009) and the law on municipal police (Act
3731/2008), as well as the recent law on transparency (Act 3861/2010), should
be mentioned.
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Table 4
Main tasks of local government in Greece (2011)
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266
local government in greece
267
nikolaos-komninos hlepas
the chief executive officer of the municipality are the members of the executive
board, which is the governing organ of the municipality.
The municipal council has general competence and decides upon all mat-
ters apart from those which belong legally to the mayor, the executive board,
the financial committee or the quality of life committee (Art. 85 KL). Never-
theless, by a decision of the absolute majority of all the members of the mu-
nicipal council, certain of its responsibilities can be transferred to the quality
of life committee, if these responsibilities are related to the purpose of this
committee (e.g., environmental affairs). Furthermore, it is also possible to set
up special committees on which even private individuals can serve in order to
deliberate and make proposals on specific issues that are to be discussed at the
municipal council. The municipal council has a three-member praesidium
(president, vice-president, and secretary), which it elects from among its mem-
bers for a two-year term. While the president is a member of the majority, the
vice-president comes from the major opposition and the secretary from the
minor opposition. Depending upon the size of the population, the municipal
councils consist of 13-49 members, to which, however, the chairpersons of
sub-municipal councils are added in the case of municipalities resulting from
amalgamations.
Table 5
Numbers and sizes of municipal councils and committees
The sessions of the municipal councils are public, held at least once a month
and are convened by the mayor, the financial committee, the quality of life
committee, or one-third of the total number of its members. It is worth drawing
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local government in greece
The mayor represents the municipality, executes the decisions of its collegial
organs and is head of the staff and services of the municipality, which he directs
(Art. 58 KL). Of particular importance, moreover, are the duties exercised by the
mayor in function of his dual role as an organ of the state in matters related to
military conscription (registration of males), elections, registrations, etc. It is
worth noting that the mayor is not a member of the municipal council, but he is
invited to its meetings and takes part in its debates, while he may require the in-
clusion of specific matters on the agenda. In nearly all municipalities, the mayor
is assisted by deputy mayors, who deal with a particular area of the municipality’s
activities and exercise the duties of the mayor when delegated to them by him.
The mayor and the members of the municipal council are elected directly by
the registered residents (and by those citizens of the European Union or third-
country aliens who reside permanently in the municipality) for a five-year term.
Every candidate running for mayor leads a list of candidates for all the seats on
the municipal council. The law explicitly prohibits candidates who are not on
such a list from standing, as well as the use of party, religious, or ethnic sym-
bols in the emblems of the municipal lists. Nevertheless, the political parties
officially announce the names of the candidates who have their support.
The chief objective of the electoral system is to ensure governmental stabil-
ity within the municipalities. Thus, the list of candidates that wins the local
elections occupies automatically three-fifths of the seats on the municipal coun-
cils, while the runners-up are restricted to a slender two-fifths minority. Only
the list obtaining absolute majority of all the valid ballots achieves victory in
the elections, even at a second run-off between the two lists that received the
most votes in the first round. In this way lists that are supported by the most
parties are encouraged to stand in municipal elections; nevertheless, last-minute
deals, that is, between the first and second rounds, are not uncommon. It is,
however, worth noting that this electoral system, in conjunction with the fact
that the mayor, elected for a five-year term, does not need the declared confi-
dence of the majority of the municipal council, contributes to the conditions for
a «monocracy» of the mayor in the municipality, particularly in cases where he/
she has a strong personality.
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riarchs at his/her own discretion. All deputy peripheriarchs are responsible for
a certain segment of regional activities, with powers delegated to them by spe-
cial decision of the peripheriarch. It is also worth mentioning that the regional
council can constitute up to two committees and delegate to them respective
responsibilities of their own, including decision-making.
The civil service system in Greece is a career system: civil servants are re-
cruited at the lower echelons and advance through promotions at the higher
levels of bureaucracy. The current constitutional status for civil servants is also
applied to employees of local government authorities (Art. 103 par. 6 of the
Constitution). Civil servants are tenured and are obliged to maintain political
neutrality. On the whole, the formal status of the staff under local authorities,
although governed by a special code, is similar in its major aspects to that of the
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staff of the State civil service. However, the administrative units of local gov-
ernmental authorities have many unique characteristics and are usually smaller
in size.
Public sector personnel, including those in central government and its de-
concentrated units, and in self-governing corporations, are classified into dif-
ferent categories and grades. Categories are determined according to level of
education and professional and specialised skills and may require specific
qualifications. Grades and posts are not automatically linked: for example, a
grade A (a high grade) employee does not necessarily hold the post of a unit
head. Apart from seniority, a civil servant level of education and the results
of performance appraisals are important criteria for the advancement of his
career.
In addition to the established civil servants, local authorities employ people
on a contractual basis, i.e., through private legal contracts of indefinite or fixed
duration, and they can also conclude private legal contracts for specific jobs
that must be carried out (the so-called «project» contracts). Employees with
private legal contracts of fixed duration are to be recruited in order to meet
temporary, unforeseen or urgent service requirements.
For budgetary reasons, restrictive measures on the hiring of public sector
personnel were introduced at the beginning of the 1980’s; nowadays, due to the
financial crisis and IMF controls, they have been tightened even further. Up to
the beginning of this century, however, local governments were able to hire
personnel through their municipal companies or, to a certain extent, on an ap-
proved private contractual basis. For some years, municipal employees (espe-
cially the ones employed in the garbage collection service) working on a tem-
porary contract basis would go on strike in order to obtain by special law the
status of employees with private legal contracts of indefinite duration, who can
be fired only with difficulty. Through such methods, the number of municipal
personnel climbed from 25,000 employees at the beginning of the 1980’s up to
50,000 by the late 1990’s and has currently reached an astonishing 100,000
employees (including those of municipal companies). It should be pointed out
that clientelistic methods did not favour the quality of personnel: due to these
practices, many municipalities employed great numbers of people but lacked
qualified employees such as engineers, economists, accountants, public health
inspectors and computer specialists. On the other hand, second-tier local gov-
ernments hired a much smaller number of employees (fewer than 20,000), since
they lacked possibilities of contracting for such basic services as waste man-
agement, kindergartens, homes for the elderly, etc.
In view of such problems, the amended Constitution explicitly prohibits giv-
ing tenure or changing the temporary status of contracts with employees of the
public sector. On the other hand, in 1994 the selection procedures for the staff
(the «‘human resources») of local government were made subject to an inde-
pendent body, the High Council for the Selection of Personnel (or ASEP, in its
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local government in greece
Greek acronym). This independent authority oversees the selection process and
ensures respect for the principles of merit, impartiality and transparency. Now-
adays, selection takes place by competitive examination or by means of a point
system, depending on the specialties and qualifications required. Successive
laws have tightened up recruitment procedures and the system of contractual
appointments in order to prevent over-staffing and to guarantee impartiality and
merit. Recruitment procedures, however, require considerable time to be car-
ried out. For this reason, recruitment procedures have recently been de-concen-
trated, while ASEP simply supervises, ex post, the legality of these procedures.
Apart from rigid legal restrictions imposed upon hiring, local government
has practically no possibility of developing a human resource management sys-
tem of its own. Negotiations between employees and employers are organized
nationally, given that salary increases and other claims are settled at the level of
central government.
However, the mayors managed to by-pass legal restrictions and the com-
petence of ASEP regarding the hiring of personnel, mainly through their cli-
entelistic contracting practices. In fact, a presidential decree adopted by the
center-right government in 2004 allowed tenure to be granted to long-time
employees on contract, particularly when the beginning of such contracts pre-
dated the constitutional amendment of 2001, which prohibited such tenure. In
this way, approximately 40,000 contracted employees received tenure, while
only a few hundred municipal public servants had been hired during the pre-
vious decade, in keeping with the legal provisions and procedures controlled
by ASEP. The outcome was not only the virtual marginalisation of ASEP but
also, as already pointed out, the overloading of local government with thou-
sands of low-skilled personnel.
In view of the current «Kallikrates» reform and the decentralisation of
numerous tasks, it is obvious that municipalities and regions need additional
high- and/or specially-skilled personnel. Mobility across levels of govern-
ment has been encouraged or even mandated by the «Kallikrates» law. How-
ever, only a few hundred employees have been willing or forced to move to
the new municipalities and regions. In view of the acute economic crisis, the
great majority of civil and public servants is nowadays deeply frustrated and
discouraged: financial cutbacks have been focused mainly on the salaries of
public sector employees, given the large number in public employment and
its impact on the public deficit. Public sector trade unions have quite often
proved to be successful in blocking or undermining reform procedures, while
recently unions have protested vehemently against austerity policies through
numerous general strikes. Any sound implementation of the reform, and es-
pecially any internal restructuration, decentralisation of tasks and resources
and new modes of administrative operation, require great flexibility (i.e., new
tasks and mobility across levels), consensus and active cooperation of admin-
istrative personnel.
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nikolaos-komninos hlepas
4
Heinelt and Hlepas, 2006.
5
DEXIA 2008: 352.
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local government in greece
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fees for the use of works financed by loans (used to repay those loans) or loans
are little used, while second-tier local governments also generally receive little
in the way of national or E.U. grants.
For the great majority of local governmental authorities, revenues that cover
ordinary expenditures have come mainly from the Central Autonomous Funds
(CAF), that is, the share of local government in revenues of the State budget
(collected by State services). More specifically, the CAF grants have been de-
rived from:
(a) in the case of municipalities and communes:
– the income tax of natural and legal persons (20%), subject to deduction of
a third of that 20%, which is used to cover investment expenditure
– 50% of revenue from the annual vehicle road tax
– 3% of property sales tax
– 20% of revenue from the tax on bank interest.
(b) in the case of the second tier:
– 15% of revenue from the annual vehicle road tax
– 10% property sales tax on buildings, building sites and agricultural land
– 2% Added Value Tax (VAT)
– 4,5% licensing tax on passenger vehicles, trucks and buses circulating for
the first time
– taxes for carrying out technical vehicle inspections.
The CAF grants are first assigned to major spending areas and then distrib-
uted to individual local governments on the basis of population size, road net-
work and level of social services. There seem to be, however, some major distor-
tions in the use of the population criterion: the official population in some major
cities is sometimes 20-40% lower than the real one. This kind of discrepancy
seriously interferes with equalisation, an aim of the centralised funding of local
authorities. CAF grants are divided into the «Regular Grant» (RG) for operating
expenditures and the «Public Investment Specific Programme Grant» (PISPG),
which finances specific projects (see: DEXIA 2008: 357). Apart from the CAF
grants, Greek local governments also receive compensation, global investment
and earmarked grants. The latter cover expenditures in specific areas such as
transportation costs for pupils and illness and welfare support grants.
It is a fact that second-tier local authorities have depended almost com-
pletely on State grants (95% of total revenue). This has constrained the discre-
tion of elected officials over budget distribution, since about one-third of CAF
and an important proportion of other State grants are reserved for investment
expenditure. Municipalities have had far more discretion, since 32% of mu-
nicipal revenue (compared to only 3% of second-tier revenue) have stemmed
from their own fees, taxes and charges.
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Table 6
Revenue and expenditure of local government in Greece (in millions €, 2004)
Revenues
own taxes, fees, own taxes, fees,
state grants total state grants total
charges, loans charges, loans
The unprecedented financial crisis and the austerity policies imposed by the
new stability programme have enforced rigid budgetary cuts throughout the
public sector. The «Kallikrates» plan is expected to reduce the total spending of
local government by nearly 20%, mainly through reduced personnel costs. At
the same time, the «Kallikrates» law has changed the composition of State
transfers to local government. More precisely, according to this law and the
2011 budget, first-tier local governments will to receive 12% of VAT, 20% of
income tax and 50% of real estate tax, while second-tier local governments will
receive 4% of VAT and 2,4% of income tax. If all other revenues are taken into
account, in 2011 local government revenues are going to reach a sum total of
9.8 billion €, while local government expenditures are expected to drop to 9.3
billion € (according to the 2011 State budget).
Municipalities have important assets (e.g., town halls, streets, parks and
physical infrastructure). Streets, parks and squares are for public use, while
municipal commonwealth buildings (town halls, kindergartens, schools etc.)
are regarded as municipal public property with a special legal status. Many
municipalities possess considerable private property (especially real estate,
but also stock shares, etc.) which must be managed appropriately. Respective
actions (selling, buying, leasing, etc.) must be approved by the municipal
council and are subject to further substantial and procedural restrictions (ten-
dering, etc.). Second-tier local authorities do not have similar assets, apart
from provincial roads, while their property (especially real estate property) is
negligible.
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his/her part and with the consent of a five-member special council, imposes
certain penalties on them. These are, more specifically, suspension for up to
six months for a serious dereliction of their duties or the exceeding of their
competence by deliberate action or extreme negligence, and forfeiture (or
downfall: ekptosi) of office in certain cases stipulated by law (e.g., arbitrary
absence or abstention from their duties). The legislation also provides for
the penalty of dismissal «for grave reasons of public interest»; this is im-
posed, with the consent of a special council, by a decision of the minister
(Art. 237 KL).
It should be noted that all these special disciplinary councils meet in public
and are comprised of a majority (three of the five members) of regular judges,
while a representative of the Association of Local Government Corporations
serves as a member. The relevant procedure involves a defence, representation
by legal counsel and examination of witnesses. Recourse against a disciplinary
decision is possible only by appeal to the Council of State, which also judges
the case as to its substance.
6
The Greek delegation includes four mayors, two municipal councillors, four heads of re-
gions, and two councillors of regions. Source: Committee of the Regions Website: http://www.
cor.europa.eu.
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281
Chapter 12:
LOCAL GOVERNMENT IN HUNGARY
Zoltán SZENTE
After a long tradition of autonomy of the royal counties and «free royal mu-
nicipalities» rooted in the medieval ages, the idea of modern local and regional
self-government appeared in Hungary before the civic revolution of 1848,
when the feudal monarchy came to an end. Nevertheless, the first local govern-
ment laws were passed only after the so-called Compromise of 1867, which
established the dualist monarchy of Austria−Hungary and provided political
autonomy for Hungary in her inner government. Act No. XLII of 1870 founded
municipal and county self-governments with elected councils. Another act of
Parliament also recognised the self-government of communities for smaller set-
tlements.1
These pieces of legislation basically established a two-tiered system of
local government in which the municipalities, depending upon their size and
capacity, had the different legal statuses of boroughs and communities, while
county governments (63 since 1886) existed at the regional level. This dual-
level structure of local government2 was retained during the existence of
Austria−Hungary (1867-1918), gradually extending the scope of local and
regional administration and, through these organisations, the role of govern-
ment.
After World War I, the territory of the country was dismembered to a great
extent by the Peace Agreement of 1919. But, in spite of the tremendous loss of
territory, through which the number of counties was reduced from 63 to 25, the
actual borders of the remaining counties were not changed, waiting for their
1
Act No. XVIII of 1871.
2
Until 1983, in the counties, there were so-called districts (járás), which existed as admin-
istrative units of the counties covering the territory of a number of local councils. Their division
was often changed, and their numbers varied between 83 and 150 units from 1950 to 1983.
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zoltán szente
reunification. The county system was rationalised only in 1950, when the Com-
munist regime introduced a Soviet-type council system changing the borders of
the restructured 19 counties. The new arrangement of regional and local admin-
istration consisted of a highly centralised, two-and-a-half-tier system. At the
basic level, local councils possessed the general competence of public adminis-
tration. Their number was gradually reduced, as in the 1960’s and 1970’s a
great number of municipalities (usually small villages) were merged into larger
units, thereby losing their own councils.
The traditional counties, as territorial self-governments, were also trans-
formed, with the creation of the county council also modelled on the Soviet
pattern. The 19 county councils were the extended arm of central departments
at the regional level, mediating the central government’s policy towards the lo-
cal councils.
From 1950 to 1971, between the local and the county councils, approxi-
mately 140−150 so-called district councils3 (járási tanácsok) existed to per-
form specialised administrative functions. Although they also had elected
councils, the whole system could not be regarded as three-tiered, since after
1954 only the communes were subordinate to them. In 1971, the district coun-
cils were transformed into State administrative units and were deprived of their
elected councils (these offices were eventually abolished in 1983).
The basic principle of the Soviet-type local administration was that of so-
called «democratic centralism». This euphemistic phrase meant the strong
subordination of all local and regional councils to the central government. The
whole system was uniform, with the municipal and the county councils built
into a unified state administration, with no substantive local autonomy. In the-
ory, the directly-elected council was in charge of the major functions at both
the local and the county level. In practice, «council elections» were directed
by the Communist party, which informally delegated the members of the
councils.
During the period of transition to democracy, there was a wide consensus to
abolish the old, Soviet-type local councils and to establish democratic local
governments, instead. To counteract the earlier forced amalgamations of mu-
nicipalities, all communes and towns, including the smallest villages, were
given the right to establish a separate local self-government with general com-
petence. Another basic change was that the hierarchical relationship between
the local and county councils came to an end and, although the two-tiered sys-
tem was maintained, the scope of responsibility of the new county governments
was greatly reduced. The former middle-level powers and functions were trans-
ferred partly to the municipalities and partly to new public authorities organ-
3
The number of district councils had continuously decreased before their abolishment in
1971.
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local government in hungary
ized under the higher level of central government. More than 40 different State
administrative units were set up, mostly as successors of the old county admin-
istration. As a result of the constitutional revision and the fundamental changes
of 1989-90, regional and local administration doubled, producing a unified and
hierarchical sphere of State administration, along with a relatively independent
and intact system of local and county self-governments providing wide-ranging
autonomy for the local authorities.
2.1. Municipalities
4
This includes the smallest commune of the country, Tornakápolna, in which only 8 people
lived at the beginning of the present century.
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zoltán szente
Table 1
Population sizes in municipal governments (2009)
5
Gazetteer of the Republic of Hungary. Hungarian Central Statistical Office, Budapest,
2009, pp. 97−99, 228.
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local government in hungary
time, almost 60% of the total population lives in the 139 cities which have more
than 10,000 inhabitants. In administrative terms, the rank of «city» has a main-
ly symbolic importance which reflects the development of the municipality.6
Some differences in finance exist between towns and communes, but as a major
rule, they have the same range of responsibilities and similar organisational
structures.
Another type of municipalities is that of the so-called «towns with county
rights» (megyei jogú városok). These are larger cities with more than 50,000
inhabitants and which carry out, within their own territories, the tasks and
functions of the county governments. There are 23 such municipalities with
county rights.
The capital city (főváros), Budapest, with approximately 1.8 million inhab-
itants, is by far the largest city of the country. Some 70 to 80 other municipali-
ties belong to the agglomeration of the capital. Budapest has a two-tiered sys-
tem of local government consisting of the capital city government and the 23
district governments. All are seen as municipal governments with no hierarchi-
cal relationship among them.
Hungary’s 19 counties constitute the second tier of the system of local gov-
ernment. County boundaries were not changed in 1990,7 but the scope of coun-
ties’ powers was sharply reduced, in repercussion to their formerly more pow-
erful position by which, according to conventional knowledge, they oppressed
local autonomy. Since then, it has been one of the basic issues of the Hungarian
public administration to find a proper place for the administrative «middle lev-
el» in the existing system of local government, replacing (or renewing) the
«levitating counties», as they have frequently been characterised.8 The role of
the counties might be overshadowed even more, as most public authorities of
the State administration at the county level have been integrated into so-called
county government offices (megyei kormányhivatalok) since January 1, 2011.
From a regional point of view, it is apparent that local governments were
reestablished in 1990 in an unbalanced two-tiered system. 9
6
Pálné Kovács Ilona: Helyi kormányzás Magyarországon. Dialóg-Campus Kiadó, Buda-
pest−Pécs, 2008, pp. 139−140.
7
The county is to be seen as the traditional middle level of public administration, which is
often featured in political discussions as a «thousand-year-old» institution, due to the fact that,
since the foundation of the State, the country has been divided into counties (comitatus), and these
were regarded as an important constitutional guarantee for the historic Habsburg centralism.
8
Zongor Gábor: A lebegő megye. Comitatus Könyv- és Lapkiadó, Veszprém, 1994.
9
Pálné Kovács Ilona: Integráció és dezintegráció a területi közigazgatásban. In Verebélyi
Imre (szerk.): Egy évtized önkormányzati mérlege és a jövő kilátásai. Budapest, 2000. p. 90.
287
zoltán szente
Figure 1
The counties of Hungary
Table 2
Types and numbers of local authorities
19 1 23 23 304 2824
Totals: 19 3175
Source: Gazetteer of the Republic of Hungary. Hungarian Central Statistical Office, Budapest, 2009.
10
Pálné Kovács, 2008, pp. 146−147; Éva Fekete, Mihály Lados, Edit Pfeil, Zsolt Szobo-
szlai: «Size of Local Governments, Local Democracy and Local Service Delivery in Hungary».
In Pavel Swianiewicz (ed): Consolidation or Fragmentation? The Size of Local Governments in
Central and Eastern Europe. OSI/LGI, Budapest, 2002. pp. 45–47.
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local government in hungary
Although all local governments have the right to establish and maintain a
separate office, most local entities having fewer than 1,000 inhabitants do not
have such an executive office, and some smaller municipalities run a joint of-
fice, instead. Thus, at present, some 1,900 local government offices exist, of
which approximately 760 are such joint offices.
After 40 years in power, the Communist rule began to decline. Then, the
Communist Party representatives began negotiating with the major movements
and parties in the opposition the calendar and means of a peaceful transition to
democracy within the framework of the so-called «National Roundtable». At
that time, it was an essential requirement to dismiss the old Soviet system of
local and regional administration and to found in its place a new, democratic
system of local government. But its way was not predetermined by the existing
circumstances: national traditions did not provide sufficient guidelines for the
transition, nor was it evident which foreign model should be followed.
Nevertheless, when the first freely-elected Parliament passed Act No. LXV of
1990 on Local Government (the principles of the new system were incorporated
into the Constitution in October of 1989), the law reflected considerable consen-
sus among the new parliamentary parties. This consensus was, in any case, neces-
sary, as the Constitution requires a two-thirds majority to pass any legislation on
the legal status of local governments. In preparing the law, the principles and
rules of the European Charter of Local Self-government, later signed by Hungary
in 1994 and promulgated in 1997,11 were taken into account.12
Other important pieces of legislation are:
– Act No. LXIV of 1990 on the Election of Representatives and Mayors of
Local Authorities
– Act No. C of 1990 on Local Taxes
– Act No. XXXIII of 1991 on the Handover of State Assets to Local Gov-
ernments
– Act No. CXXXV of 1997 on the Associations and Cooperation of Local
Governments.
Owing to the democratic enthusiasm of 1989-90, the re-establishment of the
local government system took place in a strange way. In 1990, a new and unique
11
Act No. XV of 1997.
12
In 1994, Hungary made a stipulation to Art. 3, Section 1 of the Charter, because at that
time the county assemblies and the general assembly of the capital city were elected by indirect
voting. But the the election system was modified in the same year; thus, the Charter was
promulgated in 1997 without any stipulation.
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In relation to the powers and tasks of local authorities, the Local Govern-
ment Act is based on the concept of the general competence of local and re-
gional self-governments. It means that as a major rule, the local government
carries out all local public affairs. According to this approach, the term «local
public affairs» has a twofold significance; first, it refers to the function of local
13
Decision of 18/1993 (III.19.) of the Constitutional Court.
14
Decision of 4/1993 (III. 12.) of the Constitutional Court.
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local government in hungary
government to provide public services for the local population; second, it em-
braces the principle of local democracy, presuming that public power is exer-
cised by bodies democratically elected at the local level.
In administrative terms, local government tasks can be «mandatory» or
«voluntary». Only an act of Parliament may determine «mandatory» tasks and
duties for local authorities. Basically, the cited Local Government Act defines
the scope of responsibility of local government, but many sectoral laws also
confer tasks on municipalities. In theory, when an act may delegate a new com-
pulsory task to local authorities, it must simultaneously ensure the financial
conditions necessary to carry them out. Although the law does not specify in
what form this should be arranged, the central budget supports the fulfillment
of these tasks primarily in a «normative» way, i.e., through a block grant.
All local authorities must provide a minimum level of public services. Ac-
cording to the Local Government Act, they are obliged to ensure the follow-
ing ones:
– safe drinking water
– primary education
– basic health care
– basic social services
– public lighting
– maintenance of public roads
– public cemeteries.
These are those basic services that must be provided by all local govern-
ments, regardless of the size or other objective features of the municipalities.
Additionally, municipal governments usually carry out a number of other func-
tions, in particular local planning and development, maintenance of public
parks, protection of urban and natural environments, water drainage, mainte-
nance of public sanitation, and so on.
The «compulsory» character of tasks and functions means that the local
authorities are responsible for organising the delivery of public services, but
they are, at least in legal terms, free to choose in what manner they will comply
with this requirement. In most cases, the larger municipalities, with their great-
er financial capacities and real assets, maintain public service institutions them-
selves, while the smaller communes, which frequently do not have enough ca-
pacity to maintain a whole system of such institutions, are bound to find
alternative ways for service delivery.
The bulk of mandatory tasks are conferred on local authorities in different
ways, depending upon the size and capacity of their respective municipalities.
Typically, the larger municipalities perform many other functions, such as
housing management, public transport, waste disposal and local fire protection,
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which the smaller communes are not obligated to provide. Generally speaking,
the large cities with their greater populations participate in the management of
local energy supply and public utilities, run local public transport and maintain
specialized public service institutions.
It is to be noted that, as a consequence of the principle of general compe-
tence entrusted to local government, any local authority, even the the smallest
municipalities, has the right to assume any responsibility which is mandatory
only for larger local entities.
The Local Government Act also empowers local authorities to undertake vol-
untarily the solution of any local public affair which, under the Law, is not the
competence of any other public authority. Another condition for assuming facul-
tative tasks is that their fulfilment cannot endanger the performance of the com-
pulsory duties of the local government. The scope of non-mandatory tasks under-
taken by local authorities covers a wide range of local public affairs. The larger
municipalities are usually in the position to assume additional local functions
such as encouraging and supporting the local economy, launching local pro-
grammes for creating workplaces, promoting tourism (e.g., organising festivals),
or founding and managing institutions for their own sake (e.g., public baths).
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local government in hungary
The local governments of towns with «county rank» (megyei jogú városok,
see point 2.2. supra) perform both the functions of the municipalities and of the
corresponding county within their own territories. Notably, all county seats fall
within this category of local authorities. In most cases, these municipalities are
able to assume public services from the counties.
The capital city, Budapest, has a special legal and administrative status. It
has a two-tiered system in which the «central capital city government» and the
district governments have separate functions and tasks as defined by the Local
Government Act. All are eligible to exercise the basic rights of local govern-
ments. Budapest is divided into 23 district governments. There is a well-bal-
anced, non-hierarchical relationship between the two levels, based on their own
independent statuses and mutual interests. The division of powers and duties
between the central and the district self-governments is based on the principle
that the capital city government, within its own territory:
– fulfils those functions which belong to the county government in other
cases, as well as certain responsibilities that fall within the competence of
municipalities;
– exercises authority in local public matters which concern the whole terri-
tory of the capital city, or a part thereof which extends to more than one
district (such as the maintenance of bridges or the public transport of the
entire capital); and
– carries out various other functions which are related to the special status
and role of the capital city (as the seat of embassies or the site of national
celebrations, for example).
The municipal districts are responsible for most municipal functions, pro-
viding primary health and welfare services, social care, kindergarten and pri-
mary school education, maintenance of public roads and squares, etc.
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possible to integrate the small municipalities into larger ones. In this situation,
perceiving the extreme differences in the service-producing capacity of the
various local authorities, the central government began to encourage integra-
tion as a way of performing tasks and functions. Moreover, while general com-
petence and wide-ranging local autonomy were seen as great achievements of
the Local Government Act of 1990, to a degree they seemed to be in contrast
with the fragmentation of the existing system of local government. The great
majority of small municipalities were unable to use this freedom in practice,
since they did not have sufficient sources and capacities to provide broad-range
public services or to maintain service- delivery institutions.
Therefore, as early as the mid 1990’s, the central government began to en-
courage the establishment of joint executive offices for small municipalities.
Then, since 2004, it has preferred the so-called «differentiated distribution of
tasks and functions» by creating «multifunctional small district associations»
(többcélú kistérségi társulás) based on the statistical division of the country. In
this way, numerous responsibilities have gradually been conferred on these dis-
tricts, which are thought to be more powerful than the voluntary associations
and cooperative endeavours among local authorities. The public services which
can be provided in this way are primary education, social services, family and
child protection, local public transport, housing, water management and sew-
age, communal services and energy supply, among others. There are 173 small
district associations and they are financed by the member authorities, in propor-
tion to their population.
Another method of ensuring compulsory public services is to outsource
them to other service-providers, e.g., to State corporations, private actors, civil
organisations or churches. In some spheres the State-owned companies have a
significant role, particularly in inter-municipal public transport, public utilities
and mail services. Contribution from the private sector is only sporadic and
fluctuating. A couple of years ago, for instance, a number of local authorities
handed the management of its hospitals and other health institutions over to
private investors and companies, but this movement sparked a sharp ideologi-
cal dispute and fierce political battles. The issue as to whether or not the in-
volvement of profit-oriented organisations endangers the safety of the running
of health services was finally put to a national referendum, which subsequently
rejected the privatisation of the public hospitals and other health organisations.
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local government in hungary
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zoltán szente
tion (i.e. party) lists. Only those parties which have obtained at least 5% of the
votes cast may be elected from the compensation lists (which is the propor-
tional element of the voting system). There is no turnout condition.
It is to be noted that local elections are held in the same year as parliamen-
tary elections, usually six months later. The voter turnout rate in local govern-
ment elections is normally lower than in parliamentary elections: in 2010 it was
46.64%; in 2006, 53.12%; and in 2002, 51.11%.
The size of the representative body depends on the number of local inhabit-
ants: the smallest councils have only 3 members, while the largest representa-
tive body exists in Debrecen (the second largest city of the country), where the
council consists of 34 members plus the mayor.
Table 3
Size of representative bodies
The Local Government Act prescribes that the representative body must
hold sessions as needed, but at least six times a year. As a general rule, these
sessions are open to the public. Each representative body must hold a public
hearing at least once a year in which to inform the local population directly re-
garding municipal government policy. The mandate of the council is for four
years, but the council, with the vote of its majority, may dismiss itself before
the expiry of its tenure.
The council may set up committees (bizottságok). Local authorities may
freely determine the number and types of their own committees, although mu-
nicipalities with more than 2,000 inhabitants are obliged to establish a commit-
tee for financial control. In some cases, the committees may play an important
role, since on the basis of the council body’s decision they may decide them-
selves on certain kinds of local public matters.
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local government in hungary
Since 1994, all mayors (polgármester) have been elected directly by the lo-
cal population. He or she is the chairman of the council and as such, has full
membership on the representative body.
The mayor is the head of the local executive; he/she is not responsible for
the representative body in political terms. The mayor’s direct legitimacy puts
him/her in a very strong position, even in those cases in which there is a «co-
habitation» between the (majority of the) council and its chairman with differ-
ent party affiliations. The council may turn to court to request the mayor’s
suspension from office only if it holds that the mayor’s activity is continuously
illegal or when he/she has not complied with the obligation to declare his/her
financial interests. Another tool of the council to counterbalance a politically
undesirable mayor is to elect deputy mayor(s) among its own members. Though
the deputy mayors fulfil their duties under the direction of the mayor, their
range of authority is determined by the council. Since 2010, councils have been
allowed to appoint an additional deputy mayor, who is not a member of the
representative body but who may have some delegated powers and has the right
to participate in sessions of the council (although without the right to vote). The
position of mayor is incompatible with a number of state offices, but he/she
may be a member of Parliament.15 Since 2010, more than 20% of the members
of Parliament have been mayors, as well.
The mayor represents the municipality and directs—through the chief ad-
ministrator—the mayor’s office. The mayor has a suspensive veto right against
the decisions of the council. He/she is responsible also for state administrative
tasks delegated to him/her by law.
The chief administrator (jegyző), who is appointed for an undetermined period
by the representative body, is a key figure of the local executive as head of the
mayor’s office. He must meet professional requirements laid down by law: the
chief administrator is the foremost civil servant in each municipality. He is re-
sponsible for preparing and executing the decisions of the representative body
and performs a number of State administrative tasks and functions transferred by
law. The chief administrator is the legal «watchdog» of the local government,
with the responsibility of warning the council, its committees and the mayor if he
finds that any of their decisions has violated the law. This function sometimes
leads to a delicate situation, since the chief administrator works under the control
and direction of the mayor, and his tenure depends on the representative body.
For those municipalities of fewer than 1,000 inhabitants which are adjacent
to each other within the same county and which are unable to sustain a separate
15
Between 1990 and 1994, the mayors could not simultaneously be members of Parliament.
According to a decision of the Constitutional Court, their membership in the National Assembly
is not a constitutional issue: both incompatibility and cumul de mandats are permissible.
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office (usually because they cannot finance it or are unable to appoint and keep
a chief administrator with the required qualifications), the law allows them to
set up a joint office to perform their administrative tasks and functions. Mu-
nicipalities having between 1,000 and 2,000 inhabitants may also establish such
a joint office, while the seat of the office may be a town with more than 2,000
inhabitants. Today, about 64% of local authorities do not have a separate ex-
ecutive office, but instead belong to a joint one.
The representative body of the capital city government and of the towns
with county rank is the general assembly, but it plays the same role as the coun-
cil in the other municipalities. The general assembly of the capital city govern-
ment is composed of the chief mayor and 33 members. It is worth noting that
over the last 20 years the number of councillors has gradually decreased: from
1990 to 1994 there were 88 members of the council, whereas between 1994 and
2010, the number dropped to 66. Nevertheless, while this number was fixed by
law, the new regulation follows a different logic: the membership of the gen-
eral assembly is determined by the size of the population of the capital city,
with one councillor for every 50,000 inhabitants. All representatives are elected
through a proportional system, by which the electors may vote for party lists
applying a 5% threshold (4% until 2010). The chairman of the general assem-
bly is the chief mayor, an equivalent to the mayors of the municipalities.
The internal organisation of the county governments is basically similar to
that of the municipalities, with only some minor differences. Thus, the deliber-
ating body of the counties is the «county assembly» (közgyűlés). It is presided
by its chairman (közgyűlés elnöke), who is elected directly by the members of
the assembly (i.e., he is not elected directly by the people).
As explained above, very recent legislation passed in 2010 reduced the total
number of local representatives by more than one-third (the right-wing parties
had promised in the election campaign to halve their number). Prior to this re-
duction, local representatives had numbered 31,000-32,000.
Regarding the administrative staff of local authorities, it is to be noted that
in the early 1990’s, the Parliament accepted several codes regulating the em-
ployment status of different categories of people employed by the public sector.
Act No. XXIII of 1992 on the Legal Status of Civil Servants imposed special
rules for those employed as officials by State administrative units or local gov-
ernments. According to the relevant rules and regulations, they carry out stand-
ard administrative tasks, preparing and implementing the acts of public au-
298
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thorities. The underlying concept of the law was to create a unified civil service
for the entire public administration, offering a career path for those who under-
take a permanent and well-defined job.16
The necessary elements of the professional career for civil servants (promo-
tion system, methods of selection, etc.) were completed in the last two decades.
However, the new government formed in 2010 destroyed some of its compo-
nents, e.g., making the dismissal of civil servants easier, or capping the amount
of severance pay, etc. As a consequence of this standardisation of the civil serv-
ice system, the officials of executive offices of local authorities have the same
status as other civil servants employed by State administrative organs.
The 3,000-plus local authorities currently employ some 42,000 civil serv-
ants and 370,000 public employees.17 As a result of local governments’ right to
shape their internal organisation, there are no central limitations on the size of
the administrative staffs of executive offices. But local authorities’ permanent
lack of financial sources puts pressure on them to reduce their bureaucracy,
sometimes to an irrational level.
16
For a more detailed description, see Viktória Linder: Balancing between the Career and
Position-based Systems. Some Aspects of Recent Developments in Civil Service Legislation in
Hungary. In: Acta Juridica Hungarica, No. 2011/1.
17
Jelentés a helyi önkormányzatok gazdálkodási rendszerének 2008. évi ellenőrzéséről. Ál-
lami Számvevőszék, Budapest, 2009. augusztus. p. 9.
299
zoltán szente
18
1995 was the year of the so-called «Bokros-package», a strict economic recovery program
using financial restrictions in the whole system of the State budget.
300
local government in hungary
301
zoltán szente
Figure 2
The renevue structure of local authorities (2008)
0%
26% 16%
fees and charges
local tax revenues
11% fees and charges
7% businees-related activities
transfers
shared taxes
loans and credits
9%
18% central grants
13%
Source: Ministry of Finance.
Although the basic structure of local government finance has remained es-
sentially unchanged since 1990, certain tendencies and minor changes can be
discovered. Whereas local government finance in the early 1990’s was basi-
cally «resource-oriented», accumulating freely-spendable revenues, it has
gradually become more «task-centred», with more and more individual re-
sources targeted, that is, allocated to precisely determined aims. Another trend
has been that the rate of increase of central support has not followed the rise of
local government expenditures, which has led to financial problems for many
local authorities. The central State has not ceased in delegating more and more
tasks to local authorities, in a continuously narrowing finance: although the
share of the local government expenditure in GDP—about 12%—is relatively
high from a European perspective, in the early 1990’s this rate was as much as
15−17%, but then decreased significantly in 1995, with little change ever since.
All these factors have contributed to the rising indebtedness of local au-
thorities. This process created a precarious situation, especially for the small
municipalities. Since 1999, every year more than 1,000 of them have received
extraordinary central subsidisation to avoid bankruptcy; in 2006, a peak number
of 1,454 local authorities fell back on this support.
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local government in hungary
cal governments were established, the former State-owned local real estate, as
well as the movable assets and the stocks and shares of the local councils, be-
came the property of the municipalities. An act also transferred to local au-
thorities the property rights of the local public utilities, certain historic build-
ings and protected natural lands.
In legal terms, local government assets consist of two parts: first, the so-
called «fundamental assets», serving for the fulfilment of mandated tasks; and
second, the other assets, which can be used for profitable, commercial-type
activities in order to obtain revenues. The properties belonging to the former
category, particularly local public roads, squares and parks, cannot be alienat-
ed, charged or mortgaged. The other part of local government property, in par-
ticular former council flats, shares and bonds, are disposable with no restric-
tions, so they can be used for sale, borrowing, lease or other transactions.
Certain parts of local property, such as public service institutions, are movable
only to a limited extent.
The representative body is entitled to exercise all powers connected to the
use of local government property. In practice, the major part of immovable
property, such as flats, other buildings and agricultural lands, was sold in the
1990’s, with these revenues frequently used not for capital spending but rather
for covering operational expenditure. This is likely one of the reasons for the
great indebtness of many local authorities today, despite the generous transfer
of assets at the beginning of the 1990’s.
19
Astonishingly, after the annulment of the law on the regionalisation of the former county
offices, the Government issued a decree with almost the same content. This ordinance was re-
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conflicts in the issue, for more than a year there was no legal control over local
authorities, since the government majority, in the absence of a two-thirds ma-
jority, was not able to substitute the rule on this point. Only after the general
elections of 2010 did the new government manage to restore the original situa-
tion, when the rightist coalition gained a qualified majority. On the basis of this
support, the new coalition, integrating the State administration at the county
level, established county government offices in lieu of the earlier administra-
tive offices, but these structural transformations did not change the mechanism
and framework of the legal control of local authorities.
Legal control means only an ex post facto examination of the lawfulness of
the local decisions, without the power to annul or suspend them. Since local
authorities take roughly 1.5 million individual decisions per year, this function
entails a great amount of work. All local governments must send their decrees
and individual resolutions to the competent government office for review. If the
latter organ finds that an act or provision is illegal, it can call upon the respec-
tive local authority to terminate the violation of law, setting also a deadline for
this rectification. But such a warning is not binding for the concerned local
government. If it does not withdraw or modify the objected decision, the coun-
ty government office may turn to court to have the resolution revised; or, in the
case of local government decrees, the office may submit an appeal to the Con-
stitutional Court in order to repeal it.
On the other hand, the economic management and the spending of local
governments are supervised by the State Audit Commission (SAC). This kind
of control embraces not only the lawfulness of local government expenditure,
but also the efficiency of its financial management. Finally, local authorities are
required to conduct regular internal inspections of economic management by
their own financial committee and by a comptroller.
When the Local Government Act lays down the means for the protection of
local self-government, it refers only to certain procedures which make the rep-
resentation of institutional interests possible, rather than defending basic rights.
As a first form of protection of their rights, local authorities have the right to
petition: they are entitled to turn to the relevant public authority having proper
competence in the issue to request information or to propose that the authority
make a decision or issue a regulation.
A second form of protection of local government is the right of local au-
thorities to associate with other local governments and internal organisations
abroad. Thus, all municipal and county governments are entitled to cooperate
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local government in hungary
with other local authorities in order to promote their own interests. One of the
lasting defects of the Hungarian local government system is that, since the be-
ginning of the 1990’s, there have been seven different «national» organisations.
The reason for this proliferation was that the various types of local authorities
felt it necessary to establish separate organisations. Thus, while the county self-
governments, the towns with county rights or the communes have their own
organisations, the Association of Municipal Self-governments and the Hungar-
ian Association for Local Governments have wider ambitions, namely, to rep-
resent general local government interests. The political affiliations of the vari-
ous associations are likely to have impeded unification in the representation of
local authorities’ interests.
Local authorities’ most important leverage to protect their interests is open
to all: the right to appeal to the Constitutional Court to annul legal regulations
which are held unconstitutional. But in 2010, this option was narrowed remark-
ably when a constitutional modification curtailed the power of the Court to re-
peal the legal acts concerning budgetary issues or taxation.
20
See, for example, Barbara Lippert, Gaby Umbach, Wolfgang Wessels (2001): Europeani-
zation of CEE executives: EU membership negotiations as a shaping power. Journal of European
Public Policy, Vol. No. 6. pp. 983., 985 [arguing that post-Communist countries, like Hungary,
during and after the democratic transition had to accomplish a double or parallel adaptation,
meaning that they had to destroy their earlier structures and replace them with modern, Western-
like democratic institutions, as well as to prepare for successful integration into the E.U.].
21
Zoltán Szente: Administrative Culture in Hungary. In Thedieck, Franz (ed.): Foundations
of Administrative Culture in Europe. Nomos, Baden−Baden, 2007. pp. 111–134.
305
zoltán szente
these supports have a substantial role in the capital expenditure of local au-
thorities, they are allocated through a complicated tendering system, which is
basically influenced by the government of the day. Many municipalities are
dependent upon the central government, since they are unable to provide re-
sources of their own, as required by E.U.-funded development projects.
Another matter frequently presented as a direct impact of the E.U. on the
local government system was the regionalisation of the middle-level public ad-
ministration in order to adjust it to the alleged European patterns to absorb the
E.U. supports, to meet planning and statistical requirements, and so on. The
various claims to replace the old county structure with directly elected regions
were often promoted by referring to implicit E.U. requirements, or to unavoid-
able consequences of the Europeanization process.22 After 2006, the leftist gov-
ernment coalition plunged into a forceful regionalisation process, even if it was
not able to achieve it with respect to the local government system, since it did
not have a two-thirds majority. Since the summer of 2010, the new rightist
government has restored the former situation, declaring that the old county sys-
tem should remain an indispensable element of the entire system.
In summary, E.U.-related affairs are not on the agenda in local goverment
decision-making. There is neither closer attention to governance at the European
level nor an effective policy change, as the accession process did not require any
institutional change or other adaptation on the part of local authorities.
12.1. Bibliography
22
�������������������������������������������������������������������������������������
See, for example, Attila Ágh: Magyarország Európa-politikája: az európaizálás eredmé-
nyei és akadályai Magyarországon. In Attila Ágh, János Rózsás, Gábor Zongor: Európaizálás és
regionalizálás Magyarországon. ÖNkorPRess Kiadó, Budapest, pp. 162–167.
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local government in hungary
In English:
The Hungarian local government system is discussed in a Central European
comparative view in Hesse, Joachim-Jens (ed): Administrative Transforma-
tion in Central and Eastern Europe. Public Administration Spring/Summer
1993, Vol. 71, No. 1/2.
A more comprehensive and detailed work is: Tamás M. Horváth (ed): Decen-
tralization: Experiments and Reforms. OSI/LGI, Budapest, 2000, with a
chapter on Hungary.
Another description is Fekete Éva, Lados Mihály, Pfeil Edit, Szoboszlai
Zsolt: Size of Local Governments, Local Democracy and Local Service De-
livery in Hungary, in Swianiewicz, Pavel (ed): Consolidation or Fragmen-
tation? The Size of Local Governments in Central and Eastern Europe. OSI/
LGI, Budapest, 2002.
The Ministry of the Interior is responsible for local governments, while the
Ministry of Public Administration and Justice is for the reform of the public
sector: https://magyarorszag.hu/
The Local Government and Public Service Reform Initiative, under the aus-
pices of the Open Society Institute: http://lgi.osi.hu
307
Chapter 13:
LOCAL GOVERNMENT IN IRELAND
Yvonne SCANNELL
1.1. Introduction
The history of local government in Ireland is almost the same as the history
of local government in the United Kingdom until 1922 because Ireland was part
of the United Kingdom until then.1 The basic system of local government in
Ireland therefore is that enabled by the British Parliament in 1898.2 The Poor
Relief Act 1838 created the first Government agency with responsibility for
local affairs in Ireland. The 1838 Act covered the whole country with a network
of poor law boards whose members, called Guardians of the Poor, were made
up partly of justices and partly by members elected by ratepayers. Initially, the
boards operated under the control of Poor Law Commissioners sitting in Lon-
don, with the Irish branch office in the Custom House.3 In 1872, the Poor Law
Commission was transformed into the Local Government Board for Ireland.
The establishment of the Local Government Board followed from the increas-
ing range of duties that had extended the responsibilities formerly exercised by
the Poor Law Commissioners far beyond basic care for the poor and into areas
such as hospitals, disease eradication, medical services, sanitary services, and
housing. The Local Government (Ireland) Act 1898 transferred the powers of a
range of minor local government bodies to representatives elected as provided
for in that Act. This was the last important change in the local government sys-
tem before the State was established in 1922. It and the earlier and very impor-
tant Public Health (Ireland) Act 1878 were mirrored on similar legislation en-
acted in the UK.
1
See UK contribution in this book.
2
Alexander, «Local Government in Ireland» (1979) 27 Administration at p.7.
3
Most of the information in this page was obtained from Department of the Environment,
Heritage and Local ...http://www.environ.ie/en/AboutUs/HistoryofDepartment/History/
309
yvonne scannell
After the foundation of the State, local authorities in the 1920s and 1930s
concentrated on an expansion of the housing programme for housing the poor
and working classes, the development of other infrastructural services, an at-
tempt to introduce town planning and the provision of health and welfare
services. In 1947, health and welfare services were removed from local au-
thorities and their administration vested in the Departments of Health and
Social Welfare. Responsibility for national roads and motorways was trans-
ferred to the National Roads Authority in 1994 and a comprehensive town
and country planning system was established in 1964. After Ireland joined the
EEC in 1972, the task of implementing the vast bulk of EEC Directives relat-
ing to the environment was given to local authorities which are now the com-
petent authorities primarily concerned with implementing EU legislation. Lo-
cal authorities now implement legislation on matters such as land use
planning, waste management, water and wastewater services, building con-
trol, many roads, some educational services and public libraries, fire services
and public safety, social and affordable housing, the provision of recreational
and social amenities, aspects of protection of the built and natural heritage,
flood protection and climate change adaption and mitigation strategies. In
recent affluent years, local authorities got more involved in community de-
velopment, social inclusion, the promotion of culture and the arts although
these areas have been the first to suffer in the current recession. The Local
Government Act 2001 was the first major legislative departure from the sys-
tem of local government inherited from the British. Reform of local govern-
ment has been on the political agenda for the last 40 years and every single
Minister for Local Government has promised to do so but little has happened.
Some reforms were enacted in the Local Government Act 2001 partly to fa-
cilitate the ratification of the European Charter of Local Self-Government but
there is an almost universal recognition that the Irish system of local self
government is broken and that radical changes are needed if it is to fulfil its
functions properly.
310
local government in ireland
2.2. Regionalisation
Local authorities have a general power to act jointly with other local au-
thorities and there is a tendency for the three Dublin local authorities to cooper-
4
See below.
5
See below.
6
Note that the Planning and Development Act 2010 recently conferred more extensive pow-
ers on regional authorities to promote regional planning guidelines and climate change adapta-
tion policies. This is seen as a move to enhance the powers of regional authorities.
311
yvonne scannell
ate and coordinate with each other more than other authorities.7 The Dublin
Transport Authority established under the Dublin Transport Authority Act
2008 ensures that the Dublin authorities cooperate on a regional basis for trans-
port matters. The Authority examines all draft development plans made by lo-
cal planning authorities to ensure that they are consistent with the Authority’s
strategy for the Greater Dublin Area and with Regional Planning Guidelines.
The need for the co-ordination of roads’ programmes in multiple local author-
ity areas resulted in the setting up of the National Roads Authority in 1994.8
Two Regional Assemblies were established in 1999 under section 43 of the
Local Government Act 1991 comprising existing elected members of city and
county councils to promote the provision of public services in their areas, man-
age regional EU financial supports and monitor the general impact of EU as-
sistance programmes.9 Regional assemblies are supported by Operational Com-
mittees comprising non-elected members from prescribed public authorities
with social and economic mandates.10 Generally however, the role and func-
tions of the various Regional Authorities in local government are marginal.
7
So, for example, they cooperated in providing a wastewater treatment system for all the
Dublin authorities and on providing a new water supply system which is to convey water from
the West of Ireland to the Dublin region.
8
Roads Act 1993. See http://www.nra.ie
9
Local Government Act 1991, (Regional Authorities) (Establishement) Order 1992. SI
No.226 of 1991. Better Local Government at para 1.8. See http://www.environ.ie/en/LocalGov-
ernment/LocalGovernmentAdministration/. The existence of these Regional Assemblies is hard-
ly known to the general public.
10
Ibid., art.39.
11
Constitution of Ireland, Art. 28A; LGA 2001, s.13.
12
LGA 2001, ss. 12-20.
13
LGA 2001, 59, 60.
312
local government in ireland
Local authorities comprise directly elected members who set policies and an
executive which is responsible for the day to day running of the authority. All
the functions of local authorities must be expressly or impliedly conferred by
legislation: if they are not, they will be ultra vires. In 1956, the City and Coun-
ty Management Act 1956 reformed the administrative structure of local au-
thorities and provided for the appointment of professional managers (modelled
on the city management system in some States in the USA) to what are now
called city and county councils. The intention was to ensure that local authori-
ties were administered efficiently and to improve management structures.14 The
functions of local authorities are classified into reserved functions and execu-
tive functions. Only the elected members of local authorities can perform re-
served functions.15 Reserved functions tend to deal with policy issues or to in-
volve legislative or financial matters. Many of the reserved functions are
currently listed in various sections of the Local Government Act 2001,16 in
Schedule 14 to that Act and in other legislation conferring various functions on
local authorities.17 Examples of reserved functions are powers to determine the
policy of the local authority, to make land-use plans, to enact bye-laws,18 to
confer civic honours, to adopt the annual budget and corporate plan of the local
authority and to make an application to the Minister to change the boundaries
of the local authority area.19 All functions not specifically designated as re-
served functions in legislation are deemed to be executive functions.20 These
must be performed by the Manager or staff to whom functions are delegated
within the parameters set by the elected members.21 Many important executive
functions listed in Schedule 15 of the Local Government Act 2001 and else-
where must be performed by Manager’s order. The elected members have ex-
tensive powers to control the manner in which managerial powers are exer-
cised.22 These powers to control the county or city manager are analogous to the
powers of directors of a company. The elected members also formally appoint
14
Earlier experiments with US-type city and county managements had been carried out un-
der the Cork City Management Act 1929, the Dublin City Management Act 1930 and the Coun-
ty Management Act 1940.
15
Grange Developments Ltd v Dublin County Council (No2) [1986] IR 146. In this case the
elected members purported to transfer a power to give an undertaking to grant a planning per-
mission which contravened the development plan to the county manager. The court held that
this was ultra vires because the power to make, amend and revoke development plans is a re-
served function.
16
See LGA 2001, ss. 66,74, 75,76, 78, 85 , 116, 112, 128, 131, 134, 143, 145
17
For example, the Planning and Development Act 2000, s.19 provides that the making of a
development plan is a reserved function.
18
The Minister has power to veto bye-laws. LGA 2001s.201(4).
19
The latter power is one enshrined in Art.5 of the Charter for Local Self Government. The
booklet Local Government and the Elected Members lists 142 reserved powers. See http://www.
environ.ie/Publications/Administration/ FileDownLoad, 1960., en pdf.
20
LGA 2001, ss. 130, 149(4).
21
Ibid., s.149(6).
22
Sections 132, 134-138; 152.
313
yvonne scannell
the city or county manager (as appropriate) recommended by the Local Ap-
pointments Commission and they have power to suspend or, with Ministerial
consent, to remove him or her as provided for in the Act.23 Elected members
have power to direct city and county managers to carry out their executive func-
tions in a particular way under sections 139 and 140 of the Local Government
Act 2001. However, when elected members purported to use these powers to
direct county managers to give planning permissions for developments which
materially contravened the provisions development plans and to zone towns
without subjecting the proposed zoning to required strategic environmental im-
pact assessment procedures, the courts held that the county and city mangers
where not obliged to comply with these directions when it was unlawful to do
so.24 In general, local authorities have powers to order their own administrative
structures within the terms of the Local Government Acts 2001- 2010.
23
Sections 145, 146.
24
Wicklow County Council v. Wicklow County Manager & Ors., Unreported, High Court, Ó
Caoimh J, 26th February, 2003; Child v. Wicklow County Council [1995] 2 I.R. 447; P.J. Farrell
& Anor -v- Limerick County Council [2009] IEHC 274.
25
See Scannell, Y, «Reflections on the Catastrophic Failure of the Irish Planning System»,
2011 Dublin University Law Journal, forthcoming.
26
See Forfas Waste Management Benchmarking Reports each year from 2006-2011 illus-
trating this.
27
See Waste Management Benchmarking Report (Forfas, 2007) at p.28 states: «Waste
Costs: Of the countries benchmarked, Ireland has the highest waste management costs for non-
hazardous landfill and biological waste treatment» In fact, only 10 countries were benchmarked
but in 2006, the cost of landfilling per tonne in Ireland often exceeded €250. It was €49 in the
Netherlands and $9 in Virginia in the USA at that time. Nor has the situation changed: the Forfas
Waste Management Benchmarking Report 2010 states at p. 8: «at an average of €142 per tonne
(including the landfill levy) the advertised standard price for landfill in Ireland remains the high-
est of nine benchmarked countries/regions. It was €80 in Scotland and € 48 in New Zealand
(both comparable to Ireland) in 2010.
28
Forfas, Waste Management Benchmarking Report 2010, p.8.
314
local government in ireland
29
In Case C-492/01 [2005] ECR I‑3331, Commission v Ireland, Ireland was condemned by
the ECJ for failing to comply with its obligation to provide an integrated and adequate network
of waste disposal installations.
30
Protection of the Environment Act 2003, s.26 (2)(c ) 10AA.
31
See Delaney v Galway City and County Manager [2010] IEHC 38 where the elected mem-
bers unsuccessfully made resolutions purporting to delete a provision providing for two or three
halting sites from the travellers accommodation plan made by the county manager.
32
These are the main land use plans for every local authority area.
33
See Byrne v Fingal County Council [2001] 4 IR 565.
315
yvonne scannell
Elected members of local authorities have been content to permit the trans-
fer of their powers to levy charges for services and taxes transferred to city and
county managers. So, for example, section 13 of the Local Government (Finan-
cial Provisions) Act 1983 enables managers to set charges for certain services
provided by local authorities. Although it is most unusual in Irish law to vest a
power to levy charges in an unelected person, it was noted at the time that the
politicians and managers appeared to have reached an understanding to ensure
that politicians «would be spared... the political embarrassment of voting for
new charges.... but the council left the way open for the imposition of charges
by the managers.»34 The power to levy water charges on domestic premises was
removed by section 12 of the Local Government (Financial Provisions) Act
1997. These legislative provisions restricting or removing reserved powers and
vesting them in unelected managers were enacted to enable elected members to
avoid their democratic and representative responsibilities and to facilitate them
in giving the impression to their constituents that they have not supported un-
popular developments or new or increased taxes or charges. Effectively there-
fore, the elected members of local authorities perform those functions which
they perceive will be popular with their electorate and leave most of the diffi-
cult decisions to management.
2.7. Reforms
The DECLG is currently examining proposals for the reform of local gov-
ernment. One recent suggestion which may well be adopted (if only for budget-
ary reasons) is to reduce the number of larger local authorities from 34 to 22
and to abolish regional authorities and town councils.35
Ireland has signed and ratified the European Charter of Local Self Gov-
ernment 1985.36 The Local Government Act 2001 was enacted, inter alia, to
ratify the Charter because International Conventions do not automatically
34
Cork Examiner, 3 May 1983 quoted in Collins N., Local Government Councils at Work
(Institute of Public Administration, 2003).
35
Report of the Special Group on Public Service Numbers and Expenditure Programmes.
Prn.A9/0988(2009), Vol.2 Ch.8.
36
The Charter was signed on 7 November 1997 and ratified on 14 May 2002 largely because
the LGA 2001 met many of its required objectives.
316
local government in ireland
become part of Irish law until transposed into national legislation.37 So, al-
though the Charter was not directly incorporated into Irish law, the Local
Government Act 2001 and earlier legislation respect certain principles in the
Charter dealing, for example, with financial resources for elected members,38
changes to local authority boundaries, the right of local authorities to act
jointly and on a regional basis and requirements that disqualifications for
elected members be based on objective criteria.39 The 2001 Act also widened
the discretion and generally strengthened the position of local government
(though the powers of the elected members of local authorities have since
been eroded)40 by the introduction of a power of general competence,41 the
recognition of the representational role of local authority members,42 statu-
tory recognition of local government associations43 and a recognition of the
distinctive nature of local authority membership- all measures designed to
align the Irish system with the provisions of the Charter. Ireland has not
signed or ratified the Protocol to the Charter on the right to participate in the
affairs of a local authority.
37
See Report of the Advisory Expert Committee on Local Government Reorganisation rec-
ommending constitutional recognition of the role of local government. See also Better Local
Government at para 2.8.
38
Members of local authorities are paid a salary linked to the salary of senators under s. 142
of the LGA 2001. See Local Government (Representational Payment for Members) Regulations
2001.
39
Articles 7, 10 and 5 respectively.
40
See above.
41
S. 63.
42
S. 64.
43
Sections 128, 225.
317
yvonne scannell
44
[2004] IEHC 14. The court held that s. 13 of the LGA 2001 disqualifying a member of
parliament from being a member of a local authority was constitutional. A Constitution Review
Group and The All Party Oireachtas Committee on the Constitution had recommended that the
Constitution should contain some explicit recognition for the role of local government but the
former had also expressed some concerns about the potential impact of any new provision which
assigned definite powers to local authorities. The approach of the All Party Oireachtas Commit-
tee was similar and it recommended that the Constitution should not assign any specific functions
to local authorities, but it should recognise the general local government system and guarantee
that local elections must be held every five years.
45
The Dail is the lower house of Parliament.
46
The Oireachtas is Parliament which consists of the Dail and the Senate.
318
local government in ireland
47
J.M. Kelly: The Irish Constitution (Eds Hogan and Whyte) at 5.3.03 quoted in O’Doherty
-v- Attorney General & Ors[2009] IEHC 516.
48
Ring v Attorney: General O’Doherty -v- Attorney General & Ors [2009] IEHC 516.
49
Riordan v. Minister for the Environment, Heritage and Local Government & Ors [2004]
IEHC 89. The plaintiff alleged, inter alia, that the qualifications for electoral candidature should
have been set by an Act of Parliament, not mere regulations.
50
Note however that the Environmental Protection Agency licenses discharges from major
facilities such as those governed by EC Directives on integrated pollution control, large landfills
and incineration facilities.
319
yvonne scannell
Section 63(3) of the Local Government Act 2001 provides that «subject to
law, a local authority is independent in the exercise of its functions.» In the
past, as in the UK, it was true that local authorities could not do anything unless
it is expressly or impliedly permitted by statute.51 This was (and still is) particu-
larly the case with BE respect to the imposition of taxes and charges. Authority
to impose these must be expressly conferred.52 However, the ultra vires rule has
been extensively modified by the Local Government Act 1991 and by section
65(1) of the Local Government Act 2001 which purports to confer a power akin
to a power of general competence on local authorities.53 The latter provides :
A local authority may do anything ancillary, supplementary or incidental to
or consequential on or necessary to give full effect to, or which will facilitate or
is conducive to the performance of, a function conferred on it by this or any
other enactment or which can advantageously be performed by the authority in
conjunction with the performance of such a function.54
51
Ashbourne Holdings Ltd v An Bord Pleanala [2003] IESC 18; [2003] 2 IR 114.
52
Athlone UDC v Gavin [1985] IR 434; State (Finglas Industrial Estates) v Dublin County
Council, unreported, Supreme Court, February 17, 1983.
53
See generally, Hogan and Morgan, Administrative Law, 2010, at 224-228.
54
S. 69(4) modifies the scope of this power somewhat.
320
local government in ireland
Section 66(3)(a) of the Act further extends the powers of local authorities to
empower them, inter alia, to do «anything considered necessary or desirable to
promote the interests of the local community.» Sections 66(3)(b) and (f) give a
number of examples of what this might comprise. However, as Hogan and
Morgan state: «Despite the comprehensiveness of this statutory language, this
provision should not be taken as having removed all restrictions on local
authorities.»55 Restrictions are inherent in the statutory provisions conferring
such wide powers and arise also from section 69 of the Act which mandates
local authorities to make a rational use of their resources, to consult with other
local authorities and some other bodies and in carrying out their functions, to
have regard to Government or Ministerial polices and the need for (i) a high
standard of environmental and heritage protection (ii) the need for sustainable
development and (iii) the need to promote social inclusion. Moreover, section
69(4) expressly provides that the wide powers conferred by sections 63 to 67 do
not empower local authorities to exercise or enjoy any function prohibited by
any legislation or to do not excuse them for failure to comply with any legisla-
tive pre-condition to, or restriction on , the exercise of any function. Broadly
speaking therefore, local authorities can exercise any power or function which
is conductive to the performance of their statutory functions provided they do
not contravene an express statutory condition or prohibition.
All local authorities also have bylaw-making powers – both general («in the
interests of the common good of the local community» and for various specific
purposes.56 The general powers and functions of local authorities are specified
in a series of Acts dealing with local government but especially in the Local
Government Act 2001, as amended. Sectoral functions are conferred under a
vast amount of sectoral legislation. So, for example, air and water management
functions and waste management functions are carried out under the Air Pollu-
tion Act 1987, the Water Pollution Acts 1977-1990 and the Waste Management
Acts 1996-2010 respectively. Planning functions are exercised by local author-
ities under the Planning and Development Acts 2000-2010, fire functions under
the Fire Services Act 1981 as amended and Building Control under the Build-
ing Control Acts 1990 to 2007.57 Local authorities also have extensive public
safety functions, including protection from fire – both preventive and through
operating the fire brigades – and promoting water safety and road safety. They
are major providers of recreation and amenity infrastructure and they provide
and maintain most public parks. Their sole social function is housing. By inter-
national standards therefore, the range of Irish local authority functions is quite
narrow. They have no role in policing, in providing public transport or personal
social services and only a small (and usually not very distinguished) role in
health and education. Because of this and because of their lack of financial re-
55
Op.cit. at 225.
56
LGA 2001, Sections 199; Local Government Act 1994, s.37(1).
57
See generally, Scannell Y., Environmental and Land Use Law (Thomson, Round Hall 2006).
321
yvonne scannell
sources, even the DECLG has admitted that local authorities are unable to re-
spond to problems which transcend their traditional functions and a former
Minister has admitted that they have «tended to be by-passed by the growth of
new forms of community development organisations, many of which are at-
tracting State and EU support.»58
The state is divided for local government purposes into 29 county councils
and five city councils.59 Within these areas there are five borough corporations
and 75 town councils.60 The powers and functions of these bodies are mainly
contained in the Local Government Acts 2001 to 2010 and in other sectoral
legislation. Local authorities have powers and indeed duties in some circum-
stances to act jointly, to share services and premises and to perform functions
jointly or on behalf of each other.61The larger local authorities (county and city
councils) are the designated water, waste management, housing, building con-
trol and roads authorities for their respective jurisdictions under various Acts of
Parliament whereas some limited functions and planning and development con-
trols are exercised by borough corporations and town councils. Morgenroth has
commented that compared with over 100 other countries the number of re-
gional and local organisations is very limited.62. The largest city council (Dub-
lin) has a population of a little over 0.5 million while the smallest county coun-
cil has a population of about 30,000 (Leitrim). The largest town council (Bray)
has a population of 27,041 whereas the smallest (Ballybay) has a population of
401. The numerical membership of local authorities is set out in the Seventh
Schedule to the Local Government Act 2001 and is limited by section 12 of the
Local Government Act 2001. It ranges from 52 members in Dublin City Coun-
cil to 9 for town councils. City and county councils may request the Minister to
alter their membership in certain circumstances and town councils may request
the Minister to increase their membership from 9 to 12 when their population
exceeds 15,000 in the last census.63.
58
Better Local Government (1996) at para 1.7
59
LGA, s.10 (1) & (2).
60
This structure is a modified version of the structure set up under the Local Government Act
1898.
61
LGA , s. 71, 85. 86.
62
Op.cit at p.3. Morgenroth states that: the German Federal State of Rheinland-Pfalz (popu-
lation of 4 million) has no less than 2,344 «governments». Other examples of jurisdictions with
more sub-national government include the US State of Colorado (population around 4 million),
which has 352 governments. The Netherlands (population of about 15 million) has 12 provinces
and 548 municipalities and Denmark (population 5.3 million) has 14 counties and 275 munici-
palities.
63
Ss.21, 22 and Seventh Schedule setting out the numbers of elected members for each local
authority.
322
local government in ireland
64
Local Government Act 1991, s.34.
65
See LGA 2001 (Meetings ) Regulations 2001, SI No. 66of 2002.
66
Ibid. s. 45.
67
Annual Report South Dublin County Council 2008 at 13-17.
68
Thus, as Hogan and Morgan quoting Callanan state: «in theory, SPCs enhance local de-
mocracy by in the first place permitting local interest groups to participate in local governance
and secondly, allowing councillors to develop their expertise and therefore play a more proac-
tive role in the formulation of policy». Hogan and Morgan, Administrative Law (4th ed), (Thom-
son Reuters Round Hall) 2010 at 209 quoting Callanan, «Institutionalising Participation and
Governance? New Participative Structures in Local Government in Ireland» (2005) 83 Public
Administration 909 at p.916.
323
yvonne scannell
The CPG coordinates the work of the various SPCs and tries to agree policy
positions before they are presented to the full council. It is analogous to the
Cabinet. The major function of the CPG is to prepare the corporate plan for the
county or city in consultation with the county or city manager. The Association
of County & City Councils is a representative association and networking or-
ganisation for the councillors who form the elected councils of the 34 county
and city councils. It organises meetings to discuss issues of interest to local
elected members. The Association also lobbies central government on new
policy and legislation relevant to councillors’ activities. It does not have any
co-ordinating or supervisory role.
There are 33,889 local authority staff with an estimated pay of €1,900 mil-
lion in 2008. Staff are employed in clerical and administration positions, pro-
fessional, craft and technical, library service, fire service, IT, Finance and Gen-
eral as well as in community, arts and leisure. The Local Government
Management Services Board (LGMSB) produces an annual report on service
indicators in local authorities. The indicators measure performance by local
authorities across a range of functions including housing, planning, environ-
mental services and recreational facilities. Currently, 46 indicators are meas-
ured.69 The senior and professional staff in local authorities are recruited by the
Commission for Public Service Appointments, an independent administrative
body established by the Public Service Management (Recruitment and Ap-
pointments) Act 2004. It is bound by law to ensure that the recruitment and
selection of local authority staff is carried fairly, openly and on the basis of
merit. County and City Managers are recruited by the Commission, which is
required by law to recommend either one or two people for the post. In practice,
it recommends only one person.
The manager is formally appointed by the elected members of the local au-
thority. He or she can also be suspended or dismissed by resolution of the elect-
ed members although Ministerial consent is required to dismiss. Other staff are
normally recruited by the local authorities themselves under the guidance of the
Commission for Public Service Appointments issued under section 158 of the
Local Government Act 2001. The county or city manager is responsible for
staffing and organisational arrangements.70Staff enjoy very good conditions –
often better than those in the general civil service.71 Once in the system, promo-
69
These Reports can be viewed on the LGMSB website: http://www.lgmsb.ie/Service_Indi-
cators_Reports.aspx
70
LGA, s. 159.
71
Some senior managers in local authorities can have up to 43 days annual holidays in addi-
tion to public holidays. Irish Times, 6 April 2011.
324
local government in ireland
Local authorities play a significant role in the economy where they are
responsible for expenditure of some €12 billion annually(€7 billion of
which is capital investment mainly on housing and water supplies, with the
balance of €5 billion devoted to financing current expenditure). In relative
terms, this represents the equivalent of over 6% of the country’s GDP. The
Local Government (Financial Provisions) (No.2) Act 1983 extended the
power of local authorities to charge for certain services such as water sup-
plies and waste collection. The Local Government (Financial Provisions)
Act 1997 abolished service charges and rates support grants but allocated the
proceeds of motor taxation to local authorities. The Local Government Act
1998 established the Local Government Fund, currently the major source of
local authority finance. This consists of the proceeds of motor taxation and
funds allocated by central government. The Local Government (Charges)
Act 2009 levied a tax (currently €200) on all dwellings other than principal
private residences.
All local authorities must prepare a budget and financial plans and state-
ments every year.72 Matters relating to financial procedures and audits in local
government are mainly prescribed in Part 10 of the Local Government Act
2001. Trends in local government finances are monitored annually in the Re-
turns of Local Taxation/Local Authority Estimates compiled by the DECLG.
Capital expenditure is financed largely by State Grants, including the National
Roads Authority, development levies, borrowings and own internal resources
and property sales – mainly sales of housing to local authority tenants. A break-
down of current expenditure and receipts by the local authorities is shown in the
following Table.
72
LGA 2001, ss. 103, 107, 108.
325
yvonne scannell
Table 1
Local Authority Current Expenditure Revenue (€billion)
2000 2001 2002 2003 2004 2005 2005 2007
Expenditure 2.4 2.8 3.1 3.2 3.6 3.8 4.2 4.8
Financed by:
Government Grants 0.6 0.8 0.9 0.9 0.9 1.0 1.1 1.1
Local Government Fund 0.5 0.5 0.6 0.6 0.8 0.8 0.9 0.9
Goods/Services 0.7 0.8 0.9 1.0 1.2 1.2 1.2 1.5
Commercial Rates 0.6 0.7 0.8 0.8 0.9 1.0 1.2 1.2
Total Receipts 2.5 2.7 3.1 3.4 3.8 4.0 4.5 4.7
Commercial Rates are one of the two kinds of property taxes levied by local
authorities. Rates are levied annually by the authorities who have exclusive rat-
ing jurisdiction within their own areas. As a general rule, rates are levied on the
occupiers of commercial and industrial properties.73 There are no rates on do-
mestic dwellings. The valuation off property for rating purposes is carried out
by a central government agency, the Valuation Office, with a right of appeal to
a Valuation Tribunal. Each year the level of the rate (known as the Annual Rate
on Valuation or ARV) is determined by the elected council as part of the budg-
etary process. The annual rates bill for commercial rates collected by the Local
Authorities had been increasing until 2009 when it amounted to over € I billion
per annum. The only other property taxes are taxes (currently €200 per annum)
on second homes levied under the Local Government (Charges) Act 2009.
These grants are paid by the Central Government to local authorities for
specific services and /schemes that they undertake on behalf of a range of Gov-
73
Rates as a proportion of local authorities income reached a peak of over 30% in the late
1970s, but has fallen back since then following the abolition of rates on domestic premises.
326
local government in ireland
ernment Departments. Examples of these grants that are reflected in Local Au-
thorities’ current (revenue) accounts are non-national road grants from the LGF
and third- level grants provided by the Department of Education and Science.
Local authorities have powers to charge for services they provide, for exam-
ple, commercial water charges, housing rents, waste charges, parking charges,
and planning application fees. In many cases the charge or fee is set locally al-
though certain charges or fees are fixed at national level. In all cases, there must
be express statutory authority for raising charges and levying taxes.
The Local Government Fund (LGF) is the main source of funding for local
authority activities. It is a special central fund financed by the proceeds of mo-
tor tax and an Exchequer contribution (€520m in 2009). The Fund was set up
under the Local Government Act 1998 as a ring-fenced source of funding for
local government. It is the principal Exchequer contribution to the day-to-day
funding of local government services. Total income of €1,500m was received
in 2007, of which Motor Tax Income was €957m, Exchequer Funding €537m
and Bank Interest €3.5m.The General Purposes Grants are funded from the
Local Government Fund and these provide local authorities with the finance for
general discretionary funding of their day-to-day activities, for non-national
roads, and for certain local government initiatives. The Fund’s contribution
dropped from 26% of local authority receipts in 2000 to approximately 20% of
their receipts in 2007. However, the Financial Emergencies in the Public Inter-
est Act 2009 –enacted in response to the crisis in the public finances– has fur-
ther reduced local authority funding. Section 4 of the 1998 Act had specified a
Local Government Fund which was to comprise the income from motor tax
plus a Government contribution of €270 million to be increased annually by at
least the Consumer Price Index. The 2009 Act deletes this specification for the
Government contribution and replaces it simply with whatever amount of fund-
ing is agreed each year by the Minister for the Environment with the Minister
for Finance. In other words the base amount and formula set up by the 1998 Act
is now redundant and the Local Government Fund will essentially be funded by
whatever amount the Exchequer can bear.74
The Fund is used primarily to provide:
– General Purpose Grants €948m in 2007;
74
See http://www.oireachtas.ie/documents/bills28/acts/2009/a0509.pdf.
327
yvonne scannell
Table2
Local Authority Budgets 2010 (€million)
The establishment of this Fund is provided for under the Waste Management
(Amendment) Act 2001. It is managed and controlled by the Minister for the
ECLG. Revenues from the levies on plastic shopping bags and the landfill of waste
are paid into the Fund and interest accrues on an annual basis. The Fund is used for
a range of purposes as prescribed in the Act and for such other purposes relating to
the protection of the environment, as may be prescribed by the Minister for ECLG.
Currently it is used to fund on-going expenditure such as Environmental Protec-
328
local government in ireland
Table 3
Environment Fund, Income and Expenditure (€million)
2009
2002 2003 2004 2005 2006 2007 2008
(est.)
A local authority is a corporation sole. It may own, buy, sell or inherit prop-
erty. It may enter into a contract with any person in respect of any matter relat-
ing to its functions.75 It may enter into such contracts and make such other ar-
rangements (including the incorporation of one or more than one company) as
the authority considers necessary or expedient either alone or jointly with any
other local authority or public authority or any other person.76
On the other hand, a local authority may accept gifts of money, land or
other property on the trusts or conditions (if any) as may be specified by the
donor under section 228 of the Local Government Act 2001 unless this would
be inconsistent with, or prejudice, the effective performance of its functions.
Local authorities have extensive powers to purchase or lease lands by compul-
sory acquisition. There is no special regime for local authority property. Local
authorities own many types of property including houses, offices, public parks,
schools, recreational amenities.
75
LGA, s.229.
76
LGA 2001, s.66 (4)(i).
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yvonne scannell
A judicial review is the appropriate remedy if the local authority exceeds the
powers granted to it by statute although sometimes a complainant is expected
to exhaust his or her administrative law remedies first if statutory provision has
been made for an administrative appeal. An attempt to define the grounds upon
which judicial review to challenge administrative decisions is available was
made by Lord Radcliffe in Smith v East Elloe RDC77 as follows: «Of course, it
is well known that Courts of law have always exercised a certain authority to
restrain the abuse of statutory powers (…). Probably most of the recognised
grounds for invalidity could be brought under this head: the introduction of il-
legitimate considerations, the rejection of legitimates ones, manifest unreason-
ableness, arbitrary or capricious conduct, the motive of personal advantage or
the gratification of personal ill‑will».
This case has been followed in a number of Irish cases. To the list of grounds
for judicial review in Smith, one can add that the exercise of a discretion which
is not in accordance with the constitutional requirements of fairness and with
respect for constitutional rights or which violates EU law will also be ultra
vires.78 In general, courts will not examine the merits of decisions in a judicial
review. They are particularly reluctant to question decisions made by the elect-
ed members of local authorities because of respect for the principles of the
separation of powers and representative democracy. In 1997, in the case of
Malahide Community Council Limited v. Fingal County Council,79 Lynch J.
said in the Supreme Court: «Any court must be very slow to interfere with the
democratic decision of the local elected representatives entrusted with making
such decisions by the legislature.»
In recent years, however the requirement to comply with provisions in Di-
rective 2003/35/EC on public participation in plans and programmes on the
environment and Article 9 of the Aarhus Convention have somewhat mitigated
the reluctance of the courts to interfere with the substantive merits of local au-
thority decisions on many environmental matters involving EU law and the
reasonableness standard of judicial review has been somewhat augmented par-
ticularly when human rights and EU law are involved.80
The question of locus standi to challenge decisions deserves to be analysed
shortly. Until recently, the only requirement for standing to initiate a judicial
77
[1956] A.C. 736 at 767. Approved by Ó Dálaigh CJ in Listowel v McDonagh [1968] I.R.
312 at 317.
78
Haverty v An Bord Pleanála [1987] I.R. 485; [1988] I.L.R.M. 545. On EU law, see Ab-
beydrive Development Ltd v Kildare County Council [2010] IESC 8 holding that it was illegal for
a county council to give planning permission in default (i.e planning permission where the coun-
cil had not made a decision within the statutory time limits) in a case where a project was subject
to environmental impact assessment.
79
[1997] 3 I.R. 383, at 398.
80
See Hogan and Morgan, Administrative Law (4th ed.) (Thomson Round Hall) (2010) at
15-01 – 15-201.
330
local government in ireland
review was that the applicant should have a «sufficient» interest in the matter.
This was interpreted very generously and there are examples of permissions for
very important projects being challenged by unemployed actors, telephonists,
eco-warriors and others unable to pay the legal costs when their arguments
failed. Indeed, standing was so wide that the courts held that a company incor-
porated partly to avoid paying costs after the decision it challenged was made
had standing to challenge a planning decision81. Decisions relating to air and
water pollution licences, on planning permissions and on waste permits can be
appealed by any person or Non Governmental Organisation even if the latter is
not incorporated. In recent years locus standi to challenge planning and waste
decisions by way of judicial review has been narrowed somewhat and section
50 of the Planning and Development Act 2000 now provides that persons chal-
lenging these must have a «substantial» interest in the matter and «substantial»
grounds for challenging the decision.82
In general, it can be said that Irish legislation respects the principle in Arti-
cle 4(4) of the Charter on Local Self Government, requiring that local authority
powers «may not be undermined by another, central or regional, authority ex-
cept as provided for by law» but that legislation does provide for certain legal
and administrative controls over local authority functions. No administrative
authority has powers to question how local authorities exercise their functions
except the EPA and the Ombudsman. These powers are discussed below.
81
Lancefort Ltd v An Bord Pleanala [1992] 2 Irish Reports 270.
82
See Harding v Cork County Council (No.2) [2008] IESC 27; [2008] 2 ILRM 8.
83
See Annual Reports of An Bord Pleanala at http://www.pleanala.ie/
331
yvonne scannell
review of a planning decision unless there are exculpatory reasons. NGO’s also
can exercise these rights to make an administrative appeals and one NGO, An
Taisce (the National Trust) is especially privileged. It is entitled to be notified
of certain planning applications (including any where EIA is involved) and to
avail of a reduction in the normal participatory fees for participating in decision
– making. In 2009, the Planning Appeals Board varied 38.5% of all local au-
thority planning decisions appealed to it and refused planning permission in
33.5% of all planning decisions appealed to it.
A person making an appeal against decisions of local authorities to the Plan-
ning Appeals Board can question both the substantive and procedural merits of
decisions taken by local planning authorities although the courts have recently
held that these administrative appeals are not the appeals against the «substan-
tive and procedural merits of decisions» envisaged in Directive 2003/35/EEC
on public participation and access to justice on environmental matters.
As Hogan and Morgan state: «local authorities are subject to extensive and
diverse controls exercised by the Minister for the Environment»84 The most
important control is financial because the Minister provides most of their fi-
nance. The Minister has power to remove members of local authorities from
office on a number of specific grounds stated in section 216 of the 2001 Act and
to appoint a Commissioner to act as a local authority.85 He has power under
much local government legislation to exercise certain supervisory and adminis-
trative controls over local authorities. The Minister’s powers depend upon the
legislation governing the particular local government function being exercised.
So, for example, where local authorities are exercising their planning functions,
the Minister may at any time issue guidelines to them in respect of their func-
tions under the Act and planning authorities must «have regard» to these guide-
lines in the performance of their functions.86 In the interests of transparency,
guidelines must be published by the Minister, must be laid before each house of
the Oireachtas, and must be made available for public inspection.87 Similar pro-
vision is made in respect of ministerial policy directives which the Minister
may issue to planning authorities under section 29 of the Planning and Devel-
opment Act 2000 regarding any of their functions under the Act and which
planning authorities must comply with. In practice, guidelines and policy direc-
tives are published widely and are available on the Internet.88 Section 30 of that
84
Op.cit., at p.278.
85
LGA 2001, s.218.
86
McEvoy v Meath County Council [2003]IEHC 31; [2003] 1IR 208.
87
Planning and Development Act 2000, ss.28(6), (7),(5),(2).
88
For a list of significant recent ministerial guidelines see: http://www.environ.ie
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local government in ireland
Act prohibits the Minister from exercising any power or control in relation to a
specific case with which a planning authority is or may be concerned although
special provision is made to enable her to perform functions transferred from
the Minister for Community and Rural Affairs.89
The Minister also has power to ensure that development plans are properly
integrated with other plans and she may, if she considers that a development
plan fails to set out an overall strategy for the proper planning and sustainable
development of the area, or fails significantly to comply with the Act, for stated
reasons, require the planning authority to take specified measures or to review
or vary the development plan to ensure compliance with the Act. The planning
authority must comply with these directions.90 The Minister may order a plan-
ning authority to comply with Regional Planning Guidelines when drafting a
development plan or to comply with them by varying an existing development
plan.91
As stated above, the powers of regional authorities powers over local au-
thorities are anaemic at best, consisting mostly of powers to encourage and re-
quire them to co-operate and co-ordinate. However, because of the catastrophic
failure of the planning system to prevent the oversupply of houses, hotels and
commercial properties in the years 2003–2008, the Planning and Development
Act 2010 provided for procedural requirements which enhance the powers of
Regional Authorities and the Minister to require local authorities to comply
with Government and regional land use and climate change policies.
The case of the Environmental Protection Agency (EPA) supervision of
environmental management functions deserves specific attention. The Envi-
ronmental Protection Agency Acts 1992–2010 confer certain powers on the
89
S. 30(2) inserted by the Minister for he Environment and Local Government (Performance
of Certain Functions) Act 2002.
90
Planning and Development Act 2000, s.31(2).
91
Ibid., s.27(2).
333
yvonne scannell
EPA over the way local authorities perform their statutory environmental
protection functions. In particular, the Protection of the Environment Act
2003 increased and fortified the EPA’s powers to ensure that local authori-
ties implement environmental legislation properly. The supervisory and en-
forcement functions of the EPA may have been introduced to ensure that
Ireland complies with EU Directives on environmental law. Under s.56 of
the Environmental Protection Agency Act 1992, the EPA may, on its own
initiative, and must if requested by the Minister, give information or advice
or make recommendations for the purposes of environmental protection to
an individual local authority or to local authorities generally in relation to
the performance of their statutory environmental functions. Local authorities
are obliged to have regard to the EPA’s communications. The EPA has spe-
cific powers in relation to drinking water, landfill sites and urban wastewater
treatment.
The EPA has power under section 63(1) to request a local authority to
provide it with information within a specified period in relation to its per-
formance of a specific or general statutory environmental protection function.
The local authority is obliged to comply with this request. Under section
63(2) the EPA may notify a local authority of its intention to carry out an as-
sessment of the local authority’s environmental protection functions (either
its general functions or its functions in a specific case). Having exercised the
above powers and having considered any information obtained during the as-
sessment process, the EPA may take all or any of the following measures
under section 63(3):
(a) issue such advice and recommendations as it considers necessary;
(b) provide, on agreed terms and conditions, such assistance, support or
guidance as it considers, in consultation with the local authority, would
be helpful; and
(c) without prejudice to its other powers under the Act or other enactments,
issue a proposed direction requiring the local authority within a speci-
fied period to carry out, cause to be carried out or arrange for, such ac-
tion in relation to the function in question as the EPA considers neces-
sary for the purposes of environmental protection.
The local authority has then got a specified period to make observations in
relation to the proposed direction. After that period, and having considered the
observations, the EPA may confirm the proposed direction with or without
modification or decide not to confirm it. If it confirms the direction and issues
it to the local authority under section 63(5), the latter must comply with it with-
in a specified period. A local authority will be guilty of an offence under sec-
tion63(8) if it fails to comply with a request under section63(1) or (2), or with
a direction under section63(5) or (6). Individual officers of a local authority
may be liable for the same offence under section 8(2) because local authorities
334
local government in ireland
are bodies corporate under section 11(7) of the Local Government Act 2001
unless they can avail of statutory immunities. The EPA or any person can bring
summary prosecutions. The Minister has extended the EPA’s powers under
sections 100, 101 and 102 of the Act to enable it to enforce water and air pollu-
tion and waste management controls against local authorities.92
The LGAS (established under the Local Government Act 2001 and based in
the DECLG) audits 186 local bodies such as city, county, borough and town
councils, regional authorities and assemblies and some other miscellaneous
bodies. It is independent in the performance of its functions. The LGAS pro-
vides independent scrutiny of the financial stewardship of local authorities. It
audits accounts in accordance with a Code of Audit Practice and carries out
Value for Money (VFM) audits.93 Local authority staff and elected members
have a statutory duty to co-operate with the LGAS. An auditor may disallow
illegal or unfounded payments, surcharge such payments on the persons re-
sponsible whether on members or the manager, and charge the person the
amount of any loss or deficiency incurred through misconduct or negligence.
The manager must submit both the audited accounts and the auditor’s report for
consideration by the elected council.
92
See Scannell Y., Environmental and Land Use Law, (Thomson Round Hall) (2006) at
981-997 on the EPA’s enforcement powers against local authorities.
93
See http://www.environ.ie/en/Publications/LocalGovernment/AuditService/#d.en.24147.
94
Local Government Ireland Act, 1872, s.12, LGA 2001, s.112; Local Government (Ireland)
Act 1902,s.20. See Hogan and Morgan, op.cit., at 232-233.
95
Op.cit. at p.231.
335
yvonne scannell
The Value for Money audit unit of the LGAS published 24 VFM reports,
guides and handbooks to date. During 2009 the Unit broadened its sphere of
activity by carrying out review and spot-checks, on behalf of the Department,
of capital projects undertaken by local authorities in accordance with Depart-
ment of Finance guidelines. A copy of the audited financial statement and any
associated statutory audit report must be given to every member of the local
authority for consideration. Where appropriate, the implementation of the rec-
ommendations contained in the reports is monitored at the annual audit of the
individual local authority’s annual financial statements.
96
http://www.iro.ie/regional_assemblies.html
336
local government in ireland
Hogan and Morgan, Administrative Law (4th ed), (Thomson Reuters Round
Hall) 2010.
Scannell, Y.: Environmental and Land Use Law (Thomson Round Hall) 2006.
Simons, G.: Planning and Development Law (Thomson Round Hall) 2006.
Butler, P.: Keane on Local Government (2nd ed) (Bloomsbury Professional)
2003.
337
Chapter 14:
LOCAL GOVERNMENT IN ITALY
Luciano VANDELLI
The Italian local system is rooted in the ideas of the 1798 French Revolution
and, specifically, in that of «Pouvoir municipal». In this context, the figure of
the «prefect» (prefetto), with its strong Napoleonic influence, was pivotal in
making the «revolutionary whirlwind» a «regular mechanism». The model was
incorporated in the process of administrative «colonization»of power, and firm-
ly adhered to by Italian patriots, particularly in the Piedmont region, which was
ruled by the Savoias, and with Italian Unification (1861) and the administrative
Unification Laws (1865) that extended throughout the territory of the new state.
Historically, the system is based on the following key elements:
(a) Generalization of the municipal system rather than the system based on
acquired or conceded privileges, that extended throughout the state ter-
ritory before Unification.
(b) Institution of a municipality for every territorial community, regardless
of its size. In Italy, the division of the territory into municipalities was
the result of pre-existing demands and administrative traditions, that
had already led to widespread territorial fragmentation. At the time of
the Unification, there were 7,720 municipalities, which is similar to the
current number of 8,096. More than 50% of these municipalities have
populations of fewer than 3,000 inhabitants (768 have less than 500).
(c) Uniformity of the municipal system, generated by the implementation of
uniform rules for all municipalities, regardless of their dimensions. Italy
opted for the French-Piedmontese system of juridical uniformity, as
stated in key administrative legislation enacted during the national Uni-
fication (Law No. 2248 of 20 March 1865), instead of the Austrian
model of differentiation;
(d) Adoption of an electoral system for local authorities, particularly, for
the city Council, as an essential characteristic of local democracy;
339
luciano vandelli
340
local government in italy
years later, Act No. 81, 1993, introduced the direct election of the mayor and
the president of the provinces.
In 2000, these reforms were consolidated in a new act (hereinafter, «the
Consolidated Act»). This legal amalgamation was followed by the amendment
of Title V of the Constitution, pertaining to autonomies. These constitutional
amendments, however, are still pending a full incorporation into legislation.
During the summer of 2011 several legislative proposals for the reorganisa-
tion and reduction in the number of municipalities and provinces took place.1
However, their final concretization and their date of effectiveness are still
murky at the time of writing this contribution.
2.1. Municipalities
1
The proposal, embodied in a Decree of 11 August, 2011, envisaged a dramatic reduction of
local authorities in the country: (a) the elimination of all provinces having less than 300.000 inhab-
itants, 36 out of 110; (b) the obligatory fusion-merger of all municipilaties having less than 1000
inhabitants, whose number amounts to 1,970 local entities (editor’s note).
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luciano vandelli
2.2. Provinces
342
local government in italy
343
luciano vandelli
3.3. Allocation of legislative powers between the State and the regions
344
local government in italy
– Legislative Decree No. 112 of 31March 1988, which confers the functions
and administrative duties of the State to the regions and local authorities.
According to the Italian Constitution (letter (p), art.117, par. 2), the State has
exclusive legislative power to regulate the «fundamental functions of munici-
palities, provinces and metropolitan towns» (funzioni fondamentali di Comuni,
Province e Città metropolitane). There is no specific statute on the matter, but
the Act No. 42 of 2009 (the law on fiscal federalism) gives an idea as to some
fundamental functions. This law provisionally identifies the fundamental func-
tions of municipalities as «the ability to implement the said law... once it is ef-
fective». This involves two sets of activities: general functions, pertinent to all
authorities, and specific activities that will correspond individually to each au-
thority. For example, under this Act municipalities will be responsible for local
police, public education (including day nursery), road networks and transporta-
tion, territory and environment (except integrated urban water management,
among others), and social services. The provinces will handle public education
(including school housing), transportation, land management, environmental
conservation, and some labour and job market issues.
A bill, which is currently in Parliament (Italian Senate No.2259), also ad-
dresses the functions of local government and offers a more detailed list of ac-
tions. Municipalities will have the following specific functions, among others:
coordination of commercial activities and of premises; simplification of paper-
work for businesses; tax inventory and assessment of real property; housing;
city planning and municipal building codes; civil defence; local road networks
and traffic regulations; transportation; social services, etc.
For what concerns Provinces, they will be responsible for the following
matters, among others: the coordination of provincial territorial planning; soil
protection; environmental protection, including controls on efficient water use
and emissions; planning of provincial waste disposal; conservation and man-
agement of fish and game; transportation, etc.
Therefore, at present there are two lists of «fundamental functions» for local
authorities: one established in Law No. 42 and a forthcoming one, established
in the aforementioned bill. Initially, it was thought that the list included in Law
No. 42 would be in effect for five years (art. 21, par. 1, lttr. e) but this rule has
been modified by Decree-Law No. 78 of 2010 (validated by Law No. 122, of
30 June 2010), which also makes it obligatory for smaller municipalities to
carry out «fundamental functions» through conventions or unions of munici-
palities (see infra.).
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luciano vandelli
Once State legislation was in place, two decrees were passed that set the
framework for delegating competences among municipalities and provinces:
Decree No. 616 (1977) and Decree No. 112 (1998). The areas in which func-
tions were granted to local authorities included agriculture and forestry, crafts-
manship, industry, energy, mines and geothermal resources, fairs, markets and
trade, tourism and the hotel industry. Some of these areas pertain only to re-
gional jurisdiction (agriculture, craftsmanship, tourism), while others are «con-
curring» competences (competenze concorrenti): this happens in matters such
as occupational health and safety, professions, support of innovation in produc-
tion, transportation and the national distribution of energy.
Functions associated with territory, environment and infrastructure include
city planning and environment (parks and natural reserves, control of atmos-
pheric pollution generated by heating and traffic in urban areas, and noise pol-
lution) and, in provinces, water pollution monitoring, waste disposal sites and
waste transformation plants, and waste disposal. As for infrastructure, compe-
tences include road networks, waterworks and public works, transportation and
traffic regulation, civil defence, tax inventory and assessment of real property.
Local authorities have also to provide community services relating to local po-
lice, health, social services, assistance, school education, vocational training,
school assistance, cultural activities, museums and libraries.
Local authorities play a key role in economically significant services such as
water supply, waste disposal, gas and energy. Although European Union regu-
lations permit private companies to manage public services through public bid-
ding procedures, local authorities are still responsible for the organization and
scope of the services, regulations and tariffs.
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local government in italy
The city and provincial councils are composed of several members, whose
number varies according to the demographic dimensions of the authority. Be-
fore the cutbacks set by the 1993 law, councils had up to 80 members, but now
the number fluctuates between 60 (for municipalities with less than 1,000,000
inhabitants) and 12, including the mayor, who is a councillor (for municipali-
ties with less than 3,000 inhabitants). As of the 2011 elections, the number was
further reduced in 20%, so now the councils of the largest municipalities vary
from 48-60 members, while the smallest municipalities will have 10. The min-
imum and maximum number of members for the provincial council varies from
45 members for populations higher than 1,400,000 inhabitants, and 24 when
the province has less than 300,000 inhabitants.
347
luciano vandelli
348
local government in italy
tion and controls, etc.) is generally contained in the general laws and regulations
on local government, and in the by-laws that each Council may approve. Such
by-laws must be approved by absolute majority.
In the past, one of the Council’s competences was to deliberate on all sub-
jects relating to municipal administration that were not attributed to the Execu-
tive Board or to the mayor. This burdened the Council with an enormous
number of decisions that were often unimportant. Now the Executive Board has
the general competence to adopt all acts of administration not expressly re-
served for other governing bodies. The Council now controls only a specific
series of acts considered «fundamental» such as statutes and regulations, pro-
grammes, plans, balance sheets, constitution of associations, public services,
and creation of tributes.
The city or provincial councillors have different rights:
– to assume initiatives on topics in which the Council has competence;
– to request that the Council be convened;
– to formulate questions and motions to which the mayor or the aldermen
must respond;
– to receive news and information from the offices of the municipality and
the province, from public companies and associated bodies;
– to receive a fee for attending the sessions of the Council and the committees.
Apart from the renewal of the Council, councillors loose their posts under
the following circumstance: death, resignation or forfeiture (for example, ineli-
gibility or incompatibility). Normally, the council’s mandate expires five years
after election, but it may also be dissolved by decree of the President of the
Republic, in extraordinary and exceptional circumstances such as the perpetra-
tion of unconstitutional acts, serious and persistent breaches of law or public
policy; conditioning by or infiltration of organized crime; the resignation of the
majority of the councillors; or when the annual local budget is not approved
within the term.
The mayor (sindaco) and the president of the province play a fundamental
role in the functioning of the local authority. In particular:
– they convene and chair the Executive Board (the Council in municipali-
ties);
– they control the functioning of services and offices and the execution of
local decisions, measures, plans and policies;
– they exercise other functions established by law, statute or regulation;
– they nominate aldermen;
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luciano vandelli
The Executive Board is composed of the mayor, who acts as chairman, and
an even number of aldermen, established by the statute, in accordance with law.
The maximum number has changed frequently, but is presently set at 25% of the
councillors. The mayor and the president of the province nominate the aldermen.
In smaller municipalities (less than 15,000 inhabitants) citizens who are not
councillors may be chosen if this is expressly established in the statute. The Ex-
ecutive Board and the council are separate in the bigger municipalities and the
provinces, where the office of alderman and councillor are incompatible.
The aldermen are members of the Executive Board, and take part in the for-
mation of collective decisions. Beyond this function, they have other duties that
are performed individually. Termination of office for an alderman may occur by
350
local government in italy
resignation or revocation. The latter is very discretionary and reveals the degree
to which this relationship is based on trust between the mayor and the aldermen.
The Executive Board cooperates with the mayor or the president of the
province in governing the municipality or province. It adopts acts that are not
reserved for the Council by law or statute or do not pertain to the Council’s
competences, nor to those of the mayor or the president of the province, the lo-
cal authorities, the secretary and the executives. The Executive Board adopts
actions following collegial deliberation, and its members have no direct compe-
tences regarding external affairs.
The legal regime of local government personnel, as well as all the Civil
Service, changed radically with the reforms to privatize Public administration
staff, starting with Decree No. 29 of 1993, which advocated for contractual
sources such as collective and individual labour agreements. Current govern-
ment employees are normally regulated by the Civil Code.
During 1992-1993, the shift in government «privatisation» increased: col-
lective labour agreements and unions became increasingly important. Provi-
sions adopted in 2009, however, marked a turnaround, with limited contractual
autonomy on the part of the administrations and a reduction in private sources,
particularly, in regard to complementary agreements.
A series of cost-cutting measures were adopted: control of absenteeism, de-
termination of who will receive wage increases, and the reduction in consul-
tancy fees and staff. Transparency requirement were put in place, by publishing
data on wages, executive CVs, and staff absenteeism rate on public administra-
tion webs.2 Although collective bargaining establishes the rights and obliga-
tions of employment and the subjects involved in the labour relations, it should
not regulate topics such as the organization of the offices, or the professional
qualities demanded for executives (Decree No. 165 (2001), as amended). Other
subjects such as disciplinary actions, performance evaluation for subsidiary al-
lowances, mobility and economic increases should be outlined in the law in
order to establish the overall limitations for future bargaining.
2
In compliance with legislation (Law No. 15 (2009) and Decree No. 150 (2009)), which
addresses collective bargaining and other connecting matters.
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local government in italy
Managerial roles in the public sector changed enormously during the reforms
in the 90’s, as they affirmed a line of distinction («separation», according to oth-
ers) between politics and administration. The managers take care of the local gov-
ernment offices and services. They are responsible for carrying out many actions
such as presiding at the board of examiners for competitions and contests or bid-
ding and competition procedures; and formalizing contracts, acts of financial man-
agement, administrative decisions regarding personnel, and authorizations, con-
cessions and other adjudications, including building authorizations and permits.
Actions attributed by law to managers cannot be altered by statute or by the
regulation of local authority, so neither a «Segretario» nor a city manager can
substitute, assume, revoke or reform acts issued by the managers. Likewise,
they are directly responsible for upholding the objectives of the authority, en-
suring correct administrative procedure and efficiency. Law No. 15 (2009), and
Decree No. 150 of the same year, strengthened the managerial powers entrusted
to managers. Namely, they gained more powers in managing human resources
and directing and organizing the offices’ tasks. In this context, the power of the
manager to evaluate the local authority personnel takes on a special value, be-
cause the manager will be the one to determine the eventual recognition of
economic incentives, and the need to exercise disciplinary power.
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Managers are also subjected to a new system of evaluation, which has reper-
cussions in the level of responsibility and has direct effects on retribution and
stability.
In Italy, the traditional balance between the political class and the public serv-
ants is under discussion at the local level, particularly after the processes of de-
centralization and the introduction of the direct election of the mayor. Specifi-
cally, managerial tasks are assigned by the mayor (or by the president of the
province), for a given period and purpose and according to a legal, standardized
procedure. The justification for the assignment must refer to criteria based on
professional competence. Delegated Law No.15 and Decree No. 150 (2009) are
examples of legislation that emphasizes the importance of assigning managerial
tasks, professional profiles, evaluation systems that link managerial performance
and results, and situations of incompatibility. An example of the latter consists in
the prohibition to grant responsibilities to someone who has performed tasks or
acted as a consultant or collaborator for a public entity, in the past two years.
On the other hand, the reforms of the 90’s introduced the possibility for lo-
cal authorities to use external professionals, not only from the public adminis-
tration, but also from the private sector. In this sense, a statute can contem-
plate the possibility of covering management positions in services and offices,
and managerial or high specialization titles, through a fixed-term contract, as
long as the person has the necessary qualifications for the job. In no case, how-
ever, may contracts be longer than the mayor’s term of office (or the term of the
president of the province).
It is important to point out that there are special offices that support the di-
rection and control of political bodies. The establishment of this type of or-
ganization can be provided under municipal or provincial regulation. The of-
fices are directly subordinate to the mayor or president of the province, the
Executive Board or the councillors, and are staffed by personnel from the gov-
erning body or by collaborators with fixed-term contracts.
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vices to defend property and possession (art. 823). Local authorities can use
both administrative and ordinary channels to defend the ownership and posses-
sion of these properties (art. 823, Civil Code). Examples of this goods are, inter
alia: roads, aerodromes, waterworks, property of significant historical, archae-
ological and artistic interest, museum collections, art galleries, archives and li-
braries (art.822, Civil Code).
Municipal and provincial goods other than those mentioned in these catego-
ries are considered to be «regular» patrimony of the municipalities and prov-
inces (patrimonio delle province e dei comuni). As a «sub-category» of this
type of local authority property, the Italian Civil Code regulate the «non dispos-
able patrimony» (patrimonio indisponibile) : local buildings (such as the city
hall), seats of local government offices, as well as their furniture, etc. (art.826).
Special attention must be given to «patrimonial federalism». According to
art. 119 of the Constitution (2001), municipalities, provinces, metropolitan
towns and Regions, «have their own patrimony, attributed according to general
principles established by State law». At first glance, it would appear that the
Constitution establishes the right to patrimony only for territorial local authori-
ties, but most experts agree that it is also applicable to State property. In this
sense, recent legislation regulating «patrimonial federalism» (Law No. 42,
2009 and Decree No. 5 of 11 June 2010) allows the transfer of State goods to
regions and local authorities, as long as the latter have the means to exercise
their functions. Furthermore, art. 19 of Law No. 42 requires that the Govern-
ment attribute to local authorities, free of charge, several types of goods, in-
cluding public waterworks, airports of significant local interest, mines and
other properties, by agreement subscribed by the State-Regions-Local Authori-
ties Joint Conference. This agreement is based on several criteria such as terri-
toriality, subsidiarity, simplification, financial capacity, conformity with com-
petences and functions, and environmental improvement.
According to the principle of subsidiarity, if a good is not attributed to an
authority of a certain level of government, the State must assign it to another
authority of a different level that has requested it. The authority that will re-
ceive the good must inform its inhabitants and organize a referendum to guar-
antee that the good will be used in a way that maximizes benefit for the entire
population. Furthermore, for territoriality and subsidiarity criteria, transfers
of this type follow a specific order, first to municipalities, and exceptionally
to provinces, metropolitan towns or regions. Considering the value or typol-
ogy of the good, these authorities are best qualified to satisfy the require-
ments of defence, management and optimization that must exist in transfers
of this nature.
The transferred good becomes part of the body’s available patrimony and
can be sold if necessary. This is a controversial subject, since the sale of patri-
mony, particularly during period of financial difficulty, could result in wide-
spread divestment instead optimization of public goods.
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General principles
9.1.
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authority will carry out administrative action in an efficient, effective and eco-
nomical manner».
In the framework of the general move in favour of efficiency and transpar-
ency of governmental action that took place in 2009 (Law No. 15 and Decree
No. 150), every local authority, singularly or in an associated form, must cur-
rently seek an independent body to check its performance. Specifically, this
body monitors the performance of the evaluation system, its transparency and
the integrity of internal controls. It also reports the most critical findings to the
governmental bodies of the local authority, the Court of Auditors and the na-
tional committee established for the evaluation, transparency and integrity of
public administrations.
This independent body is composed of one or three members, depending on
the size of the authority. These members are top professionals with proven ex-
perience, who meet the requirement of strict impartiality that will guarantee the
independence of their work
Although there is no ombudsman at the national level, the figure was intro-
duced in 1990 for municipalities and provinces as an eventual option. The om-
budsman «guarantees the impartiality and the proper workings town and pro-
vincial public administration», and reveals, «on his own initiative, the abuses,
defaults and delays in the administration’s interaction with its citizens». T h e
by-laws of several municipalities or provinces describe the election, powers
and the resources of the ombudsman, as well as his relationship with municipal
and provincial councils. Local provisions commonly tend to regulate the local
Ombudsman following the model of independent authorities: specific provi-
sions on nomination, independence from the local political rulers, non re-eleg-
ibility, etc.
The duties and powers of the ombudsman depend on the provisions of local
regulations. Generally, any individual or association of individuals can file a
complaint against a local body for its inactivity or misconduct. The ombuds-
man has the right of access to the file, to form an inquiry, etc. Normally, the
results of the inquiry are expressed in the form of a recommendation directed to
the responsible political body or executive, so the authority is not obligated to
adopt or desist any actions.
Apart from this typical role, the Difensore Civico can also intervene as a
means of control, if requested by a quota of councillors(1/4 or 1/5, according to
the size of the authority). In these cases, if the ombudsman considers a delib-
eration unlawful, he can urge the re-consideration of it. This form of control
was instituted following the constitutional reform of 2001.
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local government in italy
Recently, the figure of the ombudsman has undergone a full scale revamp-
ing with the prospect of simplifying and reducing costs. There was a move to
eliminate this figure across the board in the financial law of 2010, but that was
quickly corrected in January 2010: Decree-Law No. 2, 20103 establishes that
the elimination of the difensore civico will only affect the municipal level.
Therefore, at present the ombudsman exists only in the provinces («territorial
ombudsman»), and his competencies encompass provincial and town adminis-
tration, provided the municipalities stipulate this in special agreements with the
province.
3
This rule establishes urgent measrures concerning local and regional bodies: «Interventi
urgenti concernenti enti locali e regioni».
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Section I, advice 30 September 1993, No. 984, regarding the form of govern-
ment of the local authorities;
Section V, 8 August 2003, No. 4598, regarding the suppression of the controls
of the acts of local authorities;
Section V, 21 November 2003, 7632, regarding the distinction between direc-
tion and management;
Section V, 25 September 2006, No. 5625, regarding the managers of local au-
thorities;
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local government in italy
(A) Handbooks
Gambino (a cura di): Diritto regionale e degli enti locali, Milano, 2009;
Italia, Maggiora, Romano: L’ordinamento comunale: strutture, competenze,
attività, Milano, 2005;
Pinto: Diritto degli enti locali, vol. I, parte generale, 2 ed., 2005;
Staderini: Il diritto degli enti locali, Padova, 2006;
Vandelli: Il sistema delle autonomie locali, Bologna, 4 ed., 2011
Vesperini: Gli enti locali, Roma-Bari, 2004;
Virga: L’amministrazione locale, Milano, 2a ed., 2003.
(B) Guides
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(C) Periodicals
ASTRID (Foundation for the Analysis, the Studies and the Research on the
Reform of the Democratic Institutions): www.astrid.it;
Federalismi: www.federalismi.it;
Institute of Studies on regional federal systems and authonomies of the Na-
tional Research Council: www.issirfa.cnr.it.
364
Chapter 15:
LOCAL GOVERNMENT IN LATVIA
Inga VILKA
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A single-tiered system of local government has existed in Latvia since the im-
plementation of the administrative territorial reform in July 2009. Immediately
following the reform, there were 118 local government units, but after the splitting
process of one municipality in 2010 and elections in the two new territories, as of
2011 there are 119 local authorities in the country: nine «republican» cities (repub-
likas pilsēta) and 110 municipalities (novads). Pursuant to the Law, a «republican»
city is characterized by the following: it has developed commercial activities,
transport and community facilities, and a social infrastructure; it has a significant
complex of cultural institutions; and it has at least 25,000 permanent residents.
The new division of local authorities into republican cities and novads does
not ensure the division of territories into urban and rural territories: in many
novads, towns with an urban living environment and infrastructure are included
as territorial units and populated areas. Thus, part of the novads could be clas-
sified as mixed urban-rural territories. The whole territory of a republican city
may be characterized as a populated area, while populated areas in the novads
territories are towns and villages. After the reform, there are still significant
disparities in size among municipalities. In terms of population, the largest lo-
cal government is the capital city, Riga (706,413), with one-third of the entire
population of Latvia. The smallest municipality, Baltinavas novads, has 1,364
residents. The total population in Latvia in early 2010 was 2,248,374.1
1
Data from the Central Statistical Bureau of Latvia.
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local government in latvia
Table 1
Number of local authorities by population (source: Central Statistical Bureau)
Up to 2,000 4 4
2,000-5,000 34 34
5,000-10,000 38 38
10,000-20,000 17 17
20,000-30,000 2 13 15
30,000-50,000 2 4 6
50,000-100,000 3 3
100,000-150,000 1 1
More than 700,000 1 1
Total in Latvia 9 119
The presentation of the current legal scheme of local government and local
autonomy in Latvia must begin with a reference to the European Charter of Lo-
cal Self-Government (ECLSG). On 22 February 1996, the Parliament of Latvia
(Saeima) ratified 26 out of 30 paragraphs of the ECLSG. On 22 April 1999, the
Saeima accepted three more paragraphs. Latvia still has not accepted Art. 8.9 of
the Charter (‘For the purpose of borrowing for capital investment, local au-
thorities shall have access to the national capital market within the limits of the
law.’). Although the Charter was ratified by Latvia only in 1996, its principles
have been incorporated into domestic legislation since 1994. As a matter of
fact, the strategic policy document called the «Local Government Reform Con-
ception», accepted by the government in 1993, was based on principles of the
Charter.
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Formally speaking, upon its ratification the Charter should have been auto-
matically transposed into Latvian domestic law. However, as noted above, some
principles (articles) of the ECLSG had already been incorporated into legislation
before the legal ratification; some principles were incorporated later—mostly
within the development process of the local government system—; and some
principles have still not been incorporated into the legislation. What is more,
some domestic legislative norms even contradict the Charter or do not follow the
ECLSG’s principles. There are cases in which local authorities the Constitu-
tional Court have used the Charter as a direct legal source. In this sense, the
Association of Local and Regional Governments of Latvia is the main actor in
the law-making process that monitors and controls compliance of the draft laws
with the Charter. However, it is noticeable that the Association does this if it is
beneficial for local governments; otherwise, the Charter is not mentioned.
In 2011, the ratification of Art. 8.9 of the Charter was included on the agen-
da of the current government of Latvia (in power since November 2010), as it
is mentioned in the Declaration of the Government. However, the signature and
ratification of the Additional Protocol of the Charter is not on the government’s
agenda; moreover, local authorities have not expressed any interest in it. One of
the Charter’s principles which has not been implemented is the one enshrined
in its Art. 2, according to which local self-government should be recognised in
the national constitution. In Latvia, the principles of local self-government are
still not recognized in the Constitution (Satversme). Local government is cer-
tainly mentioned in Arts. 25, 101 and 104 of the Constitution. Art. 101 (under
the section of Human Rights) states that local governments are to be elected by
Latvian citizens who enjoy full rights of citizenship and by citizens of the E.U.
who reside in Latvia permanently. It is not enough to conclude that local self -
government principles are recognized in the Constitution.
The main piece of Latvian legislation that contains the principles for local
government activities is the «Local Authorities Act», adopted on 19 May 1994.
This statute sets out the general provisions and economic basis for the activities
of the local bodies of Latvia, such as: (a) their competences; (b) the rights and
responsibilities of local government councils and their institutions, as well as
those of the chairpersons of the city or municipal councils; (c) the relationship
of local authorities with the central government; and (d) the general provisions
for the relationships among local governments. The Local Authorities Act in-
cludes the following definition of local government: «A territorial local au-
thority is a local administration which, through bodies of representatives elect-
ed by citizens—city or novads council—and authorities and institutions
established by them, ensures the performance of the functions prescribed by
law, as well as the performance of tasks assigned by government according to
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Local authorities in Latvia are responsible for a very wide range of public
duties, as per the Local Authotities Act, which stipulates for them, among oth-
ers, the following autonomous functions:
– To organise the provision of utilities (water supply and sewerage; supply
of heat; management of municipal waste; collection, conduction and puri-
fication of waste water);
– To maintain public services and facilities and the upkeep of their adminis-
trative territory (buildings, reconstruction and maintenance of streets,
roads and public squares; lighting of streets, public squares and other ar-
eas designated for public use; development and maintenance of parks,
public squares and green zones; control of collection and removal of
waste; flood control measures; establishment and maintenance of ceme-
teries and dead animal disposal sites);
– To provide for the education of residents (ensuring the right of residents to
primary and general secondary education; ensuring children of pre-school
and school age with places in training and educational institutions;
– To maintain culture and facilitate the preservation of traditional cultural
values and the development of creative folk activity;
– To ensure access to health care and promote sports and a healthy lifestyle;
– To ensure social care for residents (social assistance to poor families and
socially vulnerable persons: places for senior citizens in residences and for
orphans and children without parental care, etc.);
– To provide assistance to residents in the resolution of housing issues;
– To facilitate economic activity within the relevant administrative territory
and to take measures to reduce unemployment;
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– To issue permits and licences for commercial activity, as provided for by law;
– To participate in ensuring public order and combat drunkenness and im-
morality;
– To determine land utilisation and procedures for its development, in ac-
cordance with the territorial planning of the relevant local government;
– To ensure the lawfulness of construction within the relevant administra-
tive territory;
– To maintain a civil registry;
– To gather and report information necessary for State statistics;
– To carry out the necessary measures for the election of city or county
councils;
– To participate in ensuring civil defence measures;
– To organise public transport services;
– To protect the rights of minors.2
Apart from these, there are autonomous functions stipulated by other laws.
Local governments are also responsible for a number of temporary functions
and tasks, as laid down by laws and regulations.
Apart from mandatory tasks, local government can take voluntary initia-
tives. In this sense, the Local Authorities Act states that, «in the interests of
their residents, local authorities may voluntarily carry out initiatives with re-
spect to any matter, if this is not within the competence of the Saeima (the
Parliament), the Cabinet of Ministers (the government), the ministries, other
state administrative institutions, the courts or other local governments, and as
long as such activities are not prohibited by the Law».3 Examples of local gov-
ernments’ voluntary functions include municipal police (if the local authority
chooses to provide this service, the law prescribes certain restrictions), adult
education, fire protection (usually a State function) and lodgings and retail
services (some cities and novads have hotels, campgrounds, markets and res-
taurants).
The Local Authorities Act contains a section on the special functions of the
capital city, Riga. In addition to the functions specified in the Law, the capital
2
Local Governments Act, Art. 15.
3
Local Authorities Act, art. 12.
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local government in latvia
city has as its permanent responsibility the following State and local govern-
ment functions:
– providing support to central State institutions, foreign diplomatic missions
and consular institutions, as well as ensuring the conditions necessary for
the activities of international organisations;
– ensuring the conditions for the reception of foreign delegations and for the
maintenance of national symbols;
– participating in the maintenance and development of historical objects of
State and international importance, of cultural and historical objects of
national importance and of the cultural infrastructure; and
– taking part in the maintenance and development of communications sys-
tems and transport infrastructure of State importance.4
The local authority may decide to entrust the tasks arising from each au-
tonomous administrative function to a private individual or to another public
person. By mutual agreement, local bodies may transfer among themselves the
performance of separate functions within their competence. The decision to
perform the transfer of administrative functions must be taken by the city or
municipal council of the local authority. Based on such decision, a written con-
tract specifying the sources of financing for the performance of the functions is
signed. Although the law determines that State administrative institutions do
not have the right to assign to local authorities the performance of such func-
tions and tasks for which financing is not provided, in practise there are cases
in which new tasks or new prescriptions on existing ones are assigned without
additional financing. In carrying out their functions, and in accordance with
legal procedures, local authorities have the right to:
– establish subordinate local bodies, associations or foundations and capital
companies, as well as invest their own resources in capital companies;
– acquire and alienate movable and non-movable property, privatise facili-
ties owned by local governments and conclude transactions, and perform
other activities of a private law nature;
– introduce local fees and determine their rates and the extent of their ap-
plication; and
– take actions to court and present complaints before administrative institu-
tions.5
– issue binding regulations to ensure the performance of their functions.
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The representative body of the local authority is the council (dome). The
number of council members and the process of local elections are regulated by
the City Council and Municipal Council Elections Act (passed in 1994, with
later amendments). The rights and responsibilities of the members of the city or
municipal councils are specified by the Local Authorities Act and the Status of
Councillors in Republican City Councils and Municipal Councils Act. Local
government councils are elected for four years by direct universal suffrage,
under proportional representation by the list system. The most recent local elec-
tions in Latvia, the first held in reformed territories, took place on 6 June 2009.
In those elections 1,765 councillors were elected in 118 local authorities.
The number of local councillors is proportional to the population they rep-
resent. Until 2009, the number ranged from seven to 60, but since the elections
held that year, the number of councillors in the novads ranges from 13 to 19,
whereas in the republican cities it ranges from 13 to 60.
Table 2
Number of councillors in local bodies according to population
up to 2,000 7
2,001-5,000 9 up to 5,000 13
5,001-20,000 11 5,001-20,000 15
20,001-50,000 13 20,001-50,000 13 17
50,001 and more 15 50,001 and more 15 19
Riga 60 Riga 60
Any Latvian citizen age 18 or older has the right to vote in council elections,
barring any other legal limitations. Citizens of other EU member states who are
permanent residents in Latvia and who have registered to vote may also par-
ticipate in local elections. Any person has the right to vote by choice either in
the administrative territory of the local authority where he has declared his
place of residence or in a location where he owns property. With the exception
of persons to whom limitations apply, the right to be a council candidate be-
longs to Latvian or EU citizens who have reached the age of 18 on the date of
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local government in latvia
the election and are registered voters and who reside or own property in the
administrative territory of the respective municipality or who have been perma-
nently employed in the territory of the municipality for at least the four months
immediately prior to the submission date of the list of candidates.
Only registered political parties or their registered associations or two or
more registered parties which have not united in a formal association can submit
lists of candidates in municipalities with more than 5,000 residents. In localities
with fewer than 5,000 residents, voters’ unions (local lists) are also entitled to
submit lists of candidates. In 2009, a 5% threshold was established for all coun-
cil elections. The voter turnout in the 2009 local elections was 53.8%, slightly
higher than in the previous local elections (52.9%). In local elections, voter par-
ticipation is usually lower than in the elections for Parliament (Saeima).
Council meetings must be held at least once a month and must be open.
Since the reform of 2010, minutes and decisions of the local council meetings
must be published on the local government’s web page. City or municipal
councils may examine any issue that is under the supervision of the relevant
local government. Among the powers of the council stand the following ones:
– To approve local government by-laws, the local budget and its amend-
ments;
– To approve the local government territorial development programme and
territorial plan;
– To approve the local government territorial divisions and their administra-
tive structure;
– To establish, reorganise and dissolve local government institutions, local
government capital companies, associations and foundations, and approve
the statutes of local government institutions;
– To appoint and remove the heads of local government institutions and
other officials;
– To elect the chairperson of the city or county council, the vice-chairper-
son, members of standing committees and members of the audit commis-
sion, as well as discharge them from office;
– To determine the charges for local services;
– To adopt binding regulations with respect to the implementation of local
government fees;
– To take decisions with respect to the alienation, pledging or privatisation
of local government immovable property, as well as the acquisition of
such property;
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The chairperson of the council is elected by secret ballot from among the
council members. Any councillor has the right to nominate a candidate for the
position of chairperson of the city or municipal council. The chairperson of a
city or county council is elected if the candidate has received more than half of
the votes of the councillors. Formally speaking, the chairperson is a leader with
decision-making power; in fact, the chairperson holds executive power, as well.
After the election of the chairperson of a city or county council, a vice-chairper-
son is elected from among the councillors. A chairperson of a city or county
council may have several deputies.
The law stipulates that the chairperson of a city or county has, among other,
the powers to:
– manage the work of the city or county council and coordinate the examina-
tion of issues in committees;
– represent the local government in relations with the State and with other
local authorities;
– represent the city or county council in court without special authorisation;
– sign contracts and other legal documents, in representation of the city or
county council;
– issue binding instructions to local government administrative employees;
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local government in latvia
– be responsible for the execution of court rulings in which one of the parties
is the city or county council; and
– perform other duties as determined by laws, Cabinet decisions, local by-
laws and decisions of the city or county council.6
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Local government staff is not comprised of civil servants. All staff members
(except the chairperson and deputies) have the status of employees. Local au-
thorities recruit and manage their own human resources, in an autonomous
way. They can draw up staff regulations for employees, providing these regula-
tions do not conflict with established labour law. There are special education
requirements for some local staff positions, e.g., for members of orphans’
courts, teachers, construction supervisors, etc.
For many years, the salaries of the chairperson and deputies, as well as those
of local staff members, were determined by the council. During the economic
crises, stronger financial control in the public sector was introduced, and since
2010 the Remuneration Law for State and Local Government Officials and
Employees has been in force. According to this statute, the government deter-
mines the ceilings for public staff salaries (i.e., State and local government)
within different categories. In addition, the lists of salaries (without names)
must be published on the local authority’s web page.
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local government in latvia
prepare and submit monthly and annual budget reports to the Treasury. The
public has access to local government budget reports (data) on the Treasury
Web page (http://www.kase.gov.lv).
Until 2008, local budget revenues increased from year to year; the portion of
local budgets in the General Government Consolidated Budget increased sig-
nificantly, as well. Since 2009, local budget revenues have decreased. In 2010,
total local government budget revenues amounted to 1,320.3 million lats (LVL)
(€1,878.6 million), comprising 28.7% of the total public budget of the Repub-
lic of Latvia (see Table 3).
Table 3
9
General Government and Local Government Consolidated Budget Revenues89
According to the Local Government Budgets Act, local budget revenues are
comprised of:
– apportionments from State taxes and fees
– local government fees
– State budget grants and earmarked grants
– grants from the Local Government Finance Equalisation Fund
8
Source: Annual Reports on the Execution of the General Government Consolidated Budg-
et (http://www.kase.gov.lv). Data for 2010 from the Official Monthly Report on the Execution of
the General Government Consolidated Budget (January-December 2010).
9
Latvia’s national currency is the «Lat». 1lats (LVL) = 1.42 euro (EUR); 1EUR = 0.702804 LVL.
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Table 4
Local government basic budget revenue structure in 201010
It is important to stress that there are no local taxes in Latvia. The Taxes and
Fees Act provides only for State taxes. Therefore, the «tax revenues» of local
authorities consist of apportionments from four different State taxes:
– real estate tax (destined to local budgets: 100%);
10
Source: Official monthly report on the Execution of the General State Consolidated Budg-
et (January-December, 2010).
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local government in latvia
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– official documents and certified copies of the same issued by a local gov-
ernment council
– vacation and tourist accommodations
– trade in public places
– ownership of all types of animals
– motorized transport into zones of special use
– placement of advertisements, posters and announcements in public places
– ownership of boats, motorboats and sailboats
– utilisation of local government insignia
– delivery of construction permits.
In Latvia, there is rather high share of earmarked State grants in the local
budgets: in recent years it has been around 20%. The State provides almost no
general grants apart from contributing to the Local Government Finance Equal-
ization Fund. The system of financial equalization for local government was
introduced in 1995 based on recommendations from the Council of Europe and
on experience from Denmark. The goal of this equalization system is to provide
financial resources that ensure approximately equal opportunities to meet the
needs of all citizens. In recent years, local authorities have contributed more
than 90% of the Fund, while the share from the State budget has been less than
10%. Improvement of the equalization system is one of the main tasks related
to local governments on the central government’s agenda for 2011. As of 2004,
E.U. structural funds and other funds are also available for local governments,
then constituting a significant part of the local revenues (12% in 2010) that are
targeted towards development.
7.5. Borrowing
Local authorities have the right to borrow only to finance capital expendi-
ture. Short-term borrowing is only allowed to cover a short-term fiscal deficit
and must be repaid within a fiscal year. Loans must be approved by the Local
Government Borrowing and Guarantee Board, made up of representatives from
several ministries, the Treasury, the Central Bank and the Association of Local
and Regional Governments of Latvia. Municipalities can guarantee loans to
companies if the local government share is up to 50% in the given company
(65% for a joint municipal company). The total limit on local governments’
borrowing and guarantees is included in the annual State Budget Act and is
negotiated beforehand between the Cabinet (central government) and the As-
sociation of Local Authorities.
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Local councils do plan, adopt and implement their proposed budgets inde-
pendently. State institutions are not allowed to interfere with the drafting and
implementation of local budgets unless prescribed by law. At the beginning of
the year, the Local Governments Finance Supervision and Financing Depart-
ment of the Ministry of Finance provides aggregate information about self-
government budget plans. The Ministry of Finance monitors their compliance
with the existing legislation, but the ministry has no right to interfere with the
budgetary process except with regard to compliance with legislation. The
Treasury summarises budget implementation data, and makes up and publishes
monthly accounts.
According to the Local Authorities Act, at least once a year each local coun-
cil must invite an auditing company or a certified auditor for revision and state-
ment preparation for annual reports. Local authorities have the right to form
their own internal auditing (revision) commission, at the discretion of the local
council. Based on the auditors’ reports and its own selected revisions, the State
Audit Office issues an annual statement on local government’s budget reports.
If the Parliament passes a statute, or if the Cabinet of Ministers issues regu-
lations after the enforcement of the State Budget Act, and such new legislation
leads to an increase in the expenditure or a decrease in the revenue of the local
government budgets, the sources of State financing must be indicated in the
new act or Cabinet Regulation to cover the increase in the expenditure or the
decrease in revenue of the local government budgets. In practice, however,
these procedures are not always followed, thus allowing local governments not
to fulfill all compulsory tasks, which later results in legal nihilism.
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Local governments, within the scope of their competence and the law, act in
an autonomous way, but, in implementing delegated State administrative func-
tions and administrative tasks, a local authority represents the Republic of
Latvia and is then subordinate to the Cabinet of Ministers. Different types of
control should be here considered.
On the one hand, unlawful decisions (resolutions) of a local council, with
the exception of resolutions applying to individual legal entities of physical
persons, or separate articles in a resolution, may be suspended by the responsi-
ble minister (as of 2011, the Minister of Environmental Protection and Re-
gional Development) by a substantiated ruling. Within three days after its adop-
tion, the ruling must be published in an official newspaper and forwarded to the
chairperson of the affected council. Within two weeks from the receipt of a
Minister ruling, the council’s chairperson must summon an extraordinary coun-
cil meeting which must decide whether to withdraw or annul the controversial
resolution or to make it comply with the laws and other legal acts in effect. The
Minister, then, must be duly notified as to the time and venue of the council
meeting. The chairperson of the council has the right to apply to court with an
appeal to revoke the instruction of the responsible minister without summoning
an extraordinary council meeting. If the council or council’s chairperson fails
to enact the conditions set by the relevant Minister or fails to apply to court in
due time, the illegal resolution or its separate articles will be considered as re-
voked. The minister publishes this state of facts in an official newspaper.
Physical and legal persons can report illegal local government activity to the
relevant minister. In relevant cases, reports can be submitted to the Prosecutor’s
Office, the Corruption Prevention and Combating Bureau, the Administrative
Court and the Constitutional Court.
On the other hand, if a local council’s chairperson fails to comply with, or
breaches, the Constitution, the laws or regulations of the Cabinet of Ministers,
or if he fails to execute a law court decision, the relevant Minister, after receiv-
ing an explanation from the said chairperson, can suspend him from office by a
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justified order. The chairperson has right to appeal to the court to revoke the
minister’s order.
Until the beginning of 2011, the State institution responsible for overseeing
local governments was the Ministry of Regional Development and Local Gov-
ernment (MRDLG), established in 2003 by bringing together former State ad-
ministrative institutions in charge of supervising local authorities, regional de-
velopment, local government development, spatial planning at all levels and
housing development, which before that time had been under the supervision of
different ministries. Housing development was later moved to the Ministry of
Economics, but after the abolishment of the Secretariat for Special Assign-
ments of the Minister for Electronic Government Affairs (in 2009), the MRDLG
took on its functions. At the beginning of 2011, the MRDLG was amalgamated
with the Ministry of Environmental Protection, and as of 2011 the ministry re-
sponsible for local governments is that of Environmental Protection and Re-
gional Development.
The Office of the Ombudsman began to function in March 2007, when the
first Ombudsman in Latvia was elected by the Parliament. The Office of the
Ombudsman has jurisdiction over all public bodies at both the central and the
local levels. Approximately 10%-15% of all complaints and reports to the Of-
fice of the Ombudsman are related to local governments. The Ombudsman’s
statement is not legally binding, but rather serves as a guideline.
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law for the dismissal of a local council and following a proposal from the Cab-
inet of Ministers, the Saeima appoints a temporary administration for the local
authority in question and establishes the data for a new local council election.
If less than 15 months remain until the regular local council election, no new
local council is elected.
Until now, there have been only two cases in which the Saeima has dis-
missed a local council. First was Renda pagasts in 2003. The reason for dis-
missal was the council’s lack of decision-making capacity, as more than a half
of the total number of members failed to participate in three successive council
meetings. After one member of the ruling coalition joined the opposition, it
acquired majority status on the council and openly ignored the meetings. Sec-
ond was Ķekava novads (in Riga district—one of the richest local governments)
in 2008, as it failed to work in compliance with the law and could not fulfill its
functions as determined by law (breaches were connected with construction
permits and illegal building).
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In the period from 2003 to May 2004, the politicians of Latvian local gov-
ernments had the possibility to participate in the EU Committee of the Regions
(CoR), with the status of observers. Since 1 May 2004, when the Republic of
Latvia became a member of the EU, Latvia has had a member delegation on the
CoR consisting of seven members and seven substitutes, all of whom are local
government councillors representing both different types and sizes of local
governments. In order to be able to influence EU legislation, which concerns
both local and regional government interests, in September 2005 the Represen-
tation Office of the Latvian Association of Local and Regional Governments in
Brussels was set up. The main objective of LALRG representation is to ensure
compliance with the interests of Latvian local and regional governments in the
process of elaborating E.U. legislation.
The LALRG Foreign Affairs Department is responsible for the coordination
of the Association’s international activities, including lobbying in EU struc-
tures. The LALRG representation office in Brussels is a part of the Foreign
Affairs Department and is located in the House of European Municipalities and
Regions in Brussels, where it shares joint premises with associations of some
18 countries. This facilitates coordination of position papers and opinions in
order to act effectively in different stages of the EU legislative process. The
Brussels’ Representation Office, in cooperation with the LALRG Department
of International Activities, performs different activities. Among other actions,
it coordinates LALRG lobbying activities in the EU; acts as Secretariat for the
Latvian members of the EU Committee of the Regions (CoR); coordinates the
preparation of proposals and opinions for issues dealt with by the CoR; carries
out consultations on general EU issues and policies; and disseminates experi-
ence and knowledge on the development of local democracy in Latvia among
interested parties.
11
The Law envisages that the right to submit a claim to the Constitutional Court are held by
the following claimants: the State President, the Saeima (national Parliament), no fewer than
twenty members of the Saeima, the Cabinet of Ministers, the Attorney General, the Council of
the State Control, the Ombudsman, the Local Government Council, the courts of general jurisdic-
tion (when reviewing a civil, criminal or administrative case), a judge of the Land Book Registry
(when entering real estate—or thus confirming property rights on it—in the Land Book), as well
as any natural or legal person whose fundamental rights, as set out in the Constitution, have been
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ernment: some 25 cases deal with local government territorial plans (spatial
plans), seven cases are related to administrative territorial reform and several
other cases are related to local governments. One of the most important judge-
ments is the Ruling of 21-1-2007, which deals with the compliance of the Sec-
ond Part of Section 7 of the Public Transport Services Act with Arts. 2, 3 and
the First, Third and Fourth Parts of Art. 4 of the ECLSG. In this decision, the
Court states the basis of local government.
violated. To date, the Constitutional Court has received more than 7,000 claims, and more than
400 cases have been initiated. Approximately half of the matters have been initiated by individu-
als. As of the end of 2010, the Court has made nearly 200 rulings.
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Chapter 16:
LOCAL GOVERNMENT IN LITHUANIA
Diana ŠAPARNIENĖ
Aiste LAZAUSKIENĖ
Self-government in Lithuania dates from the 14th century. Vilnius, the capi-
tal of Lithuania, obtained the right to self-government in 1387 through the
Magdeburg Rights, which spread throughout Lithuania. Such self-government
established the right of towns (in the fight with feudal lords) to have their own
figure of authority (the magistrate) and a separate court consisting of a jury
elected by the townspeople.
In 1795, the Polish-Lithuanian Commonwealth was divided among Austria,
Russia and Prussia. The greater part of Lithuania went to the Russian Empire.
Governance was quickly reformed to follow the Russian model. In 1808, Lithua-
nian cities (Vilnius, Kaunas) began to be governed by dumas (councils). The
functions of the dumas were not extensive: they were to maintain order, stimulate
business and care for city property. Some problems related to city management
were solved by other institutions, e.g., the governor, the police, etc. In 1876, or-
dinances which replaced the order of elections to the self-government organs
entered into force. The city council or duma, which was elected for a four-year
term of office, was chosen not by the representatives of social castes but by the
owners of property. City residents being 25 or older who owned real estate in the
city and paid taxes to the city treasury had the right to vote. In 1892, Czar Alex-
ander III affirmed new city regulations that limited the rights of city self-govern-
ment somewhat, and the number of electors having the right to vote decreased.
In 1861, the occupied Lithuanian territory was divided into administrative
territorial units or townships, each having a caste-based form of self-govern-
ment with an assembly, a council and a court. Only peasants belonged to the
township municipalities. The nobility solved its matters separately: from 1566
to 1863, its institutions of local self-government functioned in county assem-
blies of noblemen.
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Under 1,000 1,000-5, 000 5,001-10, 000 10,001-50, 000 50,001-100,000 Over 100,000
Municipal councils have the right to divide municipal territories into wards
(seniūnija). As only administrative subdivisions of the municipalities, wards do
not have any form of local autonomy. At present, 524 wards exist, with each
municipality having eight to nine wards. These are subdivided into elderships
(seniūnaitija), in which the citizens elect an elder. However, neither the ward
nor the eldership has the right to autonomy.
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to the provisions of the Charter and to respecting all principal provisions de-
fined in it. Thus, in Lithuania the Charter is given direct legal force. In the
Lithuanian legal system, the Charter takes on a special and distinctive role.
The interface between the Charter and Lithuanian national law is based fore-
most on Arts. 138 and 7 of the Constitution of the Republic of Lithuania. As
previously mentioned, Art. 138 provides that international treaties ratified by
the Seimas of the Republic of Lithuania are constituent parts of the Republic’s
legal system. According to Art. 7, in Lithuania neither the law nor any other
legal act contradicting the Constitution is valid. Bearing in mind this constitu-
tional rule, it can be stated that the ECLSG is a part of the basis of the legal
system of the Republic of Lithuania, but it cannot contradict the Lithuanian
Constitution. If the legal norms contradicted the Constitution, the mentioned
legal acts could not be considered valid. The conclusion can be made that the
Lithuanian Constitution is the most powerful legal act of the Republic, and the
European Charter of Local Self-Government is a legal act of inferior legal sta-
tus than that of the Constitution.
The connection between the ECLSG and the Lithuanian laws was defined
on June 22, 1999 in Part 2 of Chapter 11 in the Act on International Treaties of
the Republic of Lithuania. This provision of the law establishes the ratified in-
ternational treaties as «the law of the land», and accordingly the precedence of
the ECLSG, in case of contradiction with domestic legislation.
Bearing in mind what has been said above, the conclusion could be made
that in a case of contradiction, the Charter actually takes precedence over
Lithuanian laws, but this Charter cannot contradict the Lithuanian Constitu-
tion. This conclusion also presupposes consequences, whatever they may be,
if the adopted laws are not compatible with the Charter. In this case, if laws
or other legal acts contain regulations other than those ratified in the Charter,
the provisions of the ECLSG must be applicable. Again, they cannot contra-
dict the Constitution, which, as previously mentioned, has the highest legal
rank in the Republic. This position is actually followed by Lithuanian courts
in resolving cases. The said position—that of the precedence of the Char-
ter—is revealed when the Seimas of the Republic of Lithuania adopts the
relevant laws, and the same is true for the decrees issued by the ministers.
For instance, in Chapter 2 of the Act on Local Self-Government of the Re-
public of Lithuania, it is noted that this law determines the formation of the
municipal councils and the order of their activities, while implementing the
provisions of the Constitution and of the European Charter of Local Self-
Government.
Therefore, local government in Lithuania is guaranteed by a double protec-
tion – by the guarantees set in the Constitution, and by the laws and interna-
tional treaties that ensure the implementation of a model of participatory de-
mocracy corresponding to a system of local governing institutions, and a legal
order based on the decentralisation of the government.
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local government in lithuania
Lithuanian local authorities do not have many powers. They do not have
sanctioning powers over individuals and firms, nor can they expropriate private
property.
Local authorities are able to institute different structural subdivisions of the
municipalities, such as bodies for public health, social services, education, mu-
nicipal companies and others. Local authorities are obliged to manage local
public services: education (kindergarten, primary, secondary), social and pri-
mary public health services, municipal transport, public utilities (energy, infra-
structure, water) and some cultural and environmental administrative services
(certificates, registries and others).
The competences and functions of municipalities are listed in the Act on
Self-Government of the Republic of Lithuania, and they may be divided into
«autonomous» functions and those delegated by the State.
(A) Autonomous functions, stipulated by the Constitution and laws, in-
clude, among others, the following:
– drafting and approval of a municipal budget;
– levying local taxes, fees and charges;
– management, use and disposal of the land and other property which belong
to a municipality by the right of ownership;
– organisation of general education, vocational training and vocational guid-
ance of children, youth and adults (creation, reorganisation, maintenance
and closure of educational establishments; organisation and implementa-
tion of teaching according to formal education programmes);
– organisation of transportation, free of charge, between home and school
for comprehensive school pupils residing in rural localities;
– planning and provision of social services; creation and maintenance of
social service establishments, social families and cooperation with non-
governmental organisations;
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particular municipality who is at least 20 years of age on the polling day may
be elected as a member of the council of that municipality.
At least 35 days before the election, parties may form coalitions and com-
bine the lists of nominated candidates to make joint lists. Candidates in the joint
list of parties cannot make up less than a half and/or more than twice the number
of municipal councillors to be elected. The name of a coalition of parties must
include the word «coalition» and cannot contain any references to the names of
parties which do not form part of this coalition or the names of self-nominated
candidates. A joint list of candidates of parties is considered to be a single list.
In a given municipality, the same party may not participate in more than one
coalition. Self-nominated candidates may unite to form joint lists of self-nomi-
nated candidates.
Voting lists are not «closed» but «open»: in their ballots, voters may cast
preference for the candidates in any list. As a consequence, the number of votes
cast for each individual candidate will determine his actual ranking in the list
after the election.
Under the proportional electoral system, the following number of council-
lors will be elected in each municipality:
– more than 500,000 inhabitants: 51 councillors
– 300,000 to 500,000: 41
– 100,000 to 300,000: 31
– 50,000 to 100,000: 27
– 20,000 to 50,000: 25
– 10,000 to 20,000: 21
– 5,000 to 10,000: 17
– fewer than 5,000: 15
The municipal council consists of representatives of the municipal commu-
nity—members of the municipal council (hereafter referred to as «councillors»)
who have been democratically elected according to the legally established pro-
cedure. The powers of the municipal council become effective when the elected
councillors first convene, and they expire when the councillors elected for a
new term of office first convene.
The municipal council is authorised to consider and adopt the majority of
important decisions concerning local life. The council approves the budget,
adopts the decisions to levy taxes, tolls and other duties; adopts decisions con-
cerning the disposal of municipal property and the establishment of budget in-
stitutions, municipal corporations, public institutions and stock companies, as
well as participation in their establishment. The council adopts the decisions
regarding the sub-districts and their number, etc. Every council member must
belong at least to one committee of the municipal council. The committees
discuss issues, together with proposals for their solution, for the council’s con-
sideration.
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For the duration of its term of office, the municipal council elects a munici-
pal mayor from among the councillors and, at the mayor’s proposal, appoints
one or more deputy mayors. The maximum possible number of deputy mayors
of a given municipality is determined by the number of its municipal council-
lors. No more than three positions of deputy mayor may be established in any
municipality whose council consists of 41 or more councillors; no more than
two positions of deputy mayor may be established in any municipality with a
council consisting of 27 to 31 councillors; and no more than one position of
deputy mayor may be established in other municipalities.
The mayor heads the municipality. Only citizens of the Republic of Lithua-
nia may become mayors or deputy mayors. The mayor is elected and his depu-
ty is appointed by secret ballot. The mayor is considered elected and a deputy
mayor is considered appointed if the majority of all the councillors have voted
for their candidatures. The mayor is accountable to the municipal council and
the community.
The powers of the mayor and deputy mayor(s) will be terminated prior to the
end of their term of office in case of a successful impeachment, which requires
specific majorities. If a vote of impeachment is not adopted, it may not be re-
considered for at least six months.
The mayor discharge important duties in the municipality:
– He/she plans the activities of the municipal council, sets and draws up the
agendas of municipal council meetings, convenes municipal council sit-
tings and presides over them, presents drafts of the council’s decisions,
co-ordinates the activities of the municipal council’s committees and com-
missions and signs the municipal council’s decisions and the minutes of
the meetings over which he has presided;
– He/she represents personally (or authorises other persons to represent) the
municipality in court, or with other municipalities, state institutions and
institutions of foreign states, as well as with other natural and legal per-
sons;
– He/she represents the municipality in the regional development council
and has the right to vote when preparing and implementing a regional de-
velopment programme;
– He/she submits to the municipal council a draft description of the compe-
tences of the deputy mayor(s);
– He/she submits to the municipal council a proposal to set up a municipal
council board;
– He/she submits to the municipal council proposals for the establishment of
the municipal council secretariat or for the establishment of positions of
civil servants of his or her political (personal) confidence (if a secretariat
is not established), as well as designation of their number, etc.
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ing payment from the municipal budget are approved and modified by the mu-
nicipal council at the proposal of the director of the municipal administration
and the recommendation of the mayor. Staff positions are approved by the di-
rector of the municipal administration.
There are two types of public employees in local authorities: civil servants
and employees working under labour contracts. The conditions and norms of
service of civil servants of the municipal administration are stipulated in the
Civil Service Act. According to this law, a person recruited as a civil servant
must satisfy general requirements, i.e. he must be a citizen of the Republic of
Lithuania, must know the Lithuanian language, must be over 18 and must have
higher education. Civil servants of the municipal administration report to the
director of the municipal administration.
It is worth mentioning that in the municipalities, public administration is
carried out by civil servants. There is no separate category of «municipal» civ-
il servants, as the Civil Service is unitary. There are no special types of local
employees who are selected or recruited by central/regional governments. Lo-
cal authorities have the power to select and to manage their own human re-
sources. The public employees of a local administration cannot simultaneously
be a member of their municipal council.
As stated above, the director of municipal administration is not a career of-
ficial: he is an appointed civil servant of political confidence; there is no open
competition to recruit the director. A person may serve an unlimited number of
terms of office as the director of the municipal administration. In contrast to the
maximum age of service allowed for civil servants (62.5 years), the maximum
age for officials of political confidence is not stipulated. Thus, the age of the
director of municipal administration is not limited.
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On the other hand, Lithuanian law does not define the concept of local taxes,
and all taxes belonging to municipalities are administered by the State tax in-
spectorates. Taxes ascribed to the municipalities (except those on personal in-
come) may be termed «local», but municipalities have few rights to change
their rates: they can only decrease the rates or exempt them on account of their
individual budgets.
Municipalities have more freedom in the domain of market fees (which they
may increase or decrease by up to 70%), rental fees for the use of State land and
bodies of water pertaining to the national water fund, as well as the tax on eco-
nomic activities, where municipal councils determine a fixed income tax).
These opportunities, however, do not play an important role in municipal budg-
ets: the essence of the problem is not that municipalities have few opportunities
to determine the amounts of taxes ascribed to them, but that these taxes com-
pose a very small part of municipal revenues—only 1%.
It is noteworthy pointing that Lithuania has begun implementing the guide-
lines set by the European Council in 1998 for equalising municipal fiscal re-
sources. This is done through the tax funds transferred to the Treasury. A cer-
tain percentage of income tax revenues is obtained only from the aforementioned
seven municipalities. That is to say, this percentage of personal income tax
from seven municipalities is redistributed by the Treasury in order to equalise
the personal income tax revenues of the remaining 53 municipalities. There-
fore, these transfers support those municipalities that collect less than the aver-
age amount of per capita personal income tax.
Yet, the municipalities’ system of collecting tax revenues ensures neither
their financial independence nor the efficiency of their functioning. Potential
revenues, based on foreseeable expenses, are drafted by the Ministry of Fi-
nance, which also calculates the so-called «basic» expenses and the final
amounts of expenses. When determining municipal budget expenses, the Min-
istry of Finance divides the municipalities into six groups, according to simi-
larities in their infrastructures and functioning conditions.
Personal income tax rates, which form an important part of municipal budg-
et revenues, are determined annually for each municipality and are based upon
the calculated expenses of each local body. In economic terms, this does not
differ from financial granting. Therefore, through financial grants the central
government may easily strengthen the control and supervision of municipalities
and may limit the competences of local authorities with respect to financial is-
sues: in other words, it may increase centralism.
The ability of municipalities to influence the amount or base of these taxes
is limited by law. It may be said that the municipalities themselves are not yet
interested in collecting more revenues, since this may prove disadvantageous to
them if, when the following year’s budget is being approved, there is a risk that
personal income tax rates might be reduced. Municipalities often find it diffi-
cult to plan their budgets credibly and to finance foreseen fields of activity.
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After Lithuania joined the European Union, its municipalities became com-
petitors for structural funding. This competition stems from the established pro-
cedure: the Ministry of Finance receives funding from the E.U. A given munici-
pality presents a project and in this way receives financing. The struggle among
municipalities over various projects is rather complicated, since many munici-
palities lack specialists capable of preparing project applications properly; in
administering them, there is a problem of general project financing. Sometimes,
the financial support goes to the economically stronger municipalities.
In Lithuania, municipalities can have assets and property. The main law
defining municipal assets is the Act on the Management, Use and Disposal of
State and Municipal Assets (12 May 1998 – No VIII-729). The activities of
enterprises whose assets, as per the property law, belong to the municipality are
regulated by the State and Municipal Companies Act.
The Institute of Lithuanian Municipal Assets was established in 1998, with
the implementation of the Law on Transfer of State Assets to Municipalities. In
accordance with this law, municipalities received an important group of assets,
like the stocks of former public companies, state property managed by munici-
pal institutions as well as assets that the municipalities managed under the right
of trust; municipal buildings, sport buildings and equipment, movable property
and financial funds managed by self-government institutions, etc.
Municipal assets are classified as tangible fixed assets, intangible assets,
and financial assets.
Municipal tangible fixed assets are comprised of:
– land, buildings and infrastructures, facilities and other items of immovable
property belonging to a municipality by right of ownership;
– movable and immovable cultural property and monuments of local sig-
nificance belonging to a municipality by right of ownership; and
– other tangible fixed assets.
On the other hand, municipal intangible assets are comprised of:
– the objects of heraldry belonging to a municipality; and
– patents and licences, as well as rights derived from the same, state certifi-
cation marks, technical design documents, information processing soft-
ware and results of intellectual activities.
Finally, municipal financial assets are comprised of:
– the monetary resources of a municipal budget derived from taxes, levies
and other fees in accordance with laws and other legal acts;
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the municipal territory, and for all the local residents. The bodies of the State
administration are forbidden to limit the authority of local authorities, except in
the cases foreseen by law. The decisions of the municipal council regarding lo-
cal taxes, as well as the regulations approved by the council, are enforced
throughout the municipality, and all organisations, institutions, firms, citizens
and physical or legal persons in the municipal territory are obliged to respect
them. Municipalities have the right to take all measures to ensure that the gen-
eral territorial plan and all other subordinated planning instruments are fully
implemented. They have also the right, either independently or through the As-
sociation of Lithuanian Municipalities, to take part in proposing legislation on
different aspects of local self-government.
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this way, countries that do not have influence at the primary stage of decision-
making have considerable impact. In its effort to represent properly the inter-
ests of self-government during Lithuanian integration into the E.U., and in hop-
ing to influence as soon as possible all decisions important to local
self-government in the institutions of the European Union and the Republic of
Lithuania, the Association of Lithuanian Municipalities had (and still has) a
permanent representation in Brussels. This presence provides an opportunity to
inform the municipalities quickly and «from the inside» on E.U. development
plans and their consequences upon Lithuanian self-government; it also allows
them to influence decisions made in E.U. institutions in the spheres that will be
important to local self-government. This allows developing relationships with
the Committee of the Regions, strengthening relationships with various interna-
tional organisations and to coordinating actions with other organisations that
represent local self-government in other E.U. countries.
On the other hand, local government participates actively in the implemen-
tation of the projects of E.U. structural funds, the beneficiaries of which are the
residents of municipalities. The municipalities prepare and present the projects;
when these are approved, the Ministry of Finance distributes the E.U. funds.
For instance, for 2007-2013, it is foreseen to implement a total of 174 projects
on self-government transport, which will be provided with 428 million Litas
(approximately 124 million € (1.00 EUR = 3.45 LTL)) of E.U. support. Funds
for the projects of regional transport infrastructure are distributed equally ac-
cording to certain criteria, e.g., total miles comprising a region’s road network,
the number of registered transport vehicles, etc.
409
diana šaparnienė - aiste lazauskienė
Andriulis, V. & Maksimaitis M.: Lietuvos teisės istorija. Vilnius: Justitia, 2002.
Jankauskas, K.: Teritorinių bendruomenių savivalda Lietuvoje: konstituciniai
imperatyvai ir jų įgyvendinimas ordinarinėje teisėje // Lietuvos konstitucinė
teisė: raida, institucijos, teisių apsauga, savivalda. Vilnius: Mykolo Romer-
io universitetas, 2007.
Lietuvos teisės pagrindai, Vilnius: Justicia, 2004.
Mačiulytė, J. & Ragauskas, P.: Lietuvos savivalda: savarankiškos visuomenės
link? Vilnius: Versus aureus, 2007.
Savivaldos institucijų socialinis politinis veiksmingumas. Vilnius: Mykolo
Romerio universitetas, 2006.
410
Chapter 17:
LOCAL GOVERNMENT IN LUXEMBOURG*
Jean-Mathias GOERENS
*
Translation from the original manuscript in French by Angel-Manuel Moreno.
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As said above, the only true local authorities in Luxembourg are the mu-
nicipalities (Municipalités in French, Gemeng in Luxembourg language).1
Therefore, the Grand Duchy of Luxembourg does not have intermediate politi-
cal structures, such as provinces or regions. The municipalities are thus the only
territorial structures next to the State.
Following a process of municipal merging that has taken place during the
last decades, the number of the municipalities has been reduced from 126 to
106. Spread over a national territory of 2.587 km2, Luxembourg municipalities
are, in average, of very limited extension, and their population varies from
about 300 to 100,000 inhabitants (in the case of the City of Luxembourg). The
effort of merging municipalities, that has been encouraged by the Government,
tends to attain the objective of having no more than thirty municipalities, with
an average population remaining around 3.000 inhabitants, as this figure should
meet a criterion of critical mass which allows an optimal management of the
local community.
The structure of municipalities includes the city council (Gemengerot),
which is a deliberative body, and the executive body, represented by the «col-
legiate body» or board of the mayor and the aldermen (Schefferot), although
certain attributions belong exclusively to the mayor (Buergermeeschter).
The members of the municipal council are elected by universal ballot for
a term of 6 years. The Mayor and the aldermen are appointed among the
elected members: the mayor is formally appointed by the Grand Duke, and
the aldermen are formally appointed by the Home Secretary, on request of the
majority of the elected representatives. Both the mayor and the aldermen are
responsible in front of the council, that is, the elected assembly (see below,
point 5).
The municipalities are equal in rights and competences. The name of
«Ville» («city»), which is used by some municipalities, is purely honorary and
does not confer any special status. At present, out of 111 municipalities, 12
carry the title of «city» (ville). The «cities» (villes) do not benefit from a re-
gime different from simple «municipalities», with the only exception that the
city of Luxembourg (the capital of the country) has a direct communication
with the Ministry of the Interior, and does not need to go to the Police Com-
missioner of the district, as the rest of municipalities do. Moreover, the city of
Luxembourg, as the capital of the country, enjoys a special financial endow-
ment granted by the State.
1
The reform of 1988 did not modify this aspect.
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for what concerns property, health, security and the quietness in streets and
public places and buildings».
On the other hand, Chapter XI of the decree of August 16-24th, 1790, on the
judicial organization, at section 3, provides that the goals entrusted to the mu-
nicipal bodies are:
1. All tasks relating to the safety and the convenience of transit in streets,
places and public roads; the cleaning, the lighting, the collection of gar-
bage, the demolition or the repair of the buildings threatened by collapse;
the banning of everything risking to fall from windows or other parts of
buildings, or which can hurt or damage the passers-by, or cause harmful
exhalations;
2. Punishing the offences against the public tranquillity. Preserving the
peace and the public order in open spaces where people gathers, such as
fairs, markets, festivities and public ceremonies, entertainments, games,
coffees, churches and other public places;
3. The inspection of the regularity of foodstuffs which are sold, as to their
weight, measures; and the healthiness of the food offered for public sale;
4. Warning, by the suitable precautions, and fighting against accidents and
disastrous plagues, such as fires, epidemics and epizootic diseases: to
survey and avoid fights and quarrels accompanied with riots in the streets,
tumults incited in the places of public assembly, and excessive noise and
night-assemblies which disturb the rest of the citizens;
5. The care of preventing or remedying annoying events, as well as the
damages caused by harmful or wild animals.
These extremely old decrees confer on the municipalities their compulsory
original missions, namely to manage their territory and their patrimony by
means of their own human and financial resources, and to regulate the commu-
nity life of their citizens in the essential domains that are the hygiene, the secu-
rity and peace. The «original» missions of municipalities, as anchored in the
decrees of the French Revolution, were specified and deepened over time.
On the other hand, the national Constitution entrusts directly certain mis-
sions to the municipalities: the management of their territory and their heritage
(article 107), the regulatory power (article 107), the power to establish munici-
pal taxes (article 107), the registry office, on the civil status (article 108), the
organization of the primary education (articles 23 and 107), and so forth.
Several pieces of legislation have concretized, at different times, the origi-
nal missions of municipalities, and have entrusted them with new responsibili-
ties, either on an exclusive basis, or as functions shared with the State. The most
important of the compulsory missions of municipalities are the following ones:
– Town and country planning, housing and economic development
– Regulatory power and the police
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The «optional» missions of the municipalities are services that the municipali-
ties freely chose to offer to their inhabitants without being obliged to that by the
legislation. These services are useful or pleasant to the population, but not indis-
pensable. The more or less big offer of «additional» services of this kind by a
given municipality depends naturally on the financial resources of the local gov-
ernment, provided that it has first fulfilled appropriately its compulsory missions.
Let us remind that the constitutional legislator, by establishing that the mu-
nicipalities form autonomous communities that manage their assets and their
appropriate interests, has entrusted these local bodies ( autonomous vis à vis the
central power), with the management of all the local interests. For that purpose,
the Constitution has recognized them the power to create the public utilities that
they consider necessary. The Constitution, by planning a supervision of the
municipal management by a superior authority, wanted to ensure the respect of
the Law and the protection of the general interest against the harmful slowness,
the excesses and the encroachments of of local bodies.
A non-exhaustive enumeration of these optional tasks would include, at
least, the following ones:
– musical education
2
The Municipal Act obliges the municipalities to have, each to her or to some a brigade of
fire and rescue. With the exception of the City of Luxembourg, which has a professional service,
the fire brigade is assured by volunteers’ bodies organized by and in a national federation.
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– sport
– tourism infrastructures
– public transportation: public transportation is organized, in the munici-
palities of the South of the country, by an association of communes. In
other municipalities, public transportation is ensured by their own means.
The city of Luxembourg, where transports are organized by the municipal
service of buses, the service is ensure by contracting private firms.
– infrastructures for child care
– infrastructures in favour of the youth and for the elderly
– cultural infrastructures such as theatres, museums, cultural centres, etc.
As far as their budgetary possibilities do allow it, the municipalities, beyond
their compulsory missions, can thus implement specific policies, according to
their appreciation of opportunity.
The practical importance of these «optional services» is considerable, be-
cause, by means of these additional missions, the political choices and the ini-
tiatives of the local bodies can be duly implemented. Among the possible
choices of optional services to be offered, the municipalities are often guided
by the policies of the State, which has a more or less big financial participation
in the required investment in various services. This State policy is usually de-
termined in a legal framework, which defines the conditions and the forms of
granting the subsidies.
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However, many works cannot be duly executed by local bodies only with
the help of the municipal staff, in particular construction projects, due to their
scale and their technical specificity. This is why municipalities consider prefer-
able to ensure the provision of certain local services by making a contract with
a specialized firm. In order for a municipality to have recourse to the private
sector for the execution of certain missions, the law requires a regime of public
procurement, (marchés publics, in French) with public notices and open calls
and competitive procedures (appel d’offres).
Finally, it is advisable to mention in the present context that certain munici-
pal missions are taken care by public bodies (called établissement publics in
French), which are placed under the supervision of the municipalities. These
municipal bodies are municipal services, endowed by the law with the legal
personality and enjoying certain autonomy, under the supervision of the mu-
nicipalities and with the administrative supervision (tutelle) of the central Gov-
ernment. Examples of such municipal public bodies are the offices of social
services, the old welfare offices and the civil hospitals.
Therefore, the law offers different possibilities to municipalities in order to
execute their missions. They can choose to provide a given service: (a) with
their own means and resources; (b) by having recourse to the private sector and
signing a contract with a firm; (c) in association with the State; (d) in associa-
tion with one or several other municipalities; (e) by establishing specific public
entities. It is up to the municipal authorities to decide, for every mission en-
trusted to them, which is the most suitable manner or technique to execute it.
The Act of February 23rd, 2001, concerning the associations of municipali-
ties, allows municipalities to join in the form of an association of municipalities
(in French, syndicat de communes), with the aim of carrying out works or serv-
ices of municipal interest. The Act sets in detail the functioning of these associa-
tions of municipalities, and specifies the conditions required to create such an
association, those required to adhere to an existing association and those require-
ments to withdraw from an association. The Act also regulates the procedure for
dissolving an existing association. These associations have the legal nature of
public bodies, vested with legal personality. At the moment, the number of as-
sociations of municipalities rises to approximately 70 in the whole country.
Other forms of collaborative schemes are governed by specific laws and
regulations. Thus:
(a) Article 25 of the law of May 21st, 1999, on town and country planning,
establishes that, within a given region, several municipalities can decide
to create regional associations of communes, having the mission to en-
sure the follow-up of the regional main plans, and to participate in their
implementation.
(b) The law of August 10th, 1993, on natural reserves, authorizes the State
and the affected municipalities to establish specific associations for the
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The City Council is the deliberative body of the municipality and finds its
legal basis in article 107 of the Constitution, which states that in every munici-
pality there is a city council, elected directly by the inhabitants of the munici-
pality. The conditions to be a voter or to run for office are settled by the law. On
the other hand, the law establishes the composition, the organization and the
attributions of the different organs of the municipality. The constitutional pro-
visions have been supplemented by the Municipal Act and by the Electoral law
of February 18th, 2003.
The Act, with regard to the numbers of the inhabitants, determines the
number of city council members (councillors). This number fluctuates between
7 (for the municipalities of less than 1.000 inhabitants) and 27 members (for the
City of Luxembourg). The term of office is 6 years. The elections are based on
a universal suffrage of the voters. The Luxembourg and EU-nationals (if they
do request so) have the right to vote and are eligible, if they are older than 18,
if they enjoy civil and political rights and they are permanent residents.
Non-Luxembourg nationals living in the Luxembourg have been, since the
90’, eligible to the municipal councils, but they could not discharge the offices
of mayor or alderman. The law of February 13th, 2011, which applied for the
first time during the municipal elections held on October 9th of that year, elim-
inated these limitations. Consequently, foreign nationals, no matter if they have
the nationality of a country of the European Union or not, are now eligible if
they have lived at least for 5 years in the Luxembourg. The new law does not
include anymore special arrangements for foreigners as regards their eligibility
3
R. Wilkin: Commentaire de la loi communale, Bruylant, Brussels, 1947.
4
Administrative Court, Ruling number 13407, of December 13th, 2001.
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for the offices of members of the municipal executive, so that they have access
in the same way as Luxembourgers.
The elections follow the majority system in the municipalities having less
than 3.000 inhabitants and the proportional system in municipalities having
3.000 inhabitants at least. As in the majority system, the candidates that are
elected are those who, on every list, obtain more votes.
The Municipal Act (Loi Municipale) of 1988, as regards the functions of the
organs of the municipality, includes a set of powers and competences, and
makes a distinction between the tasks of the city council (which is the delibera-
tive organ) and the tasks of the collegiate body of the mayor and the aldermen,
which is the executive organ par excellence. The competences of the city coun-
cil are determined by the Constitution and by the Municipal Act, to which it is
advisable to add the relevant provisions of the European Charter of Local Self-
Government.
The Constitution, still at article 107, provides that the council establishes
annually the budget of the municipality and approves the accounts. It makes the
municipal regulations except in the case of emergencies. It can establish mu-
nicipal taxes, under the approval of the Grand duke. As for the competences of
the city council, they are enumerated in the Municipal Act as follows:
Art 28: The city council settles all maters that are of municipal interest; it
deliberates or expresses its opinion whenever its deliberations or opinions are
required by laws and regulations, or asked by the superior authority. The de-
liberations of the council are preceded by a public information, whenever this
is established by the laws and regulations, or whenever the council sees it ap-
propriate.
Art 29: The Council enacts municipal regulations and by-laws (…)
Concerning the internal organization of the Municipal Council, article 14 of
the Municipal Act states that «the city council approves its internal by-laws,
which establish how it performs its duties and activities, with due respect to the
Law». Article 15 of the same statute determines that «the city council may set
up advisory committees, whose composition, functioning and competences will
be determined by an internal by-law».
The Municipal Act further specifies the attributions of the city council by
establishing that:
(a) The city council decides all which is of municipal interest; the delibera-
tions of the Council are preceded by an information when it is prescribed
by laws and regulations as well as all the times when the city council the
considers it necessary (art. 28)
(b) the council approves the municipal by-laws and regulations, which must
be communicated to the Home Secretary (at. 29)
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(c) The city council proceeds under the approval of Home secretary to the
creation of any municipal staff position…it appoints and dismisses the
employees of the municipality under the approval of home secretary
(art. 30).
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of municipal regulations and by-laws. Moreover, the collegiate body is the hi-
erarchical leader of the municipal staff. Its powers and competencies are speci-
fied by the Municipal Act and by other pieces of sectoral legislation. Thus, ac-
cording to article 57 of the Municipal Act, the «collegiate body» of the mayor
and the aldermen is in charge of the following duties:
1. the execution of the laws, regulations and orders of the Grand- Duchy
and the Ministers, as far as they do not concern the police;
2. the publication and execution of the resolutions of the city council;
3. the preparation of the affairs to be submitted to the city council as well as
the establishment of the agenda of the council meetings;
4. the administration of municipal establishments and the control of public
institutions placed under the supervision of the municipality;
5. the supervision of municipal services;
6. the management of municipal works;
7. the administration of municipal properties of the municipality as well as
the preservation of its rights;
8. the appointment of municipal workers under the approval of home secre-
tary,
9. the conservation of archives and of the civil status registry.
The institutional figure of the Mayor deservers a special attention. He has
special attributions except those who correspond to him as a member of the col-
legiate body. The Municipal Act, at different sections, provides that the Mayor
holds the following responsibilities. Thus, the mayor:
(a) Is in charge of the execution of the laws and regulations of police under
the supervision of the police commissioner of district. He can delegate
his powers in all or in part, to one of the aldermen.
(b) Performs the functions of registrar; he is particularly in charge of en-
forcing all affairs concerning the register of the civil status (art. 69).
(c) Takes care of the public order in spectacles and entertainments, and can,
in extraordinary circumstances, forbid any show or event, to ensure the
public maintenance of law, order and rest (art. 71).
(d) Signs the regulations and orders issued by the city council and by the
collegiate body (art. 74).
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such positions must respect the rules and regulations established by the na-
tional law on the civil service. It is however possible for municipalities to create
specific staff positions for particular tasks, for which they can define the condi-
tions of access and career development. It should be underlined that, in interest
of the control of the legality, the creation of staff positions and the appointment
of local employees by municipal bodies must receive the approval by Home
secretary (Ministre de l’Intérieur).
The Municipal Act deals with the financial management of the municipali-
ties at several provisions (namely arts. 116, 118, 119 and 124).5
As mentioned above, municipalities have powers to establish taxes, charges
and local royalties, under a final approval by a grand-duchy order. On the other
hand, municipalities participate in the income of certain State taxes and benefit
from particular subsidies for specific activities and projects.
Described roughly, one third of the financial resources of municipalities
come from their «own income», that is, local taxes (like the real estate tax or the
commercial tax)6, charges and fees. Municipalities are also entitled to receive a
certain amount in the tax collection of some State taxes (added value tax, auto-
mobile tax, etc), which is managed by means of a special fund. Finally, local
bodies receive subsidies and transfers from the State, for the realization of par-
ticular projects. Consequently, it can be said that most of the local authority’s
income are not «ear-marked», that is, they are not strictly allocated to specific
purposes. Therefore, local bodies have discretion and freedom to spend their
monies, as long as they exceed the overall costs of the obligatory services.
As regards State subsidies, the central agencies intend to encourage invest-
ments in certain infrastructures such as social, cultural or sport facilities. Sub-
sidies may vary as the projects have a local, regional or national scale.
With the aim of ensuring a proper balance between the financial potential of
the several municipalities (a potential that might be very variable, in particular
because of the fluctuations in the resources resulting from the commercial tax),
the law has established a system of financial adjustment or «equalization»
5
The local authority establishes an annual budget, including all the incomes and expenses to
be made during the financial year for which it is voted (Art 116). The municipal administration
can have access to loans, in order to finance extraordinary expenses (art. 118). The expenses are
divided into compulsory and non-compulsory ones (Art 119). The home secretary may correct
the local authority budget, if it is not in accordance with the law, without prejudice of a judicial
appeal on the part of the municipality (art. 124).
6
This tax is established by the state, but the actual tax amount is determined by each mu-
nicipality.
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7
Art. 105 and 106 of the Municipal Act enumerate the different types of local decisions that
are submitted to the approval of the Grand Duke. Among others, stand the following ones: (1)
the establishment, change or abolition of local taxes; (2) the acquisitions of buildings, if the
value exceeds 250,000 €; (3) some decisions dealing with the assets and the patrimony of the
local authority (alienations, exchanges, leases, sales, etc.); (4) prices and charges for several
local services, such as the provision of drinkable water, gas or electricity; (5) construction
projects, demolition of municipal buildings, if the value exceeds a given amount (currently
250,000 €).
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official whose profile will be addressed later.8 In case of denial of the requested
approval, that decision must be motivated.
In all cases, the Municipal Act grants the local authority which is affected by
a measure of annulment, or by a refusal of approval of a decision, the right to
file a judicial appeal before the administrative courts (art. 107).
A form of directly binding supervision («tutelle») is represented by the pos-
sibility of appointing a special commissioner (commissaire spécial) in some
cases, when the local authority still wishes to keep its decision, in spite of the
annulment or the denial of approval from the Grand Duke. In those cases, the
special commissioner may be instructed by the central authorities to enforce the
administrative decision, at the expenses of the concerned local authority. This
type of measure, though, is extremely rare. Like the other decisions taken by the
central authorities in this field, the decision to appoint a «special commissioner»
may be appealed by the affected municipality in the administrative courts.
Still in the domain of administrative supervision («tutelle»), it is important
to describe summarily the office of the «district commissioner» (commissaire
du district) already mentioned earlier.
To begin with, it should be clarified that the Grand Duchy of Luxembourg
is divided into three districts, whose administrative centres are established in
the cities of Luxembourg, Diekirch and Grevenmacher. In every such district,
there is a civil servant, a state employee which is appointed by the Grand Duke
and which holds the title of «district commissioner» (commissaire du district).
Apart from the competences that are conferred on these officials by other
pieces of sectoral legislation, the Municipal Act declares that they hold the fol-
lowing ones:
1°. They watch over the execution of the general and municipal laws and
regulations and report to the superior authority the cases of legal in-
fringements on the part of local authorities under their jurisdiction.
2°. They watch over the preservation of the public order, the safety, the rest
of the population and the public health. In this domain, they may require
the assistance of the police.
3°. They attend the meetings and discussions of the local authority’s bod-
ies, when they consider it relevant.
4°. Local authorities’ administration and their staff are placed under their
immediate oversight. They watch over the manner how the personnel
carry out their duties and obligations.
5°. They watch over the regular administration of the assets and the income
of the municipalities.
8
Some decisions taken by public institutions placed under the supervision of the munici-
palities are submitted to the prior approval of the parent city council.
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ity and measures taken by local authorities may also be scrutinised by the Om-
budsman, whose mission reaches all governmental authorities, at either the
State or local level. The citizen thus has the possibility of addressing the na-
tional Ombudsman when he intends to complain about a case of maladministra-
tion or bad functioning of the municipal authorities in a case concerning him.
As it happens with State administration, the Ombudsman has the power to in-
vestigate the complaint, and to make recommendations.
The question of the compatibility of the administrative supervision («tu-
telle») with the provisions of the European Charter of Local Self-Government
has not been the object of a substantive discussion in the country. Certainly, in
1988, when the new Municipal Act was enacted, there was a discussion on the
said compatibility, but the truth is that the old instruments of the administrative
supervision (rooted in the old Law of 1843) were reproduced, although in a
lighter form. In fact, the parliamentary works on the ratification of the Charter
and the adoption of the new Municipal Act, took place more or less at the same
time. At present, there is not a real discussion on this topic.
According to domestic case law, the controversies about the inter-govern-
mental supervision («tutelle») are rather frequent, but references to the Euro-
pean Charter of Local Self-Government in this litigation are very scattered.
Some decisions, though, may certainly be cited here. For instance, ruling
number 10762C , delivered on October 29th, 1988, by the Administrative Court
(Cour Administrative, the supreme jurisdiction on the subject). In this case, the
court examined an appeal – lodged by the affected town – against a denial of ap-
proval of a local decision on land use management. The court said that the system
of requiring prior approval for some local decisions is compatible with art. 4 of
the Charter, and that the measure of approval, thus the control of opportunity, is
not against art. 8 of the Charter, when the competence at stake is a competence
delegated to municipalities by the legislator. The competence involved in that
case (territorial planning), was a competence of the central government.
In this sense, it has also been ruled by the Administrative Court that: «The
principle of the municipal autonomy enshrined in article 107 (1) of the Consti-
tution is also recognised by the European Charter of local self-government,
signed in Strasbourg on October 15th, 1985, and approved by the law of March
18th, 1987. According to the article 2 of the Charter, «the principle of local
autonomy must be recognized in the internal legislation and, as much as pos-
sible, in the Constitution». It therefore follows from article 2 of the European
Charter of the local autonomy, together with article 107 of the Constitution,
that the autonomy of the municipality is the rule, whereas the submission to the
control of a the superior authority constitutes the exception (ruling of the «Cour
Administrative», of December 11th, 2001 (N 13407C)).
In another case, where a municipality challenged the validity of the supervi-
sory powers of central authorities, the Administrative court declared that: « …art.
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8 of the Charter deals with the «administrative control of the acts of local au-
thorities». In connection with the principle of municipal autonomy, paragraph 1
of the aforementioned article 8 states that «Any administrative control over local
authorities can be exercised only according to the forms and in the cases estab-
lished by the Constitution or by the law». According to paragraph 2 of the same
article 8 «any administrative control of the acts of local authorities aims only at
ensuring the respect of the legality and the constitutional principles». We must
admit that the Constitution, by means of its article 107, paragraph (1), is in the
line with art. 8, paragraphs 1 and 2, of the Charter. Therefore, the arguments of
the plaintiff municipality, according to which the control by the superior author-
ity should not be admitted in this case, must be dismissed» (Ruling of 22.3.2007,
number 22256C).
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ments of the Charter can be claimed in the judicial and administrative jurisdic-
tions, but not in the Constitutional court.
The case law in the matter of local government is plentiful. Therefore, only
some key decisions are quoted below. All the relevant case law may be con-
sulted under www.legilux.lu
In this sense, it would be advisable to cite the following rulings on adminis-
trative supervision (tutelle)9:
1. Measures in the domain of «tutelle» consisting in the overriding or the
suspension of decisions taken by municipal authorities can take place
only for reasons of illegality or on grounds of incompatibility with the
general interest. However, the measures by which central authorities do
approve or disapprove a given local decision may be justified by consid-
erations of opportunity. (CA 29-10-98 (10762C).
2. The approval of a local decision by a central authority must be in princi-
ple «pure and simple», that is, the central authority can not, as a general
rule, add up or modify anything in the local decision. Exceptionally, the
partial approval of an act submitted to the control of the central authority
is allowed, under certain conditions: CA 25-11-97 (9477C); CA 7-4-98
(10562C); CA 12-5-98 (10551C); CA 12-5-98 (10552C).
9
In the following rulings, «CA» stands for Cour Administrative, that is, the administrative
court. «TA», means «Tribunal d’appellation», that is, the appellate court.
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The publication made on the occasion of the 150th anniversary of the Council
of State in 2006 («Le conseil d’état, gardien de la Constitution et des Droits
et libertés fondamentaux»)10 contains a detailed comment of the Constitu-
tion, and also a chapter dedicated to municipalities.
Pierre Majerus’s standard work «L’Etat luxembourgeois» (The State of Lux-
embourg), published by Editpress Esch-sur-Alzette (1990), has a chapter on
municipalities.
For a detailed (although a bit old) treatise on Luxembourg municipalities, see:
Nicolas Majerus, Die Luxemburger Gemeinden, Sankt-Paulus-Druckerei,
Luxembourg, 1963.
Articles on local government may also be found in the bulletins of the Confer-
ence Saint Yves Luxembourg and of the Cercle François Laurent Luxem-
bourg (the main traditional associations of lawyers in Luxembourg) as well
as in the Annals of the Law of Luxembourg (Bruylant, Brussels).
10
The Council of State, the guard of the Constitution and the fundamental rights and Liber-
ties, the Luxembourg.
432
local government in luxembourg
433
Chapter 18:
LOCAL GOVERNMENT IN MALTA
Kevin AQUILINA
Isabelle CALLEJA
https://www.cia.gov/cia/publications/factbook/print/mt.html -
1
https://secure2.gov.mt/localgovernment/legislation?l=1
2
435
kevin aquilina - isabelle calleja
Under the Act, it is provided that: «The Council shall be a statutory local
government authority having a distinct legal personality and capable of enter-
ing into contracts, of suing and being sued, and of doing all such things and
entering into such transactions as are incidental or conducive to the exercise
and performance of its functions as are allowed under the Act.» The Mayor is
the political head of the Council and this figure will be presented below (see
point 5).
Local government at its inception was characterized primarily by the slow
decentralization of administrative functions. Through a number of amendments
made to the Act the competencies of local government however have grown,
and it has now acquired legislative and judicial powers.3 Local councils are now
empowered to make by-laws and to take decisions that affect their locality.4
In 2001 local councils were accorded constitutional recognition and Act No.
XIII of 2001 (an Act to amend the Constitution of Malta), was published.5 With
effect from this date, through Article 115A, the Constitution of Malta provides
that: «The State shall adopt a system of local government whereby the territory
of Malta shall be divided into such number of localities as may by law be from
time to time determined, each locality to be administered by a Local Council
elected by the residents of the locality and established and operating in terms
of such law as may from time to time be in force.»
The Office of the Prime Minister is presently responsible for legal control of
local government activities. A monitoring unit has been set up within the De-
partment of Local Government to check compliance with existing laws and
more particularly with the Act. The Director of local government may at any
moment require any Executive Secretary to produce accounts and records. By
virtue of a legal notice issued in January 2006, council members can now be
held personally responsible for fraud.6
As a general assessment of the situation, it can be said that local councils
have now been operating for over eighteen years and the role of local govern-
ment is becoming increasingly important on the island to ensure the general
health and wellbeing of the citizen. Local council authorities have therefore
pointed to the need for further reform. It is argued that local councils need
greater autonomy. However, this cannot happen without the introduction of lo-
cal taxes, which will enable councils to provide for their own funding. On the
other hand, it would be desirable that the administrative secretaries of the local
councils be selected and placed under the remit of the local authorities rather
than under other central government, which is presently the case. The role of
3
Refer to the website of the Office of the Prime Minister since Local government falls under
its remit. https://opm.gov.mt/dipartiment-gvern-lokali
4
Act No XII of 1995 (amending the Commissioners for Justice Act).
5
Act No. XIII of 2001 (an Act to amend the Constitution of Malta).
6
DEXIA Sub National Governments in the EU, December 2008, p.473.
436
local government in malta
the new regions also needs to be determined since as yet they are hollow or-
ganisations with no power. Local councils also need to be assisted in order to
perform their role in an optimal manner. One bone of contention in this regard
has been the issue of accessing EU funds though the new 2009 co-financing
mechanism will to some extent mitigate the situation. It is envisaged that a
strengthened local government will raise general standards at the level of the
community.
However, there are several key issues regarding local councils which still
need to be addressed. These comprise: (a) the limited delegation of powers by
central government to local government; (b) the limited powers which local
government has over its own affairs; (c) the fact that local government does not
enjoy taxing powers; (d) the lack of adequate resources put to the disposition of
local government by central government; and (e) the limited law making pow-
ers exercised by central government.
Over the last 18 years, the structures, role and scope of local government in
Malta have become more complex, more defined and enmeshed within the con-
text of government institutions and civil society organizations. The Maltese
political model since 1993 has evolved somewhat from the distinctive two-tier
model of government, though the new tiers subsequently introduced were put
in place for primarily administrative and accounting purposes. The system re-
mains unitary, highly centralized with power located at the centre. Power rests
primarily with the Prime Minister and the Cabinet. Central Government con-
sists of a number of Ministries. Their number and their combination of compe-
tencies have tended to change over time. Presently there are nine ministries.7 At
the local level there are local councils which as previously stated fall under the
remit of the Department of Local Government (Office of the Prime Minister).
Local councils, in accordance with administrative exigencies, were divid-
ed into 68 administrative units, the largest local council being B’Kara with
22,000 inhabitants and the smallest Mdina with 349. The number of coun-
cilors were to vary with the size of the population, the smallest number being
5 the largest being 13. Of these councils 54 councils are found in Malta, and
14 are to be found in Gozo.8 These form the most basic form of local govern-
ment and there are no intermediate levels between these councils and the na-
tional level. Having said this, local councils were originally subdivided into 3
7
Office of the Prime Minister, Ministry of Foreign Affairs, Ministry for Gozo, Ministry for
Infrastructure, Transport and Communication, Ministry for Resources and Rural Affairs, Minis-
try for Education, Culture, Youth and Sport, Ministry for Social Policy, Ministry for Finance the
Economy and Investment, Ministry for Justice and Home Affairs.
8
No. DOI -PR 0713.
437
kevin aquilina - isabelle calleja
regions. These regions and districts as previously stated were not however
levels of government, they were introduced to merely serve statistical pur-
poses, and had no administrative role.9 In 2002, joint committees were added
to regions and districts.
This system was simplified with the Local Council Reform of 2009. Under
the new legislation, the nine Joint Committees, the six districts and the three
regions were to be phased out and the concept of Regional Committees was
introduced. The sixty-eight local councils would now fall into five Regional
Committees mainly: the Gozo Region, the Northern Region, the Central Re-
gion, the South Eastern Region and the Southern Region, as laid down in the
revised Act.10 However, to ensure a smooth running of the Regional Commit-
tees, these began initially to be operated in parallel with Joint Committees.
According to a government directive (DLG 12/2010)11 the regional commit-
tees are a new level of government operating above that of local government.
Their responsibilities are devolved or delegated to them by the Minister when
the latter believes that these organizations have the resources and competency
to take on these responsibilities. They can also be delegated responsibilities by
the local councils of the region. As yet is it unclear what the responsibilities
and competencies of these regions are, however it is clear that presently they
lack any formal legislative, political or administrative role. The members of
each regional committee are the mayors of local councils that fall under that
committee.
The local councils reforms of 200912 also introduced the concept of admin-
istrative committees (also referred to as «hamlets» of «mini councils») answer-
able to the local council. 16 localities which were either distant from the centre,
or which had particular needs, were given administrative committees. These
committees each have five members – which, in some cases, amounts to the
same number of councillors on the local council – and are elected by popular
vote.13
On the other hand, local government has also been given a judicial arm with
the introduction of «Local Tribunals» in 2000. They are used to deal with judi-
cial matters of a local nature. They are presided over by Commissioners for
Justice who are appointed in the same way as other members of the judiciary.
There are nine tribunals in Malta. This division overlaps with that of the joint
committees. These tribunals deal with the following contraventions; motor ve-
hicles and road safety, sanitation, hygiene and cleanliness, environment, com-
mercial activities and licenses.14
9
http://districts-of-malta.co.tv/#Malta_Statistical_Districts_and_Regions
10
https://secure2.gov.mt/localgovernment/regional_committees?l=1
11
https://secure2.gov.mt/localgovernment/regional_committees?l=1
12
An Act to amend the Local Councils Act, Cap. 363.Act No XV1 of 2009 clause 30
13
Refer to LN 54/2010, 82/2010, 311/2010, 43/2010
14
https://les.gov.mt/tribunalinfo.aspx
438
local government in malta
Malta signed the Council of Europe’s ECLSG on 13 July 1993 and ratified
it on the 6th September 1993. The Charter came into force in Malta on 1 January
1994. Malta made no reservations to the Charter but entered a declaration
wherein it was stated that Malta was bound by 25 articles of the said interna-
tional treaty, the most important provisions of it. As for the legal force of the
Charter in the domestic legal order, it is important to point that Malta is a dual-
ist state and hence for the Charter to have legal force it has to be incorporated
into Maltese Law. Unless this happens, Malta is bound by the provisions of the
Charter only at an international level.
The Charter’s provisions have been incorporated into Maltese Law, in two
laws: the Constitution of Malta and the Act. The incorporation of article 4 is
described here, while the incorporation of other provisions will be discussed at
other points of this contribution.
Thus, article 4 of the Charter has six paragraphs, which have all been incor-
porated into Maltese Law. For instance, paragraph 1 states that the «basic
powers and responsibilities of local authorities shall be prescribed by the con-
stitution or by statute» and that «powers and responsibilities for specific pur-
poses» may be attributed to local authorities. It is article 33 of the Local Coun-
cils Act which sets out the functions of local councils and article 34 of the Act
sets out their rule-making powers. Moreover, special laws also attribute other
functions to local councils such as the Commissioners for Justice Act (Chapter
291 of the Laws of Malta) and the Private Guards and Local Wardens Act
(Chapter 389 of the Laws of Malta). Paragraph 3 requires the exercise of pub-
lic responsibilities «by those authorities which are closest to the citizen.» Cen-
tral government should, as far as possible, decentralize its powers and devolve
15
For a description of this bodies and of the constituent local authorities, see: https://les.gov.
mt/descriptionles.aspx
16
For a description of this bodies, see: Demographic Review 2009, National Statistics Office
Malta (web)
439
kevin aquilina - isabelle calleja
them upon local government. This is in fact was has been happening in Malta
since the enactment of the Act in 1993 even if there is still a long way to go to
give full effect to this provision. Since then their functions have been to in-
crease incrementally and the more time passes the more does central govern-
ment continue to devolve its powers thereupon. Article 33 of the Act was
amended in 1999, 2005 and 2009. Each time it was amended more functions
were devolved upon local councils. Paragraph 4 mandates central government
to give full and exclusive powers to local authorities and when restrictions are
imposed, these limitations have to be provided by law. Although the Act does
impose some limitations on the exercise of powers by local authorities, such
restrictions are established by law.
Lastly, article 4, paragraph 5 of the Charter allows the delegation of powers
by central government to local government whilst permitting the latter to adapt
the exercise of these powers to local conditions. One such instance of delega-
tion of powers is article 9 of the Environment and Development Planning Act
(Chapter 504 of the Laws of Malta) which allows the Malta Environment and
Planning Authority to delegate its powers, including its enforcement powers, to
local councils.
440
local government in malta
Southern Region (15 localities); South Eastern Region (14 localities); and Gozo
Region (14 localities).
Apart from the Local Council Act, various subsidiary laws have been made
under this law to give further effect to its provisions. This subsidiary legislation
– which at the moment of writing counts to one hundred and fifty-four separate
and distinct subsidiary laws – comes in three different forms: (a) Regulations;
(b) Orders; and (c) Bye-laws.
In terms of the Act:
– Regulations are made by the Minister responsible for local government,
the Minister responsible for finance and by the Director of the Department
for Local Government17;
– orders are made by the President of Malta and the Minister responsible for
local government18;
– bye-laws are made by local councils though the Minister responsible for
local government19 (article 35(7) of the Act). Regions and communities do
not have the power to make bye-laws.
It is important to note that the capital city of Malta, Valletta, is not accorded
any special status at law even though it is on UNESCO’s World Heritage List.
17
Among the most important regulations, stand the following: S.L. 363.01 – Local Councils
(Financial) Regulations; S.L. 363.03 – Local Councils (Tendering) Regulations; S.L. 363.06 –
Local Councils (Association) Regulations; S.L. 363.12 – Local Councils (Procedures) Regula-
tions; S.L. 363.20 – Local Councils (Human Resources) Regulations; S.L. 363.147 – Mayors and
Local Councillors’ Allowance Regulations; S.L. 363.149 – Administrative Committees for Com-
munities Regulations; S.L. 363.150 – Local Governance Board Regulations.
18
Among the most important orders stand the following:S.L. 363.13 – Local Councils (Del-
egation of Functions) (Police Licences) Order; S.L. 363.41 – Local Councils and Regional Com-
mittees (Delegation of Enforcement) Order; S.L. 363.140 – Delegation of Administration of Fa-
cilities to Local Councils Order.
19
By-laws deal with a plurality of matters such as the regulation of skips, advertisements on
street furniture, advertisements on the internet, organisation of courses, hire of property, use of
facilities and control of pigeons.
441
kevin aquilina - isabelle calleja
is thus exercised through by-laws. The Act also provides in article 36 for penal-
ties for contravention of by-laws. Local councils also have the power to offer
«for tender or for quotations any works, goods or services related to its func-
tions or the transfer of any land (article 40 of the Act). Local councils also
choose their premises (article 48 of the Act). Local councils can also enter into
twinning arrangements (article 79 of the Act). 58 such agreements have been
signed as on 22 February 2011. On the other hand, local councils are not au-
thorised to expropriate private property nor to levy taxes. Nor can they have
broadcasting facilities (article 77 of the Act). Nor do they process and/or ap-
prove development permission applications – such powers still vest in the Mal-
ta Environment and Planning Authority.
In terms of article 3(2) of the Act, a local council is prohibited by law to: (a)
borrow or lend any monies except with the authority in writing of the Minister
with the concurrence of the Minister responsible for finance; (b) enter into any
form of commercial partnership in furtherance of its functions or otherwise,
unless authorised to do so in writing by the Minister; and (c) delegate any of its
functions in a manner other than that established by or under the Act. A Local
Council may enter into public private partnerships both with the private sector
or with nongovernmental organisations, following approval by the Department
for Local Government, the Minister responsible for finance and the Minister
responsible for Local Government where such partnership benefits the resi-
dents of the locality.
The competences and responsibilities which local councils are obliged to
deliver under the law are set out in article 33 of the Act. Since a full an exhaus-
tive enumeration of these is not feasible here for reasons of space, some of them
are here listed:
(a) provide for the upkeep and maintenance of, or improvements in, any
public street or footpath, including patching and resurfacing but not re-
construction;
(b) provide for the collection and removal of all refuse from any public or
private place, for the maintenance of cleanliness and for the upkeep and
maintenance of all public conveniences, dustbins and other receptacles
for the temporary deposit and collection of waste; and to ensure that
these are accessible to all persons, including persons using a wheel-chair;
(c) provide for the establishment, upkeep and maintenance of children’s
playgrounds, public gardens and sport, cultural or other leisure centres;
(d) administer local libraries and to ensure that these are accessible to per-
sons using a wheel-chair;
(e) provide and maintain proper road signs and road markings, to provide
for the installation and maintenance of bus shelters, to establish and
maintain pedestrian and parking areas and to provide for the protection
of school children in the vicinity of schools;
442
local government in malta
(f) propose to and be consulted by any competent authority prior to the lat-
ter making any changes in traffic schemes directly affecting the locality;
(g) make recommendations to any competent authority for or in relation to
any planning or building scheme and to be a full participant in any deci-
sion on the naming or renaming of streets;
(h) protect the natural and urban environment of the locality and take all
necessary measures to ensure the more efficient use of energy, good
waste management and climate change initiatives.
All local councils are elected by the residents of the locality in question.
Article 5 of the Act establishes two types of voters: (a) Maltese citizens whose
name appears in the last published Electoral Register and who have not been
convicted of any offence connected with the election of members of local
councils; and nationals of a Member State of the European Union whose
name appears in the last published European Union Electoral Register and
who have not been convicted of any offence connected with the election of
members of local councils. The Act stipulates that local council elections are
to be held every four years by means of the system of proportional representa-
tion using the single transferable vote (article 8(1)). The number of council-
lors for each locality is determined according to the population of the local
authority: from five councilors where the population is under five thousand to
thirteen councillors where the population is twenty thousand or more (article
4(1) of the Act).
The Mayor is the political head of the Council. Until 2008 he was elected by
the councilors.20 However, since the enactment of a 2009 statute,21 article 25(1)
of the Act provides that the Mayor is elected from such Councillor who at the
last local election obtained the highest number of votes in the first count
amongst the candidates of the political party which at such elections obtained
the absolute majority of Councillors in such Council. A similar provision exists
in article 25(2)(a) of the Act with regard to the election of the Deputy Mayor.
20
The 2005 local Council Act amendments changed certain election procedures and the
conditions of the vote of no confidence for the mayor. He can now be removed from office by a
vote supported by at least one third of councilors as opposed to the absolute majority required
before 2005.
21
Act No. XV1 of 2009 http://www.google.com/search?q=ACT+XV1.+2009
443
kevin aquilina - isabelle calleja
His role includes chairing council meetings and he is also responsible for
supervising municipal activities. He is supported in these tasks by the Execu-
tive Secretary who is appointed by the deliberative council, following consulta-
tion with the Department of Local Government. Hired on a three year contrac-
tual basis he/she can only be removed from office or suspended with
ministerial approval. He/she is responsible for the executive, administrative
and financial management of the local council. 22
22
DEXIA Sub National Governments in the EU, December 2008 p471
444
local government in malta
Article 6 Paragraph 1 of the ECSG is concerned with the right for local au-
thorities «to be able to determine their own internal administrative structures in
order to adapt them to local needs and ensure effective management.» This
provision of the Charter is also reflected in Maltese Law. Therefore, human
resources matters are addressed by articles 49 to 54 of the Act and by the Local
Councils (Human Resources) Regulations (Subsidiary Legislation 363.20 of
the Laws of Malta).
Article 49 of the Act empowers a Local Council to appoint an Executive
Secretary with the approval of the Minister responsible for local government,
chosen from amongst public officers (that is, civil servants). Article 50 vests
the power of appointing a Deputy Executive Secretary in the Local Council.
The duties of the Executive Secretary are also listed in article 52 of the Act and
the same provision states that «The Executive Secretary shall be the executive,
administrative and financial head of the Council.» In addition, in terms of arti-
cle 53 of the Act, the Local Council appoints its own employees. These em-
ployees are recruited through the Employment and Training Corporation. In
other words, such additional staff need not necessarily be public officers (i.e.
civil servants). In terms of article 47 of the Act, local councils may «appoint
Committees for the purpose of assisting the Council in the execution of its func-
tions» and in terms of article 37 of the said enactment, «two or more Local
Councils may discharge their functions jointly» and hence may appoint joint
committees.
Regulation 4(2) establishes the remuneration payable to an Executive Secre-
tary at a par with public service scales 5, 6 and 7. Executive Secretaries may, at
the discretion of the Council, also receive an annual performance bonus not ex-
ceeding 10% of their salary. The criteria for the award of such performance bo-
445
kevin aquilina - isabelle calleja
nus are set out in regulation 6(2). The salary of the Deputy Executive Secretary
is established in regulation 7. Training is regulated by regulation 35 of S.L.
363.20 and article 80(e) of the Act (the latter provision obliges the Director of
the Department of Local Government to «provide training for Councillors and
for Local Council employees»). Remuneration and career prospects, including
conditions of employment, are regulated by the provisions of regulations 8 to 34.
Art. 6, paragraph 2 of the ECLSG expresses the need for local authorities «to be
able to recruit and maintain a staff whose quality corresponds to the authority’s
responsibilities.» This provision also finds a counter-part in Maltese local govern-
ment legislation where it is provided in article 53(1)(a) of the Act that a local coun-
cil may employ «not more than one person per two thousand five hundred resi-
dents» although, where the population of a locality is less than the said number, the
Council can employ up to two employees. Paragraph 2 of the Charter further pro-
vides that «adequate training opportunities, remuneration and career prospects» are
to be provided to these employees and that their conditions of service are to «per-
mit the recruitment of high-quality staff on the basis of merit and competence.»
These matters are dealt with not in the primary law but in regulations made under
article 53(2) of the Act. The relevant regulations are the Local Councils (Human
Resources) Regulations (Subsidiary Legislation 363.20 of the Laws of Malta).
Local councils, however, have restricted powers to select and manage their
own human resources as a lot depends on the competent Minister’s decision.
The appointment of the Executive Secretary is made by the Local Council. But
the Minister responsible for local government has to endorse the Council’s ap-
proval (article 49(3)). An Executive Secretary may be removed or transferred
from one Council to another by the Minister (article 49(6)). In terms of regula-
tion 14 of Subsidiary Legislation 363.20, other personnel may be appointed by a
local council to carry out clerical, technical or other duties. All appointments in
the service of the Council are made on a three-year contractual basis, which may
be renewed for successive periods of three years (regulation 24 of S.L. 363.20).
Malta has only ratified in part art. 9 of the ECLSG, which deals with finan-
cial resources of local authorities: only paragraphs 1, 2, 7 and 8. Therefore,
Malta is not bound by Article 9, paragraphs 3, 4, 5 and 6 of the Charter.
Local councils have very limited monetary resources, consisting mainly of
a budget which is allocated to them by central government. In 1994 they were
allocated 6.3 Million Maltese liri. In 2007 their allocation had grown to Lm
10.25 million.23 The financial allocation for 2008/9 was 23,969,000 €.24 In
23
Ibid. under the subheading Department for Local Government.
24
National Audit Report Public Accounts 2009.
446
local government in malta
2011 the financial allocation to local government was 30,010,000. The finan-
cial allocation for 2010 was identical to that of 2011.25 Local government has
complained that in 17 years the amount has only doubled and in the last year
has actually fallen when seen in terms of inflation. Local councils are not em-
powered to collect their own taxes, and they can only raise loans with the con-
currence of central government. However they have the right to raise funds and
they may charge fees for municipal services.26 All in all Local councils have
very limited financial and decisional autonomy. Though local councils do not
participate directly in national economic planning, they do engage in research
and development and advise the government on certain policy areas including
sustainable development and environmental issues. However according to
Pace27 in 2006 only 2% of these projects were implemented at this level. Those
local councils that come up with research and development projects have to
apply for additional funds and such funds must get the approval of parliament.
In 2006 Malta devoted 0.6% of its GDP or 1.5% of public expenditure on local
government. In 2011 this remains the case and is amongst the lowest expendi-
ture in Europe.
25
https://secure2.gov.mt/localgovernment/local-finance?l=1
26
Local Council Act Chapter 363.
27
Pace, L. (2009). ERAWATCH research inventory report: Malta. European Communities
http://cordis.europa.eu/erawatch [retrieved March 30, 2009].
28
http://www.cbs.nl/en-GB/menu/themas/macro-economie/publicaties/artikelen/
archief/2008/2008-2624-wm.htm?Languageswitch=on
29
The Local Government System in Malta www.clgf.org.uk
447
kevin aquilina - isabelle calleja
For what concerns the financial structure of local government in malta 2005-
2006, the total local government spending for 2005/2006 was LM11.8m
(US$40.2m).
The main items of expenditure were:
1. Operations and maintenance 41%
2. Purchase of fixed assets 31.4%
3. Administration and other expenditure 17%
4. Personal emoluments 11%.30
On the other hand, article 59(1) of the Local Councils Act empowers local
councils «to discuss a three year plan on council operation, projects and finances
so as to provide a framework for the Council’s annual budgets.» It is thus the
council which decides on how to spend the monies allocated to it. Paragraph 2
stresses the adequacy of the financial resources allocated to a local council which
have to be «commensurate with the responsibilities provided for by the constitu-
tion and the law.» The Eight Schedule to the Act ensures that the said allocation
is worked out depending on the functions which local councils are required by
law to carry out. Paragraph 7 stipulates that «grants to local authorities shall not
be earmarked for the financing of specific projects.» As a matter of course, the
local council is allotted a lump sum of money and then it is the local council
which decides how to spend that sum on the basis of to its three year plan. The
local council approves its annual budget. Paragraph 8 allows borrowing for cap-
ital investment granting local councils «access to the national capital market
within the limits of the law.» This matter is dealt with by Part XIV of the Local
Councils (Financial) Regulations (Subsidiary Legislation 363.01).
The lack of funding for local government in Malta and its inability to raise
additional revenues was stressed by the Council of Europe’s Chamber of Local
Authorities, in a monitoring report on Local Government in Malta released in
March 2011.31 The report recommended that «given the importance of local
taxation for the development of a system of responsible local self-government,
the Maltese authorities are again invited to introduce such a system and in order
to overcome the objections to local taxes, and in order to train municipalities to
deal with taxation issues, the Maltese authorities should consider, as a first step,
the possibility of transferring some state taxes to local authorities.»
30
Ibid.
31
Chamber of Local Authorities, 20th SESSION CPL(20)3 1 March 2011, Local Democracy
in Malta, Monitoring Committee Rapporteur: Emil CALOTA, Romania (L, SOC1).
448
local government in malta
In this domain, it is worthwile to see how the provisions of the ECLSG have
been implemented in Malta. To begin with, article 8.1 of the ECLSG requires
administrative supervision of local authorities to be in conformity with such
procedures inscribed in a legislative enactment. The supervision of local au-
thorities, in the case of Malta, is law driven. For instance, decisions of local
councils are subject to investigation by the Ombudsman (see below), in terms
of the Ombudsman Act (Chapter 385 of the Laws of Malta). Even the Act pro-
vides for the possibility for the President of Malta to dissolve a local council
following a recommendation to that effect in a report by a Board appointed
under the Inquiries Act (Chapter 273 of the Laws of Malta). In terms of article
81 of the Act, the Director of Local Government can issue warnings against
local councils which are not carrying out their functions within its responsibil-
ity. The Minister may, according to article 35(4) of the Act, propose amend-
ments in writing to any bye-law adopted by a local council even if the final say
rests with the Council. But in those cases where the Minister’s objection is not
32
https://secure2.gov.mt/localgovernment/delegation-to-councils?l=1
449
kevin aquilina - isabelle calleja
accepted by a local council, the Minister may lodge in writing his/her objection
to the approval of that bye-law. In terms of article 65, the Auditor-General may
appoint local government auditors to audit the accounts held by local councils.
The matter is further regulated by the Local Councils (Audit) Regulations (Sub-
sidiary Legislation 363.02 of the Laws of Malta).
On the other hand, art. 8.2 of the Charter requires supervision of local au-
thorities’ activities to be restricted within the narrow confines of «ensuring
compliance with the law and constitutional principles.» This is the position
with the Act which requires the Director responsible for local councils, for in-
stance, in terms of article 80(a) and (c) of the Act, to carry out his/her duties «in
full respect of the autonomy granted to Local Councils by this Act». However,
administrative supervision may be exercised «with regard to expediency by
higher-level authorities in respect of tasks the execution of which is delegated
to local authorities». Once again, this aspect is also regulated by Maltese Law.
(For instance, article 9 of the Environment and Development Planning Act).
Finally, art. 8.3 of the Charter provides for the application of the proportion-
ality principle when exercising administrative supervision of local authorities.
Although the principle of proportionality is not expressly mentioned in the Lo-
cal Council Act, it can be inferred from article 80(c) of the Act which requires
the Director for Local Government to perform functions «not being incompat-
ible with the autonomy granted to Local Councils» by the Act. Unproportionate
behaviour on the part of said Director will amount to a breach of the principle
of proportionality.
In general, there are three forms of control over local councils in Malta:
legislative, executive and judicial. These comprise both control of legality and
also control of opportunity (on the merits).
In so far as legislative controls are concerned, these are contained in the Lo-
cal Councils Act. As local councils have been established by Parliament, it is
Parliament which can decide to add, reduce or modify the rights, duties, powers
and functions which local councils enjoy under the Act and other laws. Parlia-
ment is thus supreme over local councils. Furthermore, it is Parliament which
approves the appropriation of monies for use by local councils.
In so far as executive controls are concerned, the Minister responsible for
local government is very much involved in the administration of the Act, and
has far-reaching competences in the domain of local government. His functions
are numerous and cannot be fully reproduce for lack of space. Among the most
important competences stand the following: authorising the borrowing or lend-
ing any monies (article 3(2)(a)); authorising local councils to enter into any
form of commercial or public private partnerships (article 3(2)(b)) and (d)); ap-
450
local government in malta
33
Perici vs. Busuttil noe et. v. Busuttil, 22 March 1976 and Joseph Cutajar v. Port Workers’
Board, 24 October 1974; Advocate Anthony P. Farrugia v. Electoral Commission, Court of Ap-
peal, 18 October 1996; Norman Rossignaud v. Gontran Borg noe, Civil Court, First Hall, 19
April 1990. For a review of the Civil Court, First Hall’s residual powers, see W. Ph. Gulia, «The
Residual Powers of the First Hall, Civil Court in Malta» (1978) 9 Id-Dritt Law Journal 56.
451
kevin aquilina - isabelle calleja
452
local government in malta
if a local council fails to perform its functions, central government may entrust
such functions to any department, authority or agency at the local council’s
expense. Finally, the President of Malta may dissolve on the advice of the
Prime Minister a local council.
453
kevin aquilina - isabelle calleja
ecutive Secretary and they may sue and be sued on its behalf even where the
case refers to acts done prior to the commencement of their term of office or
appointment as the case may be.»
Article 38 of the Act grants a local council the right to a judicial remedy when
it provides that: «Local Councils shall have the right to challenge in court any
decision which in any way interferes with the free exercise of their powers grant-
ed by this Act.» This is because a local council is established as a body corporate
by law having a distinct and separate personality. A local council can sue any
person, whether physical or moral (companies, public corporations, foundations,
etc.) and central government as well. Indeed, there have been cases where a local
council has sued a Minister. The right of a local council to protect its interests in
a judicial forum is extended also before quasi-judicial statutory tribunals where,
by and large, the same procedure adopted by a court of law applies.
Malta does not yet have a system of administrative courts but the ordinary
courts of civil jurisdiction have administrative competence. Such is the case
with judicial review under article 32(2) and 469A of the Code of Organization
and Civil Procedure. Furthermore, judicial review of administrative action can
be exercised through the Administrative Review Tribunal established by the
Administrative Justice Act (Chapter 490 of the Laws of Malta) and by several
quasi-judicial statutory tribunals such as the Environment and Planning Review
Tribunal established by article 40(1) of the Environment and Development
Planning Act (Chapter 504 of the Laws of Malta) and the Financial Services
Tribunal established by article 21(1) of the Malta Financial Services Authority
Act (Chapter 330 of the Laws of Malta).
For what concerns constitutional protection of local self-government, the
Local Councils Elections Regulations, 1993 – which form part of the Act – pro-
vides in regulation 116 that the Constitutional Court may inquire into any ques-
tion relating to the right of any person to be or to remain an elected councillor.
Furthermore, regulation 122(1) states that all questions regarding the right of
any person to be or remain a councillor are to be referred to and decided by this
court. Regulation 22(5) provides, with regard to nomination of candidates for
local council elections, that if there is an objection to a candidate, the latter may
appeal therefrom to the Court of Appeal which has to deal with such sworn ap-
plication with the utmost urgency.
The international interests of Maltese local councils are in the first instance
represented by The Local Councils’ Association of Malta (LCA) which was
established by law in 1994. The Association represents all local councils with
454
local government in malta
the aim of protecting and promoting their common interests in Malta and over-
seas, as well as in international associations of local government authorities.
The Association is a juridical body having a distinct legal personality. The LCA
is totally funded by central government.34
The role of the LCA presently is very limited and does not as yet have the
tools to sustain such a role. The LCA is also empowered to represent all local
councils in international affairs and since its inception has attempted to take an
active role in international and regional organisations. Namely, the LCA is in-
volved in selecting the members of the EU Committee of the Regions (herein-
after CoR). The LCA has also been approved as a Supporting Structure with the
European Commission.
Maltese Local Authorities are also part of the Pact of Islands signed by 40 Euro-
pean island politicians on 12 April 2011, making the political commitment to
achieve the 20-20-20 objectives of the European Union for 2020. Five Maltese Lo-
cal Authorities signed the Pact on that occasion. The Maltese Local Authorities
were represented by members of the LCA. This pact is an initiative parallel to the
Covenant of Mayors (on CO2 emmissions reductions and abatement) and was part
of the European Union Sustainable Energy Week. The Maltese Local Authorities
will be assisted in implementing their obligations under the Pact by Paragon Europe,
in the framework of the EU-funded IslePact project which launched the initiative.36
34
http://www.lca.org.mt/pages/iseSinglePages.asp?m=12
35
http://www.lca.org.mt/pages/iseSinglePages.asp?m=43
36
http://www.lca.org.mt/pages/iseFullArticle.asp?id=395 Brussels Press Release 13/04/2011.
455
kevin aquilina - isabelle calleja
37
http://www.lca.org.mt/pages/iseSinglePages.asp?m=42
38
Times of Malta, 28/02/2009.
39
This statement could not be verified.
40
���������������������������������������������������������������������������������
MEUSCA Co Financing fund for local councils: http://www.meusac.gov.mt/fme/749/de-
fault.aspx
456
local government in malta
(A) Books
(B) Papers
Pirotta Godfrey, A.: «A New Creation or an Image and Likeness? The Mal-
tese Experience of Establishing Local Government in a Centralised Micro-
State», Public Organization Review: A Global Journal, Kluwer Academic
Publishers, 1:245-260 (2001).
Frendo, Henry: «Local Government in Malta», in: North/South Local Democ-
racy: the European Charter of Local Self-Government in Action, Malta 14-
16, Studies and Text, No. 54, Council of Europe Publishing
Gulia, Wallace Ph.: «Local Government in Malta», paper presented at the V
General Assembly of the Mediterranean Social Sciences Research Council
held at the American University of Beirut, Lebanon on September 12-16,
1966.
457
kevin aquilina - isabelle calleja
458
Chapter 19:
LOCAL GOVERNMENT IN THE NETHERLANDS
Ine VAN HAAREN-DRESENS
459
ine van haaren-dresens
almost 150 years. In the early days of its existence, there were 11 provinces and
approximately 1,200 municipalities. At present the 11 provinces still exist; a
new one, named Flevoland and consisting of land gained from the sea, was
added in 1986. Over time, the number of municipalities has been brought back
to 418.1 A new Province Act, as well as a new Municipality Act, came into
force in 1994. These statutes were amended fundamentally again in 2006.
The form of government of the (European part of) the Netherlands is that of
a decentralised, unitarian state. This means that, according to the Constitution
1
On 1 January 2011. Source: Netherlands Central Bureau for Statistics, Heerlen (CBS)
http://www.cbs.nl.
2
Preliminary result; 2 March 2011 was voting day for the new provincial councils, and the
turnout was much better than in the 2007 provincial elections (then 46.3%). This can be ex-
plained by the fact that the 2011 elections were considered to be important.
3
Cf: In the 2009 elections for the European Parliament, the turnout was 38.6%, and in the
2010 elections for the Dutch Parliament (House of Representatives), the turnout was 75.4%.
Source: Electoral Council http://www.verkiezingsuitslagen.nl.
460
local government in the netherlands
of the Kingdom of the Netherlands (Grondwet voor het Koninkrijk der Neder-
landen), in addition to the national public authority, there are other public au-
thorities with their own competences and their own constituencies. These other
public authorities have competence for a specific territory or for a specific
function (e.g. water boards). The ones with a general competence to govern
their own territories are those of the provinces (provincies) and municipalities
(gemeenten). In Dutch constitutional law, the State, the province and the mu-
nicipality are considered public legal entities that act through their governing
bodies. The representative governing bodies at the local level are the Provincial
Council (Provinciale Staten) and the Municipal Council (Gemeenteraad or
Raad). The executive bodies for the province are the Board of the King’s Com-
missioner and Provincial Aldermen (College van Gedeputeerde Staten) and the
King’s Commissioner (Commissaris van de Koning), whereas the municipali-
ty’s executive organs are the Board of Mayor and Aldermen (College van
Burgemeester en Wethouders) and the Mayor (Burgemeester).
4
Source: Dutch Central Bureau for Statistics, Heerlen (CBS); http://www.cbs.nl/NR/rdon-
lyres/E502BD0A-CA5B-4273-BA27-BF4058712361/0/2010b55pub.pdf d.d. 15-02-2011.
461
ine van haaren-dresens
autumn of 1990. The act that contained this approval was published on 15 No-
vember 1990 and entered into force the next day. Then the act of acceptance
was deposited with the Secretary General of the Council of Europe, and accord-
ing to its Art. 15, paragraph 3, the Charter came into force for the Netherlands
on 1 July 1991.
The act of acceptance contained a declaration by the Dutch government say-
ing that the Charter would apply to Dutch provinces and municipalities. This
contribution, however, will focus on local government, i.e., on municipalities.
The central government also declared that it considered Art. 9 of the Charter to
apply only to the financial resources of local authorities; this declaration was
meant to ensure that municipalities and provinces could not claim additional
financial support from the State for employment conditions of their staff, as per
Art. 6, paragraph 2 of the Charter.
In addition to the declarations, the Netherlands voiced reservations regard-
ing four paragraphs of the Charter: Art. 7, paragraph 2; Art. 8, paragraph 2; Art.
9, paragraph 5; and Art. 11. In the latter case, it was thought necessary as there
was no general recourse to the judiciary for local authorities. Although there
still is no general right of recourse, in this author’s opinion the reservation
could be abolished, as Dutch law nowadays gives provinces and municipalities
the right to appeal to a judge when a decision concerns their interests. To date,
The Netherlands has withdrawn neither the declarations nor the reservations.
According to Dutch constitutional law, the provisions of a concluded treaty
are part of its legal order. For the applicability of treaties, the system of monism
is followed, meaning that the treaty is adopted in national law and its provisions
are therefore legally binding. The treaty thus has internal effect, so transforma-
tion into national legislation is not required. This system is not laid down in
written law but has been accepted in jurisprudence. All treaty provisions are part
of the Dutch legal order; as national rules, however, not all provisions are of the
same nature. The Dutch Constitution declares that provisions that are univer-
sally binding, i.e., that are self-executing, must be published before they will be
binding. After publication, they have direct effect without any intervention re-
quired of the legislature. Public authorities, whether legislative, executive or
judiciary, must apply them, and citizens can invoke them before a judge. In the
final instance, it is the judge who decides in an actual case whether a provision
has direct effect or not. He can base his judgment on the text, the nature, the
tenor and/or on the history of the clause; the intention of the treaty-making par-
ties can also be taken into consideration, although this intention is not decisive.
Local government has its own chapter in the Dutch Constitution. Chapter 7
contains provisions regarding the position of local public authorities within the
462
local government in the netherlands
Dutch unitarian state. The Constitution says that the regulation and management
of their own «household» is left to the provinces and municipalities.5 In particular,
municipalities were established long before the State was born: they do not take
their competence from attribution or delegation by the Constitution or the legisla-
ture, but have long been entitled to self-government.6 This is the foundation for the
competence that is called the autonomy of local authorities in the Netherlands.
Regulation and management can, in accordance with the Constitution,7 also
be required of local authorities through legislation passed by a higher public
body. Called medebewind in the Dutch judicial system, this «mandated regula-
tion and management» can be a countercheck to autonomy. The term «local
self-government» as used in the European Charter of Local Self-government
refers to both Dutch autonomy and required legislation and management.8
The Dutch Constitution guarantees, as demanded by the European Charter, that
the members of the provincial and municipal councils, which exercise the compe
tence to regulate, are freely elected by secret ballot on the basis of direct, equal and
universal suffrage.9 The Province Act and the Municipality Act correspond to
these guarantees for democratic legitimization; these «organic» statutes also say
that the executive boards of provinces and municipalities, as well as the Queen’s
commissioner and the mayor, are responsible to their respective councils.10 The
Constitution also prescribes that the organisation of provinces and municipalities
and the composition and competence of their boards are regulated by law.11 At
present, these «organic» statutes are the Province Act (Provinciewet) and the Mu-
nicipality Act (Gemeentewet), which came into force on 1 January 1994.12
Both the constitutional competence for autonomy and medebewind are laid
down in the Province Act and the Municipality Act.13 Until 2006, according to
these Acts, primacy in legislation in Dutch municipalities and provinces lay
with the respective councils, whereas the executive management was allotted to
the respective executive boards. In 2006, the «organic» statutes were amended
in order to introduce a more dualistic system in local government. At present,
the council is entrusted with the legislative power, whereas the boards are en-
trusted with the executive power.
5
Art. 124, par.1.
6
E.g., Art. 94 of the Constitution of 1814.
7
Art. 124, par. 2.
8
Art. 4, pars. 2 and 4 for autonomy; par. 5 for medebewind.
9
Art. 129 of the Constitution.
10
Arts. 169 and180 of the Municipality Act.
11
Art. 132, par.1.
12
Stb. 1994, 762 for the Municipality Act; Stb.1993, 668 for the Province Act.
13
Art. 105 of the Province Act; Art. 108 of the Municipality Act.
463
ine van haaren-dresens
Since 1994, the General Act on Administrative Law (Algemene wet bestu-
ursrecht or, abbreviated, Awb) is in force. It contains numerous procedural
provisions that are supposed to ensure good administration. These provisions
apply to all public authorities, of both the central and the local governments, as
well as to private organisations entrusted with public competence.
The Municipality Act, the Province Act and the General Act on Administra-
tive Law are general parliamentary laws. In Dutch constitutional doctrine, there
is no formal hierarchy among parliamentary laws. The Province Act and the
Municipality Act,14 however, declare that specific laws which require regula-
tion and management from provinces or municipalities (medebewind) or which
alter their competence, must correspond with the respective acts, unless a dif-
ference is required by a special public interest. These status provisions are
meant to give the Province Act and the Municipality Act special significance in
relation to other laws.
Dutch local authorities depend on the State for most of their financial means.
The allocation of funds is regulated by the Financial Relations Act (Financiële
verhoudingswet). Notwithstanding legal provisions that must guarantee decen-
tralisation, the principle of «who pays, decides» unfortunately creates strong
dependency of local authorities on the State.
Both the Constitution and the Municipality Act stipulate that the municipal
councils make their own regulations concerning their own local «household».
These regulations are called General Local Regulations (Algemene plaatselijke
verordeningen or, abbreviated, APV); they contain numerous provisions, espe-
cially those on public order and safety. The Association of Dutch Municipalities
(VNG) has made a model APV that individual municipalities can use with all the
amendments they consider necessary in their respective local situations. Whereas
the APV is made on the basis of the autonomous competency of a municipality, in
addition to it, each municipality has many local regulations on specific topics le-
gally based on their delegated competencies or medebewind. These specific regu-
lations concern all areas of local competences and therefore are varied in nature.
Arts. 113 of the Province Act and 115 of the Municipality Act.
14
464
local government in the netherlands
for designating the capital of the country. Amsterdam became the capital around
1800, when Louis Napoleon became King in the Dutch territories. In 1814,
Amsterdam was named capital in the newly-made Constitution. Nevertheless,
in 1815, as a result of the reunification with the southern part of the Nether-
lands, it lost its constitutional status, but Amsterdam remained the State capital.
The importance of the capital is more of a historical, social, cultural and eco-
nomical nature than of a legal one. Amsterdam is not the seat of the Govern-
ment of the Kingdom, either: the Hague houses the Government as well as the
Dutch Parliament. The governmental and the royal status of The Hague have no
legal foundation, either. Nevertheless, The Hague has been the seat of all Dutch
governments since the Kingdom was founded, and even of its predecessors.
15
E.g., Art. 94 of the Constitution of 1814.
465
ine van haaren-dresens
16
Art. 124, par. 2.
17
Arts. 172-174a of the Municipality Act.
18
Arts. 175 and 176 of the Municipality Act.
19
Art. 171 of the Municipality Act.
20
Arts. 115 of the Province Act and 117 of the Municipality Act.
466
local government in the netherlands
21
Government («Crown») decisions of 28 December 1990, Stb. 1991, nos. 25-37.
22
Art. 8 of the Municipality Act.
23
Art. 8 of the Province Act.
467
ine van haaren-dresens
The executive board of a municipality consists of the mayor and the alder-
men. The number of aldermen is 20% of the number of members of the coun-
cil, with some slight variations.26 The executive board of a province consists of
the Queen’s Commissioner and from three to seven provincial aldermen.27 The
aldermen are nominated by the respective council but not necessarily from
amongst its members. The council decides upon the actual number of alder-
men within the mentioned range. If they are council members, they lose their
membership upon their nomination as aldermen. The executive is accountable
to the council because of the democratic basis of the latter. The executive
board and the mayor may delegate the execution of their own decisions to
commissions; the responsibilities for local emergency situations, however,
cannot be delegated.28
The board of mayor and aldermen has executive governing power. Before
dualisation, there was no clear division in power, as de jure all power was as-
signed to the council and the executive board acted as the daily board; the ex-
ecutive board, however, governed the municipality de facto, whereas the coun-
cil controlled the executive board. Dualisation was meant to bring theory and
practice into harmony and make both governing bodies responsible for the
competences explicitly assigned to them.
24
Act of 28 February, Staatsblad 2002, 111 and 112.
25
Art. 156 of the Municipality Act.
26
Art. 36, par. 1 of the Municipality Act.
27
Art. 35a, par. 1 of the Province Act.
28
Arts. 165 and 178 of the Municipality Act.
468
local government in the netherlands
Dutch mayors have always been and are still appointed by the central gov-
ernment. In recent years, the councils’ influence on nominations has increased,
and nowadays they have the legal right to propose two candidates; in general, a
council’s proposal to the Minister of the Interior for the nomination of a candi-
date is decisive. As pointed out already, the nomination of mayors in particular
has been and will continue to be an item of much discussion in both politics and
literature, as it is considered to be old-fashioned and non-democratic. Of course
it would be more democratic to have the mayor elected, either by the citizens or
by the council. Whether this would also improve or at least maintain the quality
of the office is a question that is answered according to the political opinions on
the matter. It can be said that in practice, democratic legitimacy is not really at
stake, as de facto, nowadays, the council’s opinion is decisive. De jure, how-
ever, the central government can intervene.
The mayor is appointed by the central government for a term of six years
and may be reappointed successively for an unlimited number of such terms.
For a reappointment, the council must submit a proposal to the Minister of the
Interior. The dismissal of the mayor by the central government is possible on
the request of the council, if the mayor has lost the confidence of the council.
Of course, a mayor can also resign, or the government can dismiss him or her
on serious grounds other than loss of the council’s confidence; in such a case,
the council will first be consulted.
469
ine van haaren-dresens
a new public body can therefore be instituted.29 In the latter situation, the or-
ganisation and competences of that body as well as those of its boards must be
regulated by a statute that can also attribute regulatory competence to the gov-
erning bodies of the new body, as well as provide for their administrative super-
vision.30
The relevant parliamentary law is the 1994 Act on Cooperation.31 In addi-
tion to cooperation on the basis of the Act on Cooperation, local authorities can
and do cooperate on the basis of private law. The right to cooperate applies to
all types of local authorities. They can cooperate within their own tier but also
with one or more bodies of another tier. The Act on Cooperation stipulates that
the cooperating partners must make their own regulations for each cooperative
arrangement.
As for cooperation based on public law, in the Netherlands there are four
types based on the Act on Cooperation. The first type, the «public body» (open-
baar lichaam), is the strongest, as it has the status of a legal entity. The partici-
pating municipalities can delegate competences, including legislative, to this
body. The Act on Cooperation contains provisions for its organisation and
management. This type is often used for health, employment or environmental
services. The second one is called «joint body» (gemeenschappelijk orgaan).
This governing body is not a legal person and cannot have legislative compe-
tence. Only the competence to take decisions can be delegated. It is often used
for inter-municipal appeal or complaint boards or for cooperation on a single-
issue matter such as housing.
The third type, the «central municipality» (centrumgemeente), can be used
if the cooperating municipalities wish to assign the actual execution of some of
their competences to one of the municipalities. This type of cooperation is used
mainly when partners wish to have civil servants of a larger municipality (i.e.,
the central municipality) act on behalf of the smaller neighbouring municipali-
ties (e.g., for refuse collection or for the management of a public swimming-
pool). The legal basis of the cooperation is that of mandate given by the par-
ticipants to the civil servants of the central municipality. The last type, called
simply «mutual regulation» (gemeenschappelijke regeling) is the agreement on
the basis of the Act on Cooperation with no delegation or mandate of compe-
tences.
Another form of cooperation is a «functional commission» (functionele
commissie). This is based on the Municipality Act and must be instituted by
municipal regulation; competences can be delegated to it by the governing
body to which the competences were originally attributed. These committees
are meant to have competences in a specific area. If two or more municipalities
29
Art. 135 of the Constitution.
30
Art. 135 in conjunction with Art. 134, pars. 2 and 3 of the Constitution.
31
Wet gemeenschappelijke regelingen, Staatsblad 1984, 667.
470
local government in the netherlands
simultaneously make the same regulations and institute the same committees,
they can cooperate de facto. In this author’s opinion, the legal basis for this
form of cooperation is extremely weak, as de jure there are not one but multiple
committees, and there are no legally binding obligations to cooperate.
In addition to cooperation on the basis of public law, local authorities can
also cooperate on the basis of private law. They can institute and participate in
private legal entities such as companies, associations and foundations. Never-
theless, the Municipality Act contains a provision which stipulates that mu-
nicipal boards may participate in private legal entities only if the latter are
considered especially necessary in order to care for the relevant public inter-
est.32 Although there has been considerable jurisprudence regarding the ques-
tion of when a private legal entity may or may not be used, the impression that
most municipal boards still do not apply this provision with great strictness is
not unfounded. It should be noticed that private agreements do not automati-
cally contain provisions for political control and responsibility, whereas the
Act on Cooperation does. It is often be said, and not without reason, that inter-
municipal cooperative arrangements are not very transparent and not very
democratic, as there is no possibility for citizens to vote for the members of the
board of a cooperative entity. Accountability is always directed towards the
founding entities.
32
Art. 160, par. 2 of the Municipality Act.
33
Art. 100.
34
Arts. 107 and 102 of the Municipality Act.
471
ine van haaren-dresens
period of time. The council has had its own secretary and staff only since du-
alisation. All members of staff are subordinate to either the council (in the case
of the staff of the council secretariat and municipal financial auditors) or the
board (all other staff).35 The respective political bodies also decide upon em-
ployee dismissals and make other decisions regarding employees’ positions,
training, job benefits and so on. In practice, especially in the larger municipali-
ties, the highest-ranking civil servants in charge of the respective departments
of the administrative organisation make these decisions. But they can only de-
cide in representation and under the responsibility of the corresponding politi-
cal body once the relevant competences have been explicitly mandated to them.
The municipal council can regulate the administrative structure of its secre-
tariat, just as the executive board can regulate the administrative structure for
the rest of the municipal organisation.36
Both the council and the board of each municipality are obliged to control
the conditions for the employment of their civil servants or hired staff in a mu-
nicipal regulation. Many of these regulations are based on a model designated
by the VNG, the Union of Dutch Municipalities. The VNG also represents the
municipalities in their capacity as employers in the collective bargaining on the
conditions of service; the employees are represented by trade unions. In case of
conflicts with their employer, municipal employees who are civil servants have
recourse to an administrative judge, whereas employees working on contract
basis must approach a civil judge. Employees of municipalities often stay with
their employer for many years, especially if they are also citizens of that mu-
nicipality. Nevertheless, they can also choose to leave and continue their career
elsewhere, either in another municipality or in another type of public or private
organisation.
7.1. Funding
35
Arts. 107e, par. 2 and 160, par, 1 sub d of the Municipality Act.
36
Arts. 107e, par. 1 and 160, par, 1 sub c of the Municipality Act.
472
local government in the netherlands
473
ine van haaren-dresens
Local authorities can impose taxes and charges as these are defined in the
Municipality Act.37 They range from the municipal dog tax and the tourist tax
to those on sewerage, refuse and parking, to charges for building permits, birth
or death certificates or licenses for sidewalk terraces in front of restaurants or
cafes. The most important tax continues to be the municipal property tax.
The central government that came into office after the May 2002 elections an-
nounced in its Strategic Agreement38 that the municipal property tax would be abol-
ished. This tax is the most important and almost the only source of local income,
although it is still a relatively minor amount in comparison to the funds provided by
the central government. As a result, this intention earned much criticism from both
local authorities and academics. Some have considered it a violation of Art. 9,
paragraph 3 of the European Charter on Local Self-government, as it seriously af-
fects local autonomy, since local authorities are free as to allocate their own tax
revenues and hence can make their own political considerations. The municipal
property tax was imposed on owners of real estate (the owner’s part), as well as on
persons using real estate (the user’s part). Under this system, people living or work-
ing in their own home or building paid both, one as owner and the other as user. In
2006, after much discussion, the user part was abolished. Since then, municipalities
have lost about half of the income from property taxation but have been said to be
compensated by an increase in the transfer from the Municipality Fund.
If a municipality wishes to impose one or more of the taxes allowed by law,
those taxes must be defined in a municipal tax regulation made by the munici-
pal council.39 Specific acts can also allow local authorities to impose other tax-
es, such as the ones mentioned in the Municipality Act, e.g., special environ-
mental taxes (or sewerage taxes) or hunting taxes. Municipalities currently
receive more financing from other resources of their own, such as from mu-
nicipal capital and income-providing assets, than from local taxation.
Source: http://www.rfv.nl/default.aspx?skin=Rfv&inc=detail&id=1019&dossier_id=&type=publicatie
37
Arts. 219-229 of the Municipality Act.
38
Kamerstukken II, 2001-2002, 28 375.
39
Art. 216 of the Municipality Act.
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local government in the netherlands
As can be seen in the table above, Dutch local authorities depend on the
State for most of their financing. In spite of the legal provisions that guarantee
decentralisation, the principle of «who pays, decides», unfortunately causes a
strong dependency of local authorities on the State. In recent years, often apply-
ing this principle, the State has had influence on many of the autonomous re-
sponsibilities of local authorities.
In the Dutch legal system, there is not a clear distinction between public and
private ownership of goods, as there is in Germany and France, for example.
Dutch public authorities, both central (the State) and local (provinces, munici-
palities, public water boards) are legal entities40 and therefore can own assets.
There is no special form of ownership for public authorities. Civil law governs
the ownership of their assets.
Administrative law, however, greatly influences the legal status of goods
owned by public authorities, insofar as these goods have a public function, i.e.,
they play a role in the public interest. These res publica are used as res omnium
communis.
Public authorities can own both moveable and non- moveable goods, as well
as tangible and intangible ones. Goods considered to have a public function can
be named ‘public goods’; these goods can be divided into those «public» by
nature, by custom or, by a decision of the municipal council, destined for gen-
eral usage by the public, and those that are used as a public institution. The first
category of goods can also be used for specific functions, whether such func-
tions are necessary or optional. Dutch law also recognises the possibility of
withdrawing goods from their public function. This can be effected by nature,
by expiration or by a withdrawal decision of the competent body of the respec-
tive public authority, e.g., by the council of a municipality.
Whereas the ownership of a civil good normally includes its exclusive use
and full possession, in the case of a ‘public good’, these rights are limited be-
cause of its general or public usage. ‘Public goods’ can be characterized as
dominium serviens, as the owner must assure that the goods do answer to their
public function and must accept that they are used by the public. Furthermore,
public authorities must always act according to the principles of good adminis-
tration that are laid down in the General Act on Administrative Law and in ju-
risprudence. There also are some specific acts that contain provisions regarding
40
Art. 2.1, par. 1 of the Civil Code.
475
ine van haaren-dresens
‘public goods’, such as the Act on Roads, the Air Transport Act, the Ship Trans-
port Act, the Act on the Maintenance of Cultural Heritage, etc.
Some goods can be owned only by the State. The Civil Code stipulates that
the State owns the bottom of the territorial sea and the Waddensea.41 The Civil
Code also contains a general provision which says that real estate that are main-
tained by a public authority are presumed to be owned by that authority.42
For financial assets, there is specific regulation regarding the way in which
these assets may be invested (the Act on the Financing of Local Public Au-
thorities). Of course, local public authorities must also respect E.U. regulations
concerning tenders and notification.
In civil law, a legal entity as such is the owner of goods, so in the case of a
local authority, the municipality as a legal entity can own assets. A legal entity
acts through its governing bodies. Administrative law stipulates which body
within the municipality is competent to act. According to the Municipality Act,
the mayor represents the municipality.43 The competence to decide about buy-
ing, selling, renting, lending, etc., lies with the municipal council. When the
council has taken a decision, the executive body (the board consisting of the
mayor and aldermen) can execute the decision, e.g. in finalizing the agreements.
Civil law governs the acquisition of ownership, and there are no special
procedures for local authorities’ acquisition of ownership except for the possi-
bility of expropriation of goods in the general interest. In case of expropriation
by a municipal authority, the municipal council must declare that the act is
necessary in the general interest. According to the Expropriation Act, the judge
must then rule upon the expropriation. Apart from emergency situations, the
municipality must certify the indemnification of the owner prior to the judge’s
decision. The central government can expropriate municipal assets in the gen-
eral interest. Compensation must be provided. Under normal circumstances,
requisition of municipal assets by the State is not possible; only in times of war
or other emergency situations does constitutional emergency law contain spe-
cific provisions for the requisition of goods by public authorities. In the case of
an expropriation, the council decides whether it is necessary in the general in-
terest, whereas the judge actually rules upon it.
On the other hand, and according to the Act on Preferential Rights for Mu-
nicipalities, should a landowner wish to sell his property, the municipality has
a privileged status: the land must be offered to the municipality first.
41
Art. 5.25 of the Civil Code.
42
Art. 5.28 of the Civil Code.
43
Art. 171 of the Municipality Act.
476
local government in the netherlands
Local authorities can join together with other legal entities to exploit munici-
pal assets, and they may also set up commercial firms or other profit-making
corporations. In recent years there has been a tendency towards the privatisation
of institutions or competences of the central government that are thought to be
carried out more efficiently by private organisations. For municipal ownership,
this trend has also been quite obvious: such public utility facilities as electrical
power and gas suppliers have been sold to privately-owned companies, as have
been the services for the collection and disposal of waste and for environmental
maintenance. Public transport has been transferred to privately owned compa-
nies, public swimming pools and other sports facilities have been privatised, and
even public schools have been handed over to private legal persons. Nowadays,
the disadvantages and the political problems of privatisation are becoming clear-
er and clearer, and there seems to be more reluctance to further privatization.
In the Dutch legal system, municipalities are controlled not only by admin-
istrative authorities of a higher level, but also by courts. The judicial power can
control only the legality of local decisions and regulations. It may not pre-empt
the executive and legislative powers and therefore may not control the expedi-
ency of their decisions and regulations.
As noted at point 3, at present there is still no general right of recourse to a
judicial court for local authorities as stipulated by Art. 11 of the European
Charter on Local Self-government (ECLSG). The reservation made by the
Netherlands still stands, although local authorities have the right to appeal
against the decisions of other public authorities. However, it must be stressed
that, under the General Act on Administrative Law, any penson who has a spe-
cific interest, can make an appeal to an administrative court if he thinks that a
decision of a governmental agency is unlawful, i.e., if it is not consistent with
international, national, provincial or municipal legislation or with unwritten
law. The appeal must concern an individual decision or a decision with a gen-
eral reach. The general binding regulations of a public authority cannot be con-
tested in an administrative court. This right of appeal is also granted to public
authorities whose interests are at stake in a decision.
A local authority might also ask a civil judge in a tort procedure to order the
State to act in accordance with the principles of decentralisation laid down in
domestic law or in the ECLSG. By nature, however, these principles must be
considered as not constituting a direct legal claim.
Until now, courts have also generally been considered unable to examine
Dutch legislation for compatibility with most clauses of the Charter, or to order
477
ine van haaren-dresens
the State to apply the said Charter, as its provisions are not considered to be
self-executing, i.e., they do not have direct effect. Most clauses are understood
as being addressed to the legislature, which must implement the provisions in
national legislation. It is unclear whether or not some provisions have direct
effect44. If a court should consider a domestic provision to be in violation of a
provision of the European Charter that does have direct effect, the domestic
provision may not be applied. To date, there has not yet been such a decision.
There is some case law stating that provisions of the Charter do not have direct
effect. All decisions concerning the Charter are mentioned below.
44
E.g., Art. 5 and Art. 6, par.2 might be considered to have direct effect.
45
E.g., ABRRvS 22 April 2009, LJN BI1842 (Landsbanki II).
46
E.g., ABRvS 25 September 2002, LJN AE 7993 (Betuwe).
478
local government in the netherlands
Local authorities are obliged by law to provide for an ombudsman. The ju-
risdiction of the ombudsman extends to cover the way in which all public bod-
ies or their staffs behave towards citizens. Municipal ombudsmen have juris-
diction only over complaints regarding their own municipality. In case
municipalities institute an ombudsman jointly with other municipalities, or if
they join an ombudsman institution of another municipality, the incumbent has
jurisdiction over complaints concerning all cooperating municipalities.
For local public bodies, the obligation to have an ombudsman or ombuds
committee (as used below, «ombudsman» will be used to refer to both that fig-
ure and the ombuds committee) is laid down in the Municipality and the Prov-
ince Acts. Municipal and provincial councils may institute and nominate a local
or a provincial ombudsman of their own or, as stated above, they can also do so
together with other local bodies or join the ombudsman institution of another
municipality. If local bodies do not choose one of these options, the independ-
ent National Ombudsman de jure has jurisdiction; the National Ombudsman is
competent for all 12 Dutch provinces as well as for about half of all 418 mu-
nicipalities, which is in fact the explicit choice of the provincial and municipal
councils concerned.
47
Arts. 189 and 193, respectively.
48
Art. 203 of the Municipality Act and Art. 207 of the Province Act.
479
ine van haaren-dresens
The principle of subsidiarity is laid down in the Municipality and the Prov-
ince Acts, which stipulate that the Minister of the Interior must encourage
decentralisation for the benefit of the lower-level authorities, and that respon-
sibilities may be allocated to higher level bodies only if this is required for
reasons of efficiency and economy.49 Thus, if the State wishes to allocate a
responsibility to a body at a higher level than the local authority, the legisla-
ture must justify why that responsibility cannot be exercised by the municipal-
ity. Furthermore, there are provisions that put the Minister of the Interior in
charge of the coordination of State policy affecting local authorities; he is
obliged to oppose decisions or intentions of other ministers that thwart the
decentralisation policy.50
The minister concerned in the central government, as well as the provincial
boards, must, upon request, inform the boards of the municipalities regarding
projects and ideas which will affect local authorities.51 The relevant minister
and the provincial boards must discuss with the boards of the municipalities,
again on request, all central or regional matters that may concern local authori-
ties; both these rights can be denied only if the public interest would be violated
by providing the information or discussing the matter.52
If proposed legislation, either central or regional, requires regulation and
management by municipalities under the medebewind regime, or significantly
alters the responsibilities and competence of local authorities, the minister con-
cerned or the provincial board are obliged to ask the boards of the local au-
thorities or their representative (generally the Association of Dutch Munici-
palities, VNG) for their opinion on the legislative proposal. Only in urgent
matters is it possible to forego previous consultation; in those cases consulta-
tion must take place as soon as possible and the results of the consultation must
be made public.53
49
Art. 117 of the Municipality Act.
50
Art. 116 of the Municipality Act.
51
Art. 112 of the Municipality Act.
52
Art. 113 of the Municipality Act.
53
Art. 114 of the Municipality Act.
480
local government in the netherlands
On their own part, if requested, the local authorities—in general, the board
of mayor and aldermen, unless specifically asked by the council or the mayor—
are obliged to inform and advise the ministers and the provincial board regard-
ing all matters that concern the municipality.54 Through either central or provin-
cial legislation, the boards of local authorities can be forced to provide the
minister or the provincial board systematically with information on certain mat-
ters.55 A local or provincial authority may ask a civil judge in a tort procedure
to order the State to actually apply the above-mentioned principles laid down in
the Municipality and Province Acts. Nevertheless, their having the character of
principles does not guarantee that these provisions will be considered to contain
rights for local authorities that can be applied by courts.
It should also be mentioned that there is no constitutional court in the Neth-
erlands. In literature and politics there has been a great deal of discussion on
this issue, and although there is a bill pending to amend the system, to date (ac-
cording to the Constitution)56 the judiciary cannot review the constitutionality
of Acts of Parliament and treaties because of the primacy of the legislature.
In Dutch legal litterature and case law, public authorities are not entitled to
invoke human rights, as by their very character these rights are not the domain
of public authorities, whether central or local. As stated above, Dutch local
authorities do not have a general right of recourse to the courts. When a deci-
sion concerns their sphere of interest, however, they can contest the decision in
administrative courts, and they also can go to civil courts for tort procedures.
Although most provisions of the ECLSG must be considered as not self-
executing, and therefore courts do not examine Dutch legislation for compati-
bility with those clauses, other treaty parties may of course file complaints in
case of an alleged breach of the Charter by the Dutch State. Also, the Congress
of Local and Regional Authorities of the Council of Europe can bring alleged
breaches to national and international political attention.
Since the Maastricht Treaty (1994), there exists a Dutch delegation to the
Committee of the Regions. It is composed of mayors, a Queen’s Commissioner
and municipal and provincial aldermen. The chair and vice-chair of the Dutch
delegation participate in the Bureau of the Committee. The members of the
delegation also participate in the COTER, ECOS, ENVE, EDUC, CIVEX and
NAT commissions. The delegation is assisted by secretaries from the associa-
tions that promote their interests, the Union of Dutch Municipalities (Verenig-
54
Art. 118 of the Municipality Act.
55
Arts. 119 and 120 of the Municipality Act.
56
Art. 120 of the Municipality Act.
481
ine van haaren-dresens
ing van Nederlandse Gemeenten, VNG) and the Inter Provincial Union (Inter
Provinciaal Overlegorgaan, IPO).
On the other hand, the Dutch local authorities have voices in Brussels
through which they try to influence E.U. policy-making. They are represented
through their associations, the VNG and IPO, which lobby and consult for them
and contact the Dutch delegations to the E.U. as well as the (Dutch) members
of the E.U. Parliament. The VNG as well as «The Big 4» (Grote 4, G4—i. e.,
Amsterdam, The Hague, Rotterdam and Utrecht) have special Brussels offices
in the Brussels House of the Cities. They are members of the federation of the
national associations of European local authorities, the Council of European
Municipalities and Regions (CEMR). The IPO also has, together with the 12
Dutch provinces, a Brussels office in the House of the Provinces.
As for EU Funds, for the 2007-13 period, the Netherlands has been allocated
€1.907 billion in total, €1.660 billion under the Regional Competitiveness and
Employment objective, and €247 million under the European Territorial Coop-
eration objective. To complement the EU investment under the National Strate-
gic Reference Programme, the Netherlands’ contribution would amount to at
least €2.319 billion in current prices. All Dutch regions fall under the Regional
Competitiveness and Employment objective.57
Afdeling Bestuursrechtspraak Raad van State d.d. 22 April 2009, LJN: BI 1842
(Landsbanki II)
District Court Utrecht d.d. 17 October 2008, LJN: BG1043 (Loenen)
Afdeling Bestuursrechtspraak Raad van State d.d. 18 April 2007, LJN BA 3438
(VNG c.a.)
Afdeling Bestuursrechtspraak Raad van State d.d. 1 April 2005 LJN AT 3248
(Onderbanken)
Afdeling Bestuursrechtspraak Raad van State d.d. 25 September 2002, LJN AE
7993 (Betuwe)
Afdeling Bestuursrechtspraak Raad van State d.d. 17 July 2002, LJN AE 5462
(Tubbergen)
57
Last paragraph copied on 19-02-2011 from: http://ec.europa.eu/regional_policy/atlas2007/
fiche/nl_en.pdf.
58
These decisions are not all landmarks, but they do all concern the Charter. Accessible at:
www.rechtspraak.nl
482
local government in the netherlands
(A) Books
De Gemeentestem:
http://home.kluwer.nl/kluwer/portal_klnl/product/De+Gemeentestem/
prodM6389.html
Regelmaat: http://www.bjutijdschriften.nl/tijdschrift/regelmaat/detail
Bestuurswetenschappen: http://www.sdu.nl/catalogus/A02014
Binnenlands bestuur: http://www.binnenlandsbestuur.nl/
483
Chapter 20:
LOCAL GOVERNMENT IN POLAND
Michał KULESZA
Dawid SZEŚCIŁO
1
Poland’s self-government system covers not only local but regional authorities. Therefore,
mentions are made in this contribution, were needed, to the regional level of territorial govern-
ment, the «voivodeships».
485
michał kulesza - dawid sześciło
1989, and they substituted the unified system of people’s councils for self-
government institutions, which had been traditional in Poland. Secondly, in
March 1990, local self-government in the Municipality or «commune» (gmi-
na) was legally restored with the enactment of the Territorial Self-Government
Act. Finally, in May 1990, representatives from almost 2,500 local councils
were elected in fully democratic elections for the first time in Polish postwar
history. This event closed the initial stage of administrative reforms aimed at
significant decentralization of the public management system. Quick restora-
tion of local self-government was feasible, because in the early 80’s, a group
of independent experts associated with the democratic opposition, had elabo-
rated the strategic concepts of self-government, and the sudden collapse of the
communist system unexpectedly opened the way for the implementation of
their plans.2
The second stage of decentralization reforms occurred in 1998-1999. The
legislative package passed in June 1998 and enacted on 1 January 1999, con-
sisted of two core elements:
– Restoration of the powiat (county) as a second, supramunicipal tier of lo-
cal government, which was traditional in Poland. Pursuant to this legisla-
tion, 314 counties have been established since 1 January 1999.
– Creation of self-government at the regional level with 16 voivodeships
(regions, provinces) that replaced 49 former small voivodeships managed
by the central administration.
Elections for counties and voivodeship councils were held in autumn of
1998, and, as a result, the State and public management system were spectacu-
larly and significantly transformed. The final outcome produced one of the
more sophisticated and original administrative systems in Europe, which in-
cludes:
– A three-tier territorial system, where municipalities and counties perform
the functions of local government, and voivodeships operate at the re-
gional level. It should be noted that, unlike other major European coun-
tries (Germany, Spain and Italy) regional government in Poland is not
based on politically autonomous or federal units, but on administrative
government. At the regional level, the voivodes are general representatives
of the central government, whose competences and powers include, among
others, the administrative oversight local authorities and the implementa-
tion of tasks relating to general security and order, crisis management,
natural disaster prevention etc.
– The specific agendas of central government operate at both the regional
and local levels, and competences include security services (police, fire
protection, construction supervision) consolidated within the powiat’s ad-
2
See more: Jerzy Regulski, Michał Kulesza: Droga do samorządu, Wolters Kluwer 2009.
486
local government in poland
487
michał kulesza - dawid sześciło
Local government in Poland has two levels: the municipality (gmina) and
the county (powiat), but in each level different types or bodies may be found.
Thus, there are three forms of municipalities:
– Municipality (urban commune, gmina miejska). This type of local body
covers the area of towns and there are less than 300. Within this group
there are large differences in their size: from about 1,000 residents to
about 1.7 million residents (City of Warsaw).
– Rural commune (gmina wiejska): this type includes only the non-urban
areas. There are some 1,500 such units.
– Urban-rural commune (gmina miejsko-wiejska). This type is a mixed or
consolidated form covering towns or townships and the area of the vil-
lages adjacent to them – formerly they were separate rural communes (al-
most 600).
Within the rural communes, the parishes (sołectwo) represent the basic form
of neighbourhood self-organization of rural communities in villages. Currently,
there are over 40,000 parishes, which are generally very small and typically
include a single village area. Parishes represent the interests of the village with-
in the commune. It should be emphasized that parishes are not independent lo-
cal authorities, but rather auxiliary units created by the municipality, to perform
specific tasks entrusted to them. An example of these tasks is the organization
of cultural or sport events, common activities, local road improvement, village
water supply and sewage systems, flood protection etc. The elected chair of a
village council (sołtys) is empowered to provide direct collection of some local
taxes and fees.
A similar type of auxiliary unit of the urban municipality is the district
(dzielnica) or housing estate (osiedle). This formula is not commonly found in
Poland and is associated with bigger towns and major cities, including the cap-
ital city of Warsaw. Parishes and districts (housing settlements) are established
by decision of the municipal council.
Since 1998-1999, a group of 65 of the largest towns, including all the
«voivodeship» capitals, were given the status of town with county rights. Ac-
cording to this formula, the authorities of these towns perform simultaneously
the tasks and competences associated with a commune and a county.
In addition to the towns with county rights, there are 314 counties
(powiats), including the territory of several municipalities. An average coun-
ty has about 85,000 residents, and some 8 municipalities. The biggest county
in terms of population is Powiat Poznański (290,000 residents) and the small-
est is Powiat Sejneński (21,000 residents). The «Voivodeships» (regions)
also differ greatly in size. The largest voivodeship, Mazowieckie (Masovia
region), has an area of 35,000 km2 and 5.2 million residents, and Śląskie (Si-
488
local government in poland
lesia) is only marginally smaller. The four smallest voivodeships have close
to 1 million residents. The smallest voivodeship, in terms of area, is Opolskie
(9,000 km2).3
3
Data of Central Statistics Office, www.stat.gov.pl.
4
Ruling of Voivodeship (regional) Administrative Court in Warsaw of 26 October 2006,
case no. III SA/Wa 2459/06.
489
michał kulesza - dawid sześciło
Charter, because of its general nature, may, only to a limited extent, serve as a
basis for direct examination of the conformity of domestic law to the Charter.»5
5
Ruling of the Constitutional Court of 18 February 2003, case no. K 24/02.
490
local government in poland
491
michał kulesza - dawid sześciło
The Capital City of Warsaw is the object of specific regulation, and accord-
ing to the law governing the structure of the city,6 Warsaw currently enjoys the
status of a city with county rights. From 1994 to 2002, Warsaw was divided
into several independent municipalities, but the model proved ineffective, so
the formula of the single municipality divided into several auxiliary units’ dis-
tricts was adopted. The division of tasks between Warsaw and the districts is
not specifically defined on a statutory level, so the Warsaw City Council de-
cides on which tasks will be assigned to the districts. The Capital City of War-
saw Act, however, stipulates that the districts should participate in performing
the following tasks:
– maintenance and operation of municipal property;
– maintenance of facilities for education, culture, social welfare, recreation,
sports and tourism;
– tasks related to health care; and
– maintenance of green areas and local roads.
The Warsaw City Council adopts a budget that allows districts to perform
these tasks. Districts are managed by district councils, which are elected at the
same time as the municipal council. The executive body is appointed by the
district council of each district.
6
See more: Magdalena Niziołek: Problemy ustroju aglomeracji miejskich ze szczególnym
uwzględnieniem Warszawy, Wolters Kluwer 2008.
492
local government in poland
7
See more: Michał Kulesza: O tym, ile jest decentralizacji w centralizacji, a także o osobli-
wych nawykach uczonych administratywistów, Samorząd Terytorialny 2009, no. 12.
493
michał kulesza - dawid sześciło
areas that are expressly attributed to it. The catalogue of actions includes the
following:
– public education,
– promotion and protection of health,
– social assistance,
– family policy,
– support for people with disabilities,
– public transport and public roads,
– culture and cultural heritage protection,
– sports and tourism,
– geodesy, cartography and cadastre,
– real estate management,
– architectural and building administration,
– water supply,
– environmental protection and nature,
– agriculture, forestry and inland fisheries,
– public order and citizen safety,
– flood protection, fire protection and prevention,
– extraordinary threats to human life and health and the environment,
– combating unemployment and activation of the local labour market, and
– protection of consumer rights.
Some of these tasks coincide with those of the municipalities, but this does
not means the lack of a separation between the areas of responsibility assigned
to municipalities and those assigned to the counties. The county performs only
those tasks that have a supra-municipal significance and that would be impos-
sible or ineffective to execute by other means. For example, in the sphere of
public education, the division of tasks between the municipality and the county
is as follows: the first maintains primary and pre-secondary schools, while the
latter is responsible for secondary schools. In addition, it is legally possible for
a county to transfer certain tasks, under contract, to the municipalities.
The voivodeships (regions) focus mainly on the formulation and implemen-
tation of regional development policy. According to the Voivodeship Govern-
ment Act, policy should:
– create conditions for economic development, including the creation of a
job market;
– maintain and develop social and technical infrastructure of regional im-
portance;
– combine public and private funding to finance public service;
494
local government in poland
The municipal council is the rulemaking body. The method of selecting mu-
nicipal councils depends on the size of the local authority. Under the new Elec-
toral Code, effective as of 1 August 2011, the following rules will apply:
– In most municipalities, there will be a majority system under which the
candidates who obtains the majority of votes in the constituency become
councillors. The system is based on single-member constituencies in
which each election committee can propose only one candidate for the
constituency
– In «towns with county rights», however, the division of seats among the
lists of candidates will be based on the proportional system. Also, there is
a 5% threshold that must be reached to participate in the allocation of
495
michał kulesza - dawid sześciło
seats. The size of the municipal council depends on the size of the com-
mune, so towns and cities of up to 20,000 inhabitants have 15 councillors;
50,000 inhabitants, 21 councillors; up to 100,000 inhabitants, 23 council-
lors; and up to 200,000 inhabitants, 25 councillors.
In municipalities with populations exceeding 200,000 residents, the number
of councillors increases by 3 for every 100,000 residents. A special regulation
applies for Warsaw, which allows a fixed number of councillors (60 councillors).
Municipal councils are invested with powers traditionally associated with
the regulatory and policy-maker bodies. Such powers include: rule making, the
adoption of the municipal statute, the municipal budget, local spatial planning,
strategies, resolutions on matters regarding local taxes and charges, and key
issues concerning municipal property that include the rules governing the dis-
posal of municipal property and municipal bond issues, the establishment of
municipal companies and loans. The municipal council also controls the activi-
ties of the mayor, the administrative units, and the auxiliary bodies of the local
entity, through an appointed auditing committee.
The policy-making body in the counties and voivodeships also operates by
these rules, with the exception that the councils are selected by universal suffrage
according to a proportional system with a 5% electoral threshold. Unlike the mu-
nicipal council, the county council has the power to dismiss the county board.
496
local government in poland
The provisions of the Municipal Self-Government Act provide for three forms
of inter-municipal cooperation. The most far-reaching solution is the inter-munic-
ipal association, created by the municipalities for the joint performance of public
tasks. The association is a legal entity, with an independent status under public
law, and is distinct from that of the constituent local authorities. It also operates on
its own behalf and under its own responsibility. Inter-municipal associations exe-
cute projects such as shared waste management systems among several munici-
palities, joint environmental protection, and public transport system.
A second type of collaboration takes the form of an inter-municipal agree-
ment, which does not require the creation of a separate legal entity. Under this
formula, municipalities agree to enable one commune to perform certain public
functions. An example of this would be one commune handling landfill, which
according to the inter-municipal agreement, would entail waste pick-up in oth-
er local authority. An important element of this cooperation is that the parties
involved in the cooperation must co-finance the activity.
Finally, another form of cooperation is the consortium of local authorities,
whose goals are completely different than those of the municipal association or
the inter-municipal agreement. Local authorities consortia are established to sup-
port self-government and to defend common interests. Participants may be other
local government units such as counties and voivodeships. In contrast to the inter-
municipal association and the inter-municipal agreement, the consortium does
not perform public tasks assigned by municipalities, rather its objectives are to
exchange experiences, inform and be informed and to protect the interests of lo-
cal government. Some of these associative structures of municipalities are repre-
sented in the Joint Commission of Government and Self-Government.8
Local government officials constitute a separate body within the Polish civ-
il service system, which differs from the administrative service that operates in
central government. The regime for local government employees is less de-
tailed and restrictive than that of central government, and local officials, unlike
their counterparts, have no special legal status. On the other hand, employment
by local government units is subject to special legal requirements. For example,
the Act on Local Government Employees lays down specific rules of employ-
ment in the following instances:
– Required qualifications. Officials employed by local authorities must
meet three basic criteria: (1) possess at least an upper secondary educa-
8
http://kwrist.mswia.gov.pl
497
michał kulesza - dawid sześciło
tion; (2) have no criminal record of intentional indictable crimes; and (3)
have a good reputation. Managerial positions also require three years of
experience in a similar position or in a commercial activity consistent with
the requirements for the post, and a higher education.
– Recruitment. The staffing of civil servants positions must be open and
competitive, and require a public call of the position(s). The action of
a special committee, assigned the task of directing the recruitment pro-
cedure, must be transparent and the results must be announced publi-
cally.
– Working conditions. Local government officials are subject to mandatory,
periodic evaluations performed at least biannually, but not more than once
every 6 months.
– Restrictions on private activities. Officials cannot engage in activities that
may cause a conflict of interests with their work in the local authority, and
all are obliged to make a statement as to their business activities.
9
Data of Ministry of Finance (www.mf.gov.pl).
498
local government in poland
7.2. Subsidies
7.3. Grants
In contrast to subsidies, grants are a more flexible form of support for spe-
cific tasks performed by municipalities. Some examples of grant objectives are:
– financing tasks assigned to municipalities by national legislation;
– financing tasks performed by local governments under agreements with
national government authorities; and
– funding for the removal of direct threats to security and public order, flood
and land slide recuperation, or damage caused by other natural disasters.
Given the broad spectrum of these objectives, grant allocation depends on
the robustness of the State budget and the probability of one-off events that
would force central government to effect immediate relief to affected areas.
499
michał kulesza - dawid sześciło
7.4. EU Funds
In recent years, European Union funds have played a key role in the Polish
government‘s investment policy, which has made money available to many
municipalities. The main source of funding is derived from the Regional Op-
erational Programmes, which are managed by voivodeships (regional authori-
ties). Funds are distributed according to public tender procedures, which are
open to municipalities and counties. With the present EU financial perspective,
it is not clear what level of funding will be available to local authorities after
2014. The possibility of a reduction in support for regional development would
seriously undermine the investment capacity of local authorities. On the other
hand, this threat may be mitigated by the development of alternative methods
of funding such as public-private partnerships.
Several agencies and courts oversee the activities of local authorities. In ac-
cordance with constitutional principles, the activities of all units of local gov-
ernment are subject to supervision within the limits of certain legal criteria. In
addition, supervisory authorities may intervene in municipal activities in cases
specified by law. The bodies of authority responsible for the supervision of the
activities of local entities are the Prime Minister, the voivodes (governors), and
500
local government in poland
the regional audit chambers (for financial matters). As supervisors, the voivodes
have the authority to abolish decisions adopted by self-government authorities
that are contrary to law, and this action would be communicated in the form of
a supervisory decision. It is important to note that the executive body of each
local authority is supposed to send the resolutions and measures that have been
adopted by the council within seven days after its adoption, and voivodes must
assess the local authorities‘compliance with the law. If they found grounds for
annulment, the local decision would be declared null and void. Local authori-
ties would then have two options: either introduce the necessary changes in the
contested measure, or challenge the voivode’s decision in an administrative
court. In this case, the court would call for a hearing within 30 days from the
receipt of the complaint. The court may suspend the contested resolution of the
governor.
Citizens also have the right to challenge decisions and regulations adopted
by local authorities. Pursuant to self-government laws, anyone whose legal in-
terest or right has been violated by a resolution or an ordinance adopted by local
or regional authorities, may lodge a complaint in the administrative court. Fur-
thermore, administrative individual decisions taken by the local and regional
authorities (e.g. building permits) may be challenged under a two-instance ad-
ministrative procedure. After exhausting these remedies, a citizen may lodge a
complaint before the administrative court requesting that the unlawful decision
be repealed.
In addition to supervisory powers, several governmental agencies have the
right to monitor the activities of local authorities or, at the very least, to request
information on specific matters. As previously mentioned, the Supreme Audit
Chamber (NIK) is able to exercise this competence as well as the Ombudsman,
who can demand information from all State authorities, including local govern-
ment units.
501
michał kulesza - dawid sześciło
10
See list of Polish members of the Committee of the Regions: http://www.brukselaeu.po-
lemb.net/index.php?document=42.
502
local government in poland
Finally, it is important to note that voivodeships have a key role in the dis-
tribution of EU funds. As of the 1998-1999 reform, voivodeships are empow-
ered with effective tools for formulating and performing regional development
policy, which is important because EU funds are the major source of support
for implementing such policy.
(A) Books
503
michał kulesza - dawid sześciło
(B) Journals
504
Chapter 21:
LOCAL GOVERNMENT IN PORTUGAL1
Pedro COSTA GONÇALVES
Ana Raquel MONIZ
The roots of local government in Portugal reach deep into the history of law: it
is possible to trace their origin to Roman times (in the case of the municipality) and
to the time of the evangelisation of the Iberian Peninsula (in the case of the parish).2
The origin of local governments (especially that of the municipality) is related to
the inability of the central government (the Crown) to fulfil all of the country’s
needs, and hence it was necessary to attend to the details of life in commonality.3
Within the contemporary Portuguese constitutionalist framework that
emerged from the Portuguese Liberal Revolution, the Constitution of 1822 con-
tained provisions relating to district and municipal administrations (Arts. 212
and ff.). In turn, the Constitution of 1826 contained a title on the «administra-
tion and economy of the provinces» (Arts. 132 and ff.).
Albeit with some setbacks to the trend of centralisation (e.g., the Decree of
Mouzinho da Silveira No. 23, dated May 16, 1832), a significant impulse of
local government has taken place with the (legislative) reform of the Public
Administration, due to the need of creating an administrative code. This does
not mean, however, that the evolutionary trend in the legal treatment of local
administration has been progressively oriented towards decentralisation, but
rather, depending on the constitutional acts and administrative codes in force,
we find centralising moments interspersed with decentralising ones.
1
Translation from the original manuscript in Portuguese by Sofia Castro Nunes.
2
See Marcello Caetano, «História da Administração Central, Local e Corporativa», in: Es-
tudos de História da Administração Pública Portuguesa, Coimbra Editora, Coimbra, 1994, pp.
325 and 335, respectively.
3
Marcello Caetano, «Aspectos Institucionais do Fomento Regional», in: O Direito, fasc. 4.º,
ano XCIX, 1967, p. 302.
505
pedro costa gonçalves - ana raquel moniz
The first Portuguese Administrative Code, dating back to 1836, divided the
country into districts (distritos), which were then subdivided into minicipalities
composed of one or more parishes (freguesias). It is important to note two rel-
evant points: on the one hand, all these entities had a deliberative body elected
by the inhabitants; on the other hand, they corresponded to what we nowadays
define as public bodies designated for multiple purposes (for instance, the city
hall—the deliberative body of municipalities—had the power to «consult and
deliberate on all the municipality’s needs»).
In line with the movement between centralisation and decentralisation4
which characterized the evolution of Portuguese local autonomy, the succes-
sive Administrative Codes alternatively presented either centralising character-
istics (such as in the Codes of 1842, 1886 and 1895-1896) or assumed a decen-
tralising trend (such as in the Code of 1878).
The trend towards decentralisation was again present in the 1911 Consti-
tution, of which Art. 266 contained a list of standards to guide the legislature
in its task of generating rules relating to the organization and powers of the
administrative bodies: here it was established that the executive power would
not interfere in the activity of the administrative bodies; that their delibera-
tions could only be modified or annulled by the courts (if invalid); that the
district and municipal powers would be divided into deliberative and execu-
tive powers; and that the administrative bodies would be endowed with fi-
nancial autonomy, adding the exercise of the referendum and the representa-
tion of minorities. In connection with this constitutional provision, the law
regulating the organisation, functioning and powers of the administrative
bodies was enacted (Law No. 88, of August 7, 1913, amended by Law No.
62 of June 23, 1916), which divided the territory into districts, communes
and civil parishes.
The Constitution of 1933 returned to the rule of centralisation: while
recognizing the existence of local authorities (autarquias locais) endowed
with financial autonomy, Art. 126 (amended and renumbered as Art. 127 in
1936) provided for the local governments’ administration to be inspected
by officials of the central government, and the deliberations of the govern-
ing bodies depended on authorization by other agencies or authorities and
were subject to referendum and approval. Other constitutional characteris-
tics of the trend towards centralisation were consolidated by the Adminis-
trative Code of 1936-1940 (subject to several reviews). Worth emphasising
in this period are the following: the nomination of the mayor, who is now a
State body, by the government; the significant increase in State powers that
reduced the range of powers of local governments; and the progressive
change of the autonomous administration to indirect State administration.
4
See A. Cândido de Oliveira, Direito das Autarquias Locais, Coimbra Editora, Coimbra,
1993, p. 26.
506
local government in portugal
This situation changed only with the Portuguese Constitution of 1976, cur-
rently in force.5
5
For a synthetic perspective of the historical evolution of local autonomy, see Marcello Cae-
tano, Manual de Direito Administrativo, vol. I, 10.ª ed. (reimp.), Almedina, Coimbra, 1997, pp. 315
and ff., 352 and ff.; A. Cândido de Oliveira, Direito…, cit., pp. 11 and ff.; Freitas do Amaral, Curso
de Direito Administrativo, vol. I, 3.ª ed., Almedina, Coimbra, 2006, pp. 538 and ff.; José de Melo
Alexandrino, «Direito das Autarquias Locais», in: Paulo Otero/Pedro Gonçalves (org.), Tratado de
Direito Administrativo Especial, vol. IV, Almedina, Coimbra, 2010, pp. 51 and ff.
6
Portuguese law also recognized the autonomous regions (Azores and Madeira), which are
not local government units (local governments), but entities with political and administrative
autonomy, including legislative power (see Arts. 225 and ff. of the CRP).
7
See. Freitas do Amaral, Curso…, vol. I, cit., p. 658.
507
pedro costa gonçalves - ana raquel moniz
8
Published in Diário da República, I Série A, No. 174, 30.07.1998, pp. 3660-(13) and ff.
9
������������������������������������������������������������������������������������������
On the Portuguese regionalization process, see some reflections of Freitas do Amaral, com-
piled in Estudos de Direito Público e Matérias Afins, vol. I, Almedina, 2004, pp. 347 and ff.
10
The ECLSG was approved by the resolution of the Assembleia da República No. 28/90 of
23 October and ratified by the Decree of the President of the Republic No. 58/90 of 23 October.
Both texts are published in the Official Journal, Series I, No. 245, 23.10.1990, p. 4344; the origi-
nal version (in French), as well as the Portuguese translation, are attached to the Resolution (pp.
4344 and ff.).
508
local government in portugal
11
See Jorge Miranda, Curso de Direito Internacional Público, 4.ª ed., Principia, Parede,
2009, p. 172; Moura Ramos, «A Convenção Europeia dos Direitos do Homem – Sua Posição
Face ao Ordenamento Jurídico Português», in: Documentação e Direito Comparado, No. 5,
1981, pp. 148 and ff.; Azevedo Soares, Lições de Direito Internacional Público, 4.ª ed. (reimp.),
Coimbra Editora, Coimbra, 1996, pp. 98 and ff.; Bacelar Gouveia, Manual de Direito Constitu-
cional, 3.ª ed., vol. II, Almedina, Coimbra, 2009, p. 1241; Jónatas Machado, Direito Internacio-
nal – Do Paradig
12
See also Casalta Nabais, «O Regime das Finanças Locais em Portugal», in: Boletim da
Faculdade de Direito, vol. LXXX, 2004, p. 19.
13
See also Afonso Queiró, «A Descentralização Administrativa Sub Specie Iuris», in: Estu-
dos de Direito Público, vol. II, tomo I, Acta Universitatis Conimbrigensis, Coimbra, 2000, p.
283; Gomes Canotilho, Direito Constitucional e Teoria da Constituição, 7.ª ed., Almedina,
Coimbra, 2003, p. 253; Vieira de Andrade, «Autonomia Regulamentar e Reserva de Lei», in:
Estudos em Homenagem ao Prof. Doutor Afonso Rodrigues Queiró, Boletim da Faculdade de
Direito, Coimbra, 1984; A. Cândido de Oliveira, Direito…, cit., pp. 125 and ff.; Paulo Otero, O
Poder de Substituição em Direito Administrativo: Enquadramento Dogmático-Constitucional,
Lex, Lisboa, 1995, p. 677. V. and paragraph 7 of the Preamble of the CEAL.
14
Gomes Canotilho, Direito…, cit., pp. 253 and ff.
509
pedro costa gonçalves - ana raquel moniz
Title VIII of the Constitution concerns local government (Arts. 267 to 265).
The categories of local government are outlined (Art. 236) and placed in the
context of administrative decentralisation (Art. 237); their democratic aspect is
deepened (Art. 239) and some of the most relevant aspects of municipal au-
tonomy (e.g., staff, own assets and finance, autonomous regulatory power) are
stated, notwithstanding their submission to administrative supervision (Art.
242). Following a chapter on «General Principles» (Chapter I, Arts. 235 to
243), the subsequent chapters of the Constitution concern the parish (Chapter
II, Arts. 244 to 248), the municipality (Chapter III, Arts. 249 to 254), the ad-
ministrative region (Chapter IV, Arts. 255 to 262) and neighbourhood organisa-
tions (Chapter V, Arts. 263 to 265).
510
local government in portugal
– Law No. 45/2008 of 27 August, which establishes the legal scope of mu-
nicipal associations;
– Law No. 46/2008 of 27 August, which establishes the legal regime of the
metropolitan areas of Lisbon and Porto;
– Decree-Law No. 305/2009 of 23 October, which establishes the organisa-
tion of services within local governments.
The powers of local authorities correspond to their assigned tasks and du-
ties. Despite the fact that these entities primarily aspire to meet the interests of
citizens, they may also pursue State-delegated tasks. Hence, it is necessary to
distinguish between the roles of local government (which include those that
were directly attributed to them) and those in which there is a transfer of State
tasks to local governments, which are performed by and under their own re-
sponsibility («delegated administration of the State»), and the State tasks for
which the local bodies exercise powers that were transferred to them by the
State to meet its purposes («local de-concentration»).
The responsibilities of local governments are outlined in the aforementioned
Law No. 159/99 of 14 September. Therefore, under Art. 13, paragraph 1 of Law
No. 159/99, the following subjects constitute assignments of the municipalities:
rural and urban equipment (Art. 16), energy (Art. 17), transport and communi-
cations (Art. 18), education (Art. 19), heritage, culture and science (Art. 20),
leisure and sport (Art. 21), health (Art. 22), social welfare (Art. 23), housing
(Art. 24), civil protection (Art. 25), environment and sanitation (Art. 26), con-
sumer protection (Art. 27), promotion of development (Art. 28), urban planning
(Art. 29), local police (Art. 30) and external cooperation (Art. 31).
Paragraph 1 of Art. 14 of Law No. 159/99 defines the powers of the par-
ishes: rural and urban equipment, public water supply, education, culture, lei-
sure and sport, primary health care, social welfare, civil protection, environ-
ment and health, development, urban and rural planning and community
protection.
511
pedro costa gonçalves - ana raquel moniz
Overall, the powers of the municipalities and those of the parishes are very
similar. The activity of the municipality, however, is more extensive (especially
territorially) and intense15 with regard to the type of powers assigned to their gov-
erning bodies, and because of the different means available to them. A special set
of acts provides the municipalities (as opposed to the parishes) with a wide field
of action in each of these common areas. Consequently, the activities of parishes
are characterized by the minor scope of powers attributed to their governing bod-
ies, due to having less power to act and a narrower territorial range of influence—
since their territorial areas are smaller than those of the municipalities—and due
to having fewer financial, human and technical resources.
The allocation of legal powers to the parish is exhaustive. It is forbidden for the
parishes, except in case of delegation, to execute tasks expressly assigned by law
to municipalities. However, the legislature does provide mechanisms by which the
parishes can substantially increase their role in meeting the needs of local popula-
tions, as occurs under Art. 15 of Law No. 159/99, according to which, «through
the instrument of delegation, in the existence of protocol with the municipality, the
parish is able to invest or manage equipment and municipal services.»
15
See A. Cândido de Oliveira, Direito…, cit., p. 346.
512
local government in portugal
adopt various forms of management of public services that are assigned to them
or that proceed according to their own or specific interests:
– public management: In such cases, the public service is carried out, di-
rectly or indirectly, by the public entities that are the holders of public
service, either through their own resources (physical, financial, technical,
human, etc.) or by other personalized public entities (i.e., legal personality
of public law) to whom the management or administration of a public
service is assigned, while working under its orientation and control. In
«direct» public management, municipal services are particularly relevant.
In «indirect» public administration, the pursuit of public municipal tasks
is deconcentrated and returned to local business entities (legal entities of
commercial type), constituted under Art. 33 and following the Regime
Jurídico do Sector Empresarial Local (RJSEL).
– private management: The management of public services may be entrusted
to private entities, i.e., to entities established and regulated by private law,
generally by commercial law. This relates to municipal companies (in the
strict sense), which form, together with the local business entities, the local
business sector and which are under the influence of municipalities, asso-
ciations of municipalities or the metropolitan areas of Lisbon and Porto.16
16
On the local business sector, see Pedro Gonçalves, Regime Jurídico das Empresas Muni-
cipais, Almedina, Coimbra, 2007; J. Pacheco de Amorim, As Empresas Públicas no Direito
Português (Em Especial, as Empresas Municipais), Almedina, Coimbra, 2000.
17
See Pedro Gonçalves, Entidades Privadas com Poderes Públicos, Almedina, Coimbra,
2005, pp. 252 and ff.
513
pedro costa gonçalves - ana raquel moniz
Although the essential roles of local government bodies derive from the
Constitution, it is for the Legislative Power to give precise definition to their
designation, description and organic composition. The characterisation of the
representative bodies of local governments will now be examined.
Paragraph 2 of Art. 235 of the Constitution states that local authorities are
endowed with their own representative bodies.20 In turn, Art. 239 clarifies that
the organisation of local governments consists of an assembly with deliberative
powers and a multi-member, executive body responsible before the assembly:
18
On the regulation powers of local governments, see Ana Raquel Moniz, «A Titularidade
do Poder Regulamentar no Direito Administrativo Português», in: Boletim da Faculdade de Di-
reito, vol. LXXX, 2004, p. 538 and ff.; Vieira de Andrade, «A Autonomia…», cit., passim.
19
See, v. g., A. Cândido de Oliveira, A Democracia Local, Coimbra Editora, Coimbra, 2005,
p. 59 and ff.
20
On the bodies of local administration, see A. Cândido de Oliveira, A Democracia…, cit.,
pp. 125 and ff.; José de Melo Alexandrino, «Direito…», cit., pp. 145 and ff.; Maria José Casta-
nheira Neves, Governo e Administração Local, Coimbra Editora, Coimbra, 2004, pp. 60 and ff.
514
local government in portugal
515
pedro costa gonçalves - ana raquel moniz
is clear from paragraph 3 of Art. 239 of the Constitution. As already stated, the
mayor is the candidate put in the first place of the list which gains the most
votes in the elections to the municipal board (see Art. 57, paragraph 1, of Law
No. 169/99). In case the post is left vacant, the mayor (or, in case of a coalition,
the citizen from the proposed party) is the following candidate on the list (see
Arts. 57 and 79 of Law No. 169/99). Similar to that of the other local governing
bodies, the mandate of the mayor is for four years (see Art. 75).
The mayor has his own as well as delegated powers (see Arts. 68 and 65 of
Law No. 169/99) and can delegate or sub-delegate to the city councillors and,
with the exceptions provided by law, should be informed of the performance of
those tasks.
516
local government in portugal
petences, that delegated by the municipal board (see Art. 37. of Law No.
169/99). In turn, it can itself delegate powers to its chairman (see Art. 35 of
Law No. 169/99).
Art. 253 of the Constitution expressly allows for the creation of associations
and federations of municipalities for the administration of common interests.
Although there is no similar provision regarding the parish, this should be un-
derstood from Art. 10 of the CEAL, which recognizes any local government’s
right of association.
One method of municipal cooperation is the establishment of representative
associations of municipalities and parishes (whether or not of public nature),
which are intended, as the name suggests, to allow their institutional representa-
tion in sovereign bodies and the central government and to allow for cooperation
with the central government in matters related to their participation in interna-
tional organisations (Law No. 54/98 of 18 August). These associations, when
established at the national level in accordance with Art. 3 of the aforementioned
Law No. 54/98, acquire the status of a State partner and are conferred the rights
of prior consultation in all legislative initiatives relating to matters within their
competence. There are currently two associations that embody national associa-
tions for this purpose: the Associação Nacional de Municípios Portugueses
(ANMP) and the Associação Nacional de Freguesias (ANAFRE).
The legislature also establishes other methods of municipal association. Un-
der Law No. 45/2008 of 27 August, there are two kinds of associations of mu-
nicipalities: «multi-purpose associations» and «associations for specific purpos-
es». The local multi-purpose associations, called «inter-municipal communities»
(CIM), are legal entities under public law established by municipalities and cor-
respond to one or more territorial units defined according to the Nomenclature
of Territorial Units for Statistics of level III (NTUS III). They are intended to
promote the planning and management of the economic, social and environmen-
tal strategy, articulation of inter-municipal investments and participation in the
management of regional development programs, particularly under the National
Strategic Reference Framework (NSRF). The associations of municipalities for
specific purposes are legal entities under private law established for the common
realization of the specific interests of the municipalities that integrate them and
for the defence of collective interests at the sectoral, regional or local level.
On the other hand, there is a specific type of municipal association in the
metropolitan areas of Lisbon and Porto. Law No. 46/2008 of 27 August states
that the metropolitan areas of Lisbon and Porto are legal entities under public
law and constitute a special kind of association of municipalities covered by the
territorial units defined on the basis of NTUS III of «Grande Lisboa e da Penín-
517
pedro costa gonçalves - ana raquel moniz
Paragraph 1 of Art. 243 of the Constitution ensures that local authorities will
have their own staff. This is a corollary of the administrative autonomy of these
entities, since in the pursuit of their particular and specific interests it is vital for
them to have and manage their own human resources.
Law No.12-A/2008 of 27 February21 establishes the contractual ties, job
profiles and salaries of workers who perform public functions (public officials,
administrative agents and public agents).22 Following the adjustments intro-
duced by Decree-Law No. 209/2009 of 3 September, this law applies to the
municipal administration. Hence, in general, local government employees are
subject to the employment law (the legal regime of public employment), simi-
lar to other public employees.
The legal relation of public employment is concluded through a contract of
employment or service commission under Law No.12-A/2008 (in particular
Arts. 20 and ff.) and paragraph 1 of Art. 2 of Decree-Law No. 109/2009. It is
also possible to conclude contracts concerning the provision of services (see
Arts. 35 and ff. of Act No. 12-A / 2008, and Art. 6 of Decree-Law No. 109/2009).
The management of local government human resources is overseen by the re-
spective governing bodies: the deliberative bodies (the municipal and parish
assemblies) determine the staff,23 and the executive bodies (the city hall and the
parish council) manage the approved staff (see Arts. 3 and 4 of Decree-Law No.
209/2009). It is worth noting that human resource management entails the pos-
sibility of advertising the procedure (open competition) for the recruitment of
workers needed to occupy some or all foreseen (and vacant) approved staff
positions (see Art. 9 of Decree-Law No. 209/2009).
Workers who hold the category of management personnel benefit from a
special legal regime contemplated in Law No. 2 / 2004 of January 15, adopt-
21
Altered by Law No. 64-A/2008, of 31 of December, 3-B/2010, of 28 April, 34/2010, of 2
September and Law No. 55-A/2010, of 31 December.
22
On workers’ categorization, see Ana Neves, «O Direito da Função Pública», in: Paulo
Otero/Pedro Gonçalves, Tratado de Direito Administrativo Especial, vol. �������������������
IV, Almedina, Coim-
bra, 2010, p. 478 and ff.
23
The staff maps contain the indication of the number of positions that the body or service
requires for the development of its activities (see Article 5, No. 1, of the Law No. 12-A/2008).
518
local government in portugal
One way for municipalities to raise money is through local taxes, hoc sensu,
revenues that those entities have the power to tax (i.e., the power to create and
24
See also Ana Neves, «O Direito…», cit., p. 476.
25
On this subject, see Casalta Nabais, «A Autonomia Financeira das Autarquias Locais», in:
Boletim da Faculdade de Direito, vol. LXXXII, 2006, pp. 15 and ff., and «O Regime das Finan-
ças Locais em Portugal», in: Boletim da Faculdade de Direito, vol. LXXX, 2004, pp. 15 and ff.
519
pedro costa gonçalves - ana raquel moniz
define their key elements) or revenues on which they have a holding.26 The
exercise of this taxing power is in conjunction with the determination of the
local property tax; i.e., the tax on the taxable value of rural and urban properties
located in Portuguese territory (see Art. 1 of the Code of IMI). The possibility
of a special levy (derrama)—an addition on the taxable corporate income (see
Art. 14 of LFL)—is also in conjunction with the determination of the local
property tax.
From the perspective of municipal financing, those items subject to taxation
are particularly relevant. Municipalities are entitled to collect the municipal
real estate tax, the municipal tax on vehicles (for the use and enjoyment of mo-
tor vehicles, aircraft and boats) and the special levy [see Art. 10, paragraphs a)
and b) of the LFL]. In turn, the municipalities are entitled to 50% of the revenue
of the municipal real property tax on rustic buildings.
Another source of tax revenue for local governments consists of rates,27
charges and fees, that are based on the supply of a local public service, on the
private use of goods of public and private domain of local government or on the
removing of a legal obstacle to the behaviour of individuals (see Art. 3 of the
Regime Geral das Taxas das Autarquias Locais, RGTAL). They are created by
administrative regulation of the local council. Municipal fees are imposed on
either private activities which have a negative environmental impact or on pri-
vate utilities provided to individuals or generated by the activities of munici-
palities. The latter mainly include, among others, fees for: the maintenance and
enhancing of primary and secondary urban infrastructure facilities; the granting
of licenses; the use and enjoyment municipal public and private property; the
management of traffic and parking areas; the management of public facilities
for collective use; etc. Parish fees follow the same pattern.
Municipal financing has other sources of income apart from tax revenues.
Thus, municipalities receive income from the services rendered and goods sup-
plied under direct management by municipal units or by local services; from
the participation in public resources (calculated in accordance with Arts. 19 and
ff. of the LFL); from fines and penalties imposed by municipal law or regula-
tion; from the income from their own assets, movable or realty, which are ad-
ministered by them, given through concession or transferred for exploration;
from the participation in the profits of companies and the results of other enti-
ties in which the municipality takes part; from the inheritances, legacies and
other donations to the municipality; from the sale of assets, whether movable or
26
See Casalta Nabais, «A Autonomia…», cit., p. 33.
27
On the general regime of local government rates, see, for example, Suzana Tavares da
Silva, As Taxas e a Coerência do Sistema Tributário, CEJUR, Braga, 2008, p. 70 and ff.
520
local government in portugal
immovable; and from loans, including those resulting from the issuance of mu-
nicipal bonds (see Art. 10 of LFL).
Parishes are also financed through equivalent sources (see Art. 17 of LFL).
28
�����������������������������������������������������������������������������������
On public local domain, see Ana Raquel Moniz, «Domínio Público Local: Noção e Âmbi-
to», in: Domínio Público Local, CEJUR, Braga, 2006, p. 7 and ff., and «O Âmbito do Domínio
Público Autárquico», in: Estudos em Homenagem ao Professor Marcello Caetano, vol. I, Facul-
dade de Direito da Universidade de Lisboa/Coimbra Editora, Coimbra, 2006, p. 153 and ff.
29
In the same vein, Freitas do Amaral, Curso de Direito Administrativo, vol. ���������������
II, 2.ª ed. Al-
medina, Coimbra, 2011, p. 576, No. 980.
521
pedro costa gonçalves - ana raquel moniz
there is a territorial match in the spatial scope of the exercise of local govern-
ments’ powers and those of the State (and the autonomous regions). Moreover,
there is no statute which defines precisely the local governments’ assets and
provides details on the kinds of property that are submitted to the dominion
status or which at least indicates the criteria by which this distinction is made.
Despite these difficulties, it is possible to ascertain from some existing leg-
islation which assets belong to the public domain:
– infrastructural road domain, belonging only to the municipality and inte-
grated by the municipal road network (as defined by the Plano Nacional
Rodoviário),30 as well as public transport routes—which include traffic
routes, their subsoil and the corresponding airspace, sidewalks, plants, re-
taining walls, traffic signs, artwork, tunnels and all things natural to the
performance of useful public function in determining the dominion of the
roads—as well as squares and associated landscaping;
– public domain waters: In accordance with paragraphs 2 and 3 of Art. 6 of
Law No. 54/2005 of 15 November, the lakes and ponds located entirely in
the parish or municipal land or in wastelands and municipal or parish com-
mon areas belong to the public domain of the municipality or parish. Also
part of the municipal domain is the rainwater falling on public local lands,
as are the waters born and the underground waters on the same grounds
[see Arts. 6, paragraph f), 7 paragraphs a), c) and f) and 8, paragraph 2].
Finally, the fountains and public reservoirs—also qualified as «public wa-
ters»—belong to the entrusted entity responsible for their administration
and funding [see Arts. 7, paragraph e) and 8, paragraph 2], allowing for an
approximation to the theory of aménagement spécial.
– cemeteries, belonging to both the municipality and the parish.
If the public domain is defined in positive terms, the private domain can be
defined in a residual way: in short, the private domain is comprised of all things
owned by the municipalities that are not included in the public domain (or
which are not submitted to a public domain rule). In this sense, the private do-
main is formed by «all the goods belonging to public entities that are in princi-
ple, though not exclusively, submitted to the laws on property laid down in the
civil law and therefore subject to the private legal trade, without prejudice to
some public law exemptions, where applicable in each case.»31 As we can ob-
30
Decree Law No. 222/98, of 17 July, with the continuous changes of the Law No. 98/99, of
26 July, and of Decree-Law No. 182/2003, of 16 August.
31
����������������������������������������������������������������������������������
Bernardo Azevedo, «O Domínio Privado da Administração», in: Paulo Otero/Pedro Gon-
çalves, Tratado de Direito Administrativo Especial, vol. III, Almedina, Coimbra, 2010, p. 46.
522
local government in portugal
serve from this concept, and similarly from what is true for the public domain,
the concept of private domain concerns both a set of goods and a legal regime.
Since local «private domain» is governed as a rule by private law, the applica-
bility of administrative law features stems from the public «ownership» of
those goods, while in the case of the public domain, the public law regime of
this goods stems from the public function of the goods in question.
The most obvious form of control32 of local entities is the one performed by
other administrative agencies. The concept of administrative control over local
authorities is stated in Art. 242 of the Portuguese Constitution, which provides
that it consists of «verifying compliance with the law by the local governments
and is exercised in cases and in the manner prescribed by law». It is also legally
established by Law No. 27/96. The supervising body is the central government
[see Art. 199, paragraph d) of the Constitution and Art. 5 of Law No. 27/96];
regarding the control of the local governments within the autonomous regions,
the regional governments are the supervising bodies [see Art. 227, paragraph 1,
m) of the Constitution, Art. 69, paragraph e) of the Estatuto Político-Administra-
tivo da Região Autónoma da Madeira, Art. 90, paragraph 1, g) of the Estatuto
Político-Administrativo da Região Autónoma dos Açores and also Art. 1 of the
Regional Legislative Decree No. 6/98/M of the Madeira Autonomous Region].
If, according to Art. 242 the control of legality is intended to ascertain the
lawfulness of the actions of the subordinate entity,33 then the definition of the
32
The adoption of this formula means that there are other forms of administrative supervi-
sion of municipal activity distinct from that of «control». For instance, the functions exercised by
the Ombudsman, who is responsible for the assessment of complaints made by citizens (in par-
ticular under the right of petition set out in No. 1 of Art. 52 of the Constitution), by acts or omis-
sions of public authorities (see Art. 23 of the Constitution).
33
Generally, on the notion of control, see Pedro Gonçalves, O Novo Regime Jurídico da
Tutela Administrativa sobre as Autarquias Locais, CEFA, Coimbra, 1997, pp. 7 and ff.; from an
analitical perspective, André Folque, A Tutela Administrativa nas Relações entre o Estado e os
Municípios, Coimbra Editora, Coimbra, 2004, pp. 289 and ff. (identifying, within the concept,
the functional elements, material, structural and teleological). On the concept of control of law
(one of the classifications of tutela, as an end), see Freitas do Amaral, Curso…, vol. I, cit., pp. 883
and ff. As for the meaning and content of tutela with respect to local governments, see André
Folque, A Tutela..., cit., passim, especially pp. 235 and ff.; José de Melo Alexandrino, «Direi-
to…», cit., pp. 262 and ff.
523
pedro costa gonçalves - ana raquel moniz
34
There is no unanimity in doctrine regarding the constitutional admissibility of revocatory
control. See Paulo Otero, O Poder…, vol. II, cit., p. 806; Pedro Gonçalves, O Novo Regime…,
cit., p. 15; Freitas do Amaral, Curso…, vol. I, cit., p. 888; Maria da Glória Garcia/André Folque,
«Artigo 242.º», in: Jorge Miranda/Rui Medeiros, Constituição Portuguesa Anotada, tomo III,
Coimbra Editora, Coimbra, 2007, pp. 504 and ff., annotations XIV and XV; André Folque, A
Tutela…, cit., pp. 365, 373 and ff.
524
local government in portugal
35
Law No. 98/97, of 26 August, altered by Laws Nos. 87-B/98, of 31 of December, 1/2001,
of 4 January, 55-B/2004, of 31 December, 48/2006, of 29 August and 35/2007, of 13 August.
525
pedro costa gonçalves - ana raquel moniz
federations and their services, as well as metropolitan areas, are subject to the
jurisdiction and to the powers of control by the Court of Auditors and are, ac-
cordingly, bound by the obligation of accountability [Art. 51, paragraph 1, m)].
Similarly, Art. 51 of LFL provides that the accountability of the local govern-
ments, parishes and their associations is remitted to the executive bodies of the
Court of Auditors.
If the Court of Auditors encounters any constituting fact of financial respon-
sibility, as part of its supervisory powers—especially in the case of externally
verified accounts (Art. 54)—, it will refer such cases to the prosecutors (Art.
57) in order to start the procedures stipulated in Art. 58 (trial accounts and fi-
nancial responsibilities). In this context, we must establish a distinction be-
tween two types of resolutions:
– financial responsibility (see Arts. 59 to 64): In cases of misallocation or
misuse of public monies or valuables and unjustified payments, the Court
may require the responsible person (determined in accordance with Arts. 61
to 63) to repay the amounts covered by the infraction, plus the default inter-
est, to which is applied the system of tax debts; in cases of acts of practice,
authorization or sanctioning with malice or gross negligence involving the
non-settlement, collection or delivery of revenue in violation of applicable
legal rules, the Court of Auditors may order the responsible person to repay
the amount not collected by of the State or any public bodies (Art. 60)
– sanctions for financial responsibility (Arts. 65 to 67): In the situations re-
ferred to in paragraph 1 of Art. 65 and paragraph 1 of Art. 66, the Court
may impose fines, depending on the seriousness of the facts and their con-
sequences, the degree of culpability, the amount of material public values
affected or at risk, the hierarchical level of responsibility, their economic
situation, the existence of precedents and the degree of compliance with
any court recommendation.
36
See Isabel Celeste Fonseca, «Direito do Contencioso Administrativo Autárquico», in:
Paulo Otero/Pedro Gonçalves (org,), Tratado de Direito Administrativo Especial, vol. IV,
���������
Alme-
dina, Coimbra, 2010, pp. 309 and ff.
526
local government in portugal
Besides the direct responsibility of local politicians towards the voters, there
are situations of political responsibility before other bodies (institutional liability
policy). This type of liability is also constitutionally imposed at the level of local
government: in accordance with paragraph 1 of Art. 239 of the Constitution, the
37
Altered by Laws Nos. 108/2001, of 28 November, and 41/2010, of 3 September.
38
For purposes of this law, the representative body’s member of the local government holds
political office [see Art. 3, paragraph 1, i)].
527
pedro costa gonçalves - ana raquel moniz
39
See, in particular, José de Melo Alexandrino, «Direito…», cit., pp. 87 and ff., and «O
Défice de Protecção do Poder Local: Defesa da Autonomia Local perante o Tribunal Constitucio-
nal?», in: Direito Regional e Local, No. 5, 2009, pp. 9 and ff.
528
local government in portugal
Ruling No. 74/84, of 10 July, in: Diário da República, I Série, No. 211,
11.09.1984, pp. 2816 and ff.
40
Published in Diário da República, II Série, Parte C, No. 241, 15.12.2009, p. 50513.
529
pedro costa gonçalves - ana raquel moniz
Ruling No. 248/86, of 16 July, in: Diário da República, I Série, No. 212,
15.09.1986, pp. 2559 and ff.
Ruling No.330/94, of 13 April, in: Diário da República, II Série, No. S-200,
30.08.1994, pp. 8996-(4) and ff.
Ruling No. 390/98, of 26 May, in: Diário da República, II Série, No. 259,
09.11.1998, pp. 15834 and ff.
Ruling No.57/95, of 16 February, in: Diário da República, II Série, No. 87,
12.04.1995, pp. 4041 and ff.
Ruling No. 93/2000, of 15 February, in: Diário da República, II Série, No. 76,
30.03.2000, pp. 6051 and ff.
Ruling No. 107/2003, of 19 February, in: Diário da República, II Série, No. 95,
23.04.2003, pp. 6214 and ff.
Ruling No. 711/2006, of 29 December, in: Diário da República, II Série, n.º 15,
22.01.2007, pp. 1738 and ff.
Alexandrino, José de Melo: «Direito das Autarquias Locais», in: Paulo Otero/
Pedro Gonçalves (org.), Tratado de Direito Administrativo Especial, vol.
IV, Almedina, Coimbra, 2010, pp. 11 and ff.
Amaral: Curso de Direito Administrativo, vol. I, 3.ª ed., Almedina, 2006 (pp.
479-674).
Andrade, José Carlos Vieira de: «Autonomia Regulamentar e Reserva de Lei»,
in: Estudos em Homenagem ao Prof. Doutor Afonso Rodrigues Queiró, Bo-
letim da Faculdade de Direito, Coimbra, 1984, pp. 1 and ff.
530
local government in portugal
(B) Periodicals
531
pedro costa gonçalves - ana raquel moniz
532
Chapter 22:
LOCAL GOVERNMENT IN ROMANIA
Simina TANASESCU*
During the medieval period in Romania, and even today, the locus of local
self-government were the villages, which were grouped into associations that
constituted historic regions (counties). These, in turn, established various kinds
of relations and alliances among themselves and with neighbouring lands. Over
time, the term judeţ (county) substituted ţinut, and signified the administrative
coordination among local entities providing self-government. Traditionally and
historically, the village (obştea sătească) was the local self-government unit,
while judeţ designated a local entity between the State and the local self-gov-
ernment unit.1
The modern Romanian state was founded in the later half of the 19th cen-
tury and adopted the uniform structure of France’s institutional model for local
government. The village was replaced by an imported entity called the «com-
mune». The success of this «transplant» is still open to question. Although vil-
lages lost their legal significance as of 1912, a century later people still think in
terms of the local entity. Villages were the tool that allowed local self-govern-
ing, and they remain in the collective mind, even though legislation has trans-
ferred the role of villages to the newly created «commune» or municipality.
After the unification of Moldova and Wallachia in 1859, Alexandru Ioan
Cuza initiated the modernization of the newly created state, which included
administrative reform. Romania was inspired by the French and Belgian mod-
* The author would like to express her most sincere thanks to assistant professor Bogdan
Dima for all his invaluable help.
1
In the past, the word «region» denoted a geographical area, while the English term «coun-
ty» referred to a sub-national, supra-local administrative unit. Today, «region» is overwhelm-
ingly used to connote an administrative, socio-economic and political unit, regardless of the di-
versity among units in each state.
533
simina tanasescu
els of local administration and introduced rural and urban «comunes» (minici-
palities) as public legal persons, representing the first level of local govern-
ment. The law also declared that counties would represent the intermediate
(coordination) level. Villages were obliged to regroup into larger rural
«comunes» and pool the scant resources they had for economic survival. They
also created a local budget to project further development.
The administrative organisation recreated a unified and central system of
coordination that reflected European models and the existing tradition of cen-
tralism.2 «Comunes» and counties were not the expression of a pre-existing
local autonomy, and they provided adequate conditions for the uniform im-
plementation of legislation.3 Communal and county councils were to be elect-
ed at the local level, while the mayor and the prefect who were agents of
central government in the territory, would be appointed as presidents of these
councils.
The Second World War obliged Romania to adopt a collective effort and
centralism took the upper hand again. Local self-government was not a top
priority during the Communist regime, and it wasn’t until the events of De-
cember 1989, that decentralisation became part of the government’s agenda,
as a result of international political pressure (Council of Europe, European
Union).
Local government was divided into two tiers, and this has remained a con-
stant feature despite the (all too) frequent changes in Romania’s system of ad-
ministrative organisation. Driven by the priority to build a nation–state and a
functional and coherent institutional structure at that level, Romania initially
considered local self-government a secondary objective. Local authorities were
originally conceived as being complementary to the central decision-making
tier and enjoyed autonomy insofar as it did not undermine the general interests
of the nation. This helps to explain an existing tendency to tolerate possible
intervention by central government in local affairs.
Local self-government is not a firmly established feature of Romanian insti-
tutional culture, at least in comparison with other European countries. The
process of decentralisation which started soon after December 1989 can be con-
sidered a challenge stemming from Romania’s need to synchronise with evolu-
tions on a global level, but it is not clear that this would necessarily produce
fully fledged entities endowed with local autonomy. The doubt arises from
what appears to be a certain failure to incorporate the basic concepts and prin-
ciples of local self-government. This is evident in the many «borrowed con-
2
Indeed, according to historians, State organisation of Romanian historic provinces has al-
ways and uninterruptedly been unitary and centralised». See Filitti, Ioan C., «Despre vechea or-
ganizare administrativă a Principatelor Române», Revista de drept public III n°2 (1929):271-317.
3
Emil Cernea, «Dinamica legislaţiei privind descentralizarea administrativă», Revista de
drept public (serie nouă) XXVI, n°1(2000):26-32 .
534
local government in romania
535
simina tanasescu
4
According to the Romanian National Institute of Statistics (www.insee.ro).
536
local government in romania
5
Significantly, although paragraphs 4 and 5 of article 4 of the Charter are the object of an
interpretative clause, article 4 paragraph 6 of the Charter is reproduced in article 8 paragraph 1 of
Law no.215/2001 on local public administration and in Government Decision no.521/2005 re-
garding the procedure for consulting the associations of local authorities on the drafting of legal
instruments.
6
Dana Tofan, Drept administrativ, vol. I, ediţia 2, All Beck, Bucureşti, 2009, p. 254.
7
Ştefan Deaconu, «Bună guvernare şi descentralizare», Revista de drept public (serie nouă)
XXXI, n°3(2003): 21-26.
537
simina tanasescu
regarding local self-government does not seem to have captured much attention,8
unlike decentralisation which has been the object of dedicated and detailed
analysis.9
The general legal framework for decentralisation and local self-government
is provided in a set of laws that have changed significantly over the past dec-
ade.10 The two most important ones are the laws concerning local public admin-
istration and local public finance.
The 1991 Local Government Act was substantially improved by a 2001 stat-
ute, which was revised in 2006 and modified and completed in 2008. All of this
legislation has brought about real progress in terms of local self-government.
8
Local self-government is a subjective right, while administrative decentralisation is a sys-
tem implied by local self-government». Dana Tofan, op.cit., p.255. In fact, the author refers and
also assumes a definition of local self-government, which had been established by scholars be-
tween the two World Wars. See Anibal Teodorescu, Tratat de drept administrativ, vol. I, ediţia a
II-a, Institutul de Arte Grafice Eminescu S.A., Bucureşti, 1929, p. 286. Also see Eugen Popa,
Autonomia locală în România, Ed. All Beck, Bucureşti, 1999.
9
Dana Apostol, «Probleme actuale ale descentralizării administrative (I)», Studii de drept
românesc n°3-4 (1991):141-148; Dana Apostol, «Probleme actuale ale descentralizării adminis-
trative (II)», Studii de drept românesc n°2 (1993):103-113; Mircea Preda, «Centralizare şi descen-
tralizare în administraţia publică», Dreptul n°9(1995):42-54; Virginia Vedinaş, «Centralizare,
descentralizare, federalism», Analele Universităţii din Bucureşti, seria Drept (1997):21-38; Emil
Cernea, «Dinamica legislaţiei privind descentralizarea administrativă», Revista de drept public
(serie nouă) XXVI, n°1(2000) :26-32; Constantin Argentoianu, «Descentralizare administrativă şi
regionalism», Revista de drept public (serie nouă) XXVII, n°2(2001): 97-109; Stefan Deaconu,
op.cit., p.21-26; Rodica Narcisa Petrescu, «Consideraţii asupra noii legi-cadru privind descetrali-
zarea», Revista de drept public (serie nouă) XXXI n°1(2005): 35-45; Radu Carp, «Strategii şi
propuneri de reformă a administraţiei publice în perspectiva integrării europene», Revista de drept
public (serie nouă) XXXII n°2(2006): 102-115, etc. This list should include the translation into
Romanian, as early as 1991, of Xavier Frégé, Descentralizarea, Humanitas, 1991, Bucuresti.
10
The most important ones are: Constitution of Romania of 8 December 1991, as subse-
quently revised in 2003; Act no.215/2001 on local public administration (Monitorul Oficial al
României no.204/23.04.2001), subsequently amended; Framework Act no.195/2006 on decen-
tralisation (Monitorul Oficial al României no.453/25.05.2006), as subsequently amended; Act
no.315/2004 on regional development in Romania (Monitorul Oficial al României
no.577/29.06.2004), as subsequently amended; Act no.273/2006 on local public finances (Moni-
torul Oficial al României no.618/18.07.2006), as subsequently amended; Government Order
no.36/2002 on local taxes and charges (Monitorul Oficial al României no.92/2.02.2002), as sub-
sequently amended; Act no.67/2004 local elections (consolidated version published in the Moni-
torul Oficial al României no.271/29.03.2004), as amended; Act no.393/2004 on the conditions of
office of locally elected representatives (Monitorul Oficial al României no.912/7.10.2004), as
subsequently amended; Act no.340/2004 on the institution of the prefect, consolidated version
published in the Monitorul Oficial al României no.225/24.03.2008 as subsequently amended; Act
no.2/1968 on the administrative organisation of the territory of the Socialist Republic of Romania
(consolidated version Buletinul Oficial no.54-55/27.07.1981), as subsequently amended; Decree
no.284/1979 on the establishment of districts (sectoare) in the municipality of Bucharest (Bu-
letinul Oficial no.69/1.08.1979); Act no.350/2001 on town and country planning (Monitorul Ofi-
cial al României no.373/10.07.2001), as subsequently amended; Act no.188/1999 on the civil
service conditions of service (Monitorul Oficial al României no.600/8.12.1999), as subsequently
amended.
538
local government in romania
Inspired by the ECLSG, the Act now includes the principles of subsidiarity and
proportionality among the responsibilities of local authorities and the means
available to them, among other issues. It should be noted that local councils ex-
ercise local self-government in keeping with the subsidiarity principle and are
free to decide the tasks to be performed to meet the needs of local communities.
The list of their own attributions is quite long, and delegated attributions may
always be added in the process of decentralisation (see point 4, below).
Another important piece of legislation, the Local Public Finance Act, passed
in 1998, was later replaced by an improved version (from the point of view of
local self-government) in 2003 (see point 7, below).
The above legislative framework is supplemented by other rules. First, a
range of other sector-specific measures, which, all too often, provide further
transfers of responsibilities or expenditure (public services) from the central to
the local level. Some of these transfers are merely tasks assigned by central
government to local government along with the resources (financial) necessary
to execute them, without the local authorities having any real decision-making
powers (e.g. police, emergency services, and education and social protection).
Other important legislation is the Annual Budgetary Legislation, which lays
down the total sum of funds transferred from the central government budget to
local budgets in the form of equalisation or «conditional grants».
Lastly, article 14 of the Romanian Constitution provides that «The Capital of
Romania is the Municipality of Bucharest». Law no.2/1968, Decree no.284/1979
on the establishment of boroughs (sector) in the municipality of Bucharest and
Chapter V of Law no.215/2001 on local government, provide for special organisa-
tion of the municipality of Bucharest, which still lacks a comprehensive, specific
regulation. The capital is organized into six territorial administrative sub-entities
(boroughs), each of which has a local council and a directly elected mayor. The
administrative organisation of Bucharest can be modified only by law.
Although this general legal framework allows local public administration to
create sub-entities in any municipality, in practice, this only happened in the
capital city. The wording of the Act on the status of boroughs is vague and in-
complete and does not state whether they have legal personality. In our view,
boroughs have the right to local self-government just like any other administra-
tive-territorial unit. This idea would avoid confusion and establish the bounda-
ries for interpretation. This is all the more necessary, because the Romanian
Constitutional Court has already handed down two decisions11 concerning the
status of the capital and its boroughs, following actions brought by the general
council of the municipality of Bucharest.
11
��������������������������������������������������������������������������������������
Decision no.319/2010 and Decision no.843/2009 on pleas of unconstitutionality concern-
ing certain provisions of Law no.273/2006 on local public finances and Law no.215/2001 on lo-
cal public administration.
539
simina tanasescu
12
A contrario to this position, in a decision as recent as 2008, the Constitutional Court of
Romania ruled that « local autonomy cannot be reduced, as argued in the present case, only to the
level of comunes and towns ». (see Decision no.822/2008).
540
local government in romania
541
simina tanasescu
13
It is not entirely irrelevant to mention that there are four associations of local authorities in
Romania, although there are only two tiers of administration and three types of localities. Asso-
ciations lobby the central government, and their formal requests, backed up by pressure from
international forums, have speeded up the «democratisation» of the decentralisation process.
Even though the consultation process has become compulsory according to several legislative
measures at a central level (such as article 8 of Law no.215/2001 and article 3 of Government
Decision no.521/2005) this does not seem to cover the core practical problems nor does it pro-
duce the results expected by the two sides: In practice, the principle appears to have been ac-
cepted.
542
local government in romania
rect, secret and freely expressed suffrage. Even in small «comunes», the mem-
bers are elected by proportional representation, which normally results in coali-
tion majorities made up of several lists or parties. The number of members may
vary from 9 to 31 according to the population of the administrative unit. The
Constitution and relevant legislation state that self-government must be exer-
cised at this level, but despite this, the main attributions of local council differ
little from those of county councils. Financial resources needed to support these
attributions, however, are harder to come by at the local level than at county
level.
14
Law no. 393/2004 regarding the conditions of office for local elected representatives.
543
simina tanasescu
death; and the impossibility of exercising the office due to a serious, certified
illness that impedes the proper execution of duties for a period of six months of
a calendar year. The mayor’s term of office may also be terminated after a local
referendum to bring about his/her dismissal. The prefect is notified of the ces-
sation of the mayor’s term of office by an order, against which the mayor can
appeal to the administrative tribunal within 10 days of the notification. The
mayor’s term of office is automatically suspended if he/she is placed in preven-
tive detention, and this may be appealed before the administrative court.
5.3. Associations
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local government in romania
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local government in romania
(all too) frequent changes (sometimes annual) in the rules concerning the shar-
ing of revenues between central and local government and the introduction and
subsequent cession of certain budgetary transfers from a central to a local level
(classic examples such as the heating grants for the population during particu-
larly hard winters, and road building and maintenance grants) have contributed
to a certain lack of clarity.
At the same time, some special funds for investments have been retained or
even established, but are managed at the central level, because they are largely
supplementary funds for investments. Quite often, funds that should go to local
government actually remain in the national budget and are allocated to various
line ministries. To mention an example, Parliament voted to amend the tax code
in January 2008, and alter the use of sums generated from duties and taxes on
property transactions, and this had an indirect but serious impact on local self-
government. While in 2007, the revenues from these duties and taxes were
shared out on the basis of 40% to local budgets, 50% to the consolidated na-
tional budget and 10% to land/property registries, in 2008, the whole amount
went to the national budget. In this context, article 9, paragraph 2, of Law
no.215/2001 provides that the financial resources at the disposal of local public
authorities should be commensurate with their powers and responsibilities.
The local budgetary process is an endless source of «skirmishes», because
its design causes major difficulties for local authorities. Specifically, local au-
thorities cannot adopt their annual budgets before the national budget is passed,
and sometimes not even before the start of the relevant fiscal year (beginning of
January), because they must first know the rules established in the national
budget before they can establish their own. Annual changes in general budget-
ary rules are still common practice.
Despite the efforts of national authorities to incorporate the principles of
the European Charter into legislation, the method of sharing resources be-
tween the central level and the regulated local level is criticised in terms of its
clarity and transparency. Inappropriate interventions by the central level in the
budgetary decision-making process or various attempts at political influence
at the local level are possible. As regards taxation, for example, most of these
powers remain the prerogative of the «centre». The delays in transferring
funds tend to impede territorial democratisation, and at an «intermediate» lev-
el, the county plays almost the same centralising role played by the state at the
highest level.
In practice, the county council remains strongly politicised, particularly re-
garding the budget, and the distribution of resources. The county council re-
ceives the county budget from the «centre» and shares it among the «comunes».
The criteria are fairly clear but the allocated budgets don’t always comply with
them.
On the other hand, local authorities continue to complain about the lack of
real self-government insofar as the allocation of responsibilities to local au-
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local government in romania
nicipalities (e.g. communal roads and town streets, social houses, public mar-
kets, lakes and beaches that are not declared to be of national or county interest,
local statues and monuments, etc.).
State and local authorities can also own assets having the legal nature of
«private» property, which is governed by common civil law. The private do-
main of local authorities is defined in article 4 of Law no.213/1998 and consists
of assets belonging to the local administrative units which are not public prop-
erty assets.
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simina tanasescu
Ministers and heads of other central public administrations can delegate man-
agement and supervisory powers to prefects.
Mayors issue regulatory or individual orders and make unilateral adminis-
trative decisions. The secretary of the administrative-territorial unit communi-
cates these acts to the prefect within five days of their signature, thus allowing
the prefect to review their legality. If the prefect considers the act or measure
partially or entirely illegal, s/he can request that it be revised or revoked. If the
request is refused, the prefect can bring the matter before the administrative
tribunals and ask that the decision be set aside.
Law no.554/2004, on administrative litigation, also permits the following le-
gal entities to submit a complaint regarding the legality of an administrative act
issued by local authorities: the National Agency of Civil Servants (when rights
and interests of civil servants are at stake) and the Public Ministry or national
Ombudsman. These entities can initially ask that the illegality be corrected im-
mediately, or suspended while pending modification. In general, most plaintiffs
request suspension of the act, but the administrative court decision to do this is
discretionary. Regardless of the request, no legal act issued by a local authority is
suspended or withdrawn from enforcement without due process of law.
The Romanian constitutional and legislative framework does not clearly ad-
dress the issue of the «fundamental right» to local autonomy. On the one hand,
article 3 of the Local Government Act expressly provides that local self-gov-
ernment is «a right exercised by the local councils and mayors and by the coun-
ty councils», while on the other hand, article 9 states that «the «comunes, towns
and counties are entitled to their own financial resources». Furthermore, article
20 of the same legal rule states that «comunes, towns, municipalities and coun-
ties are administrative-territorial units in which local self-government is exer-
cised and the local public authorities are organised and operate». Finally, article
1(i) provides that «the administrative-territorial units are the comunes, towns
and counties; under certain conditions specified by law, towns are designated
municipalities». The legislator should clarify the legal regime of self-govern-
ment, particularly since the Constitution seems to be clear that its locus is at the
level of local councils.
Moreover, the principle of local autonomy is formally recognised in articles
120 and 121 of the Romanian Constitution. The chapter dealing with «Public
Administration» is dedicated to «Local public administration». Local self-gov-
ernment is referred to as a core constitutional principle, but the Constitution
does not stipulate its content or guarantees. These are established by «organic
Acts», as pointed supra. However, the practical distinction between «organic»
and «ordinary» acts is often unclear and creates situations in which «organic»
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local government in romania
acts are revised through «ordinary» acts and vice versa. The fact that «organic»
acts address the content and guarantees granted to local self-government, does
not necessarily ensure that it will be stable or assigned an important status.
On the other hand, Romanian legislation does not grant local authorities the
right to lodge a legal remedy to secure the free exercise of their right to auton-
omy, because self-government in Romania is not conceived as a fundamental
right. Local authorities, however, can take legal actions before ordinary courts
to demand compliance with the provisions of the Constitution and/or domestic
legislation that affect them directly. Similarly, local public authorities may de-
fend their right to self-government through remedies involving their composi-
tion and internal organisation, although these remedies cannot be regarded as
effective legal protection for self-government within the meaning of the
ECLSG. Also, not all local authorities are entitled to a direct appeal before the
Constitutional Court, although there are several decisions in which the Consti-
tutional Court has ruled in favour of local authorities. The truth is that the Con-
stitutional Court has very rarely been asked to rule on issues pertaining to local
self-government (see, point 12.1, below).
15
Law no. 151/1998 on regional development in Romania (Monitorul Oficial al României
n°265/16.07.1998).
16
Law no. 315/2004 on regional development in Romania, (Monitorul Oficial al României
n°577/29.06.2004).
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12.2. Bibliography
(A) Books
553
Chapter 23:
LOCAL GOVERNMENT IN SLOVAKIA
Milan BUČEK
Juraj NEMEC
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milan buček - juraj nemec
ity of state bodies in local areas, unless these bodies were given special powers
by other laws. Regional and district offices of state administration were given a
broad range of tasks within this structure. Other governmental units included
municipalities and military counties that performed state administration re-
sponsibilities under special laws. The «1996 reform» in Slovakia aimed to in-
crease the effectiveness and quality of public administration and to create a
customer-friendly and responsive system serving citizens. The costs of the re-
form were much higher than planned, and results were very limited (Audit us-
trednej statnej spravy, 2000).
After the general elections in 1998, the new liberal government returned to the
issue of public administration reform as a key goal. Accession to the EU required
that regional self-government authorities be created and operationalized as a first
step in reform. The later phases of this wave of reform (which took place after the
2002 elections) focused on decentralization, by executing a massive transfer of
competences from state to local and regional authorities and by promoting a radical
change in the state administrative structure, marked by a return to the specialized
system and the abolishment of the district offices. The administrative and fiscal
decentralization measures that occurred during 2000–2005 set the foundation for
Slovakia’s current system of public administration, where local and regional self-
government supply most public services (see budgetary data in Section 8).
Decentralization measures marked the last important change in the Slovak
self-government system. No important changes were introduced during Prime
Minister Fico’s coalition period (2006-2010) and those who were actually im-
plemented are no longer a priority today. Important problems such as excessive
financial deficits will likely be handled through savings rather than structural
changes. Table 1 below provides different economic indicators in Slovakia:
The Slovak Constitution was ratified on 1 September 1992, and became effec-
tive on 1 January 1993. It was modified in September 1998, to allow for the direct
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local government in slovakia
election of the President, and later amended in February 2001 to allow Slovakia
to apply for NATO and EU membership. The head of executive branch is the
President, who is elected by direct, popular vote for a five-year term. The head of
government is the Prime Minister. The Cabinet is appointed by the President on
recommendation of the Prime Minister. The legislative branch is represented by
the unicameral National Council of the Slovak Republic (Narodna Rada Sloven-
skej Republiky) with 150 seats; the members of Parliament are elected on the
basis of proportional representation and serve a four-year term. The judicial
branch is represented at the top by the Supreme Court (judges are elected by the
National Council) and by the Constitutional Court (judges are appointed by the
President from a group of nominees approved by the National Council).
Two tiers of self-government exist in Slovakia: municipalities («obce») and
self-governing regions («samospravne kraje»).1 Cities («mesta») are munici-
palities that are declared as «cities» by the National Council of the Slovak Re-
public. Today, there are 138 «cities» in Slovakia. Special laws regulate the le-
gal status of the city of Kosice and of the capital, Bratislava. By 2010, there
were 2,883 municipalities in Slovakia and 8 self-governing regions: Bratislava,
Trnava, Nitra, Trenčín, Žilina, Banská Bystrica, Prešov and Košice.
Territorial fragmentation is a problem on both levels. On the one hand, the
number of municipalities is extremely high, and has increased continuously since
1989. The most part are very small municipalities: 68% have populations of less
than 1000 inhabitants. On the other hand, regional authorities are not large enough
to fulfil the criteria for NUTS II (under the EU cohesion policy terminology) and
have been classified as NUTS III, which creates a potential to increase transaction
costs in managing EU funds and in executing other responsibilities.
The Slovak Republic adopted the ECLSG in 1999, with reservations, agree-
ing to adhere to only the following parts: Article 2; Article 3. Part 2 ; Article 4.
Parts 1, 2, 4 to 6; Article 5; Article 6. Part 1; Article 7. Parts 1, 2 , 3; Article 8.
1, 2 a , and 3; Article 9. Parts 2, 3, 4 a and 8; Article 10. Part 1; Article 11. By
1 November 2002, the Slovak Republic had also accepted Article 6. Part 2, and
on 7 September 2007, all the remaining parts were also accepted. The Charter
was incorporated as an «acceptance of an international treaty», and according
to the Slovakian Constitution, international treaties are approved by Parlia-
ment, and will superseded domestic laws. The full content of the ECLSG was
accepted once national legislation was in line with all parts of the Charter.
1
In Slovak, the closest translation of «local self-government» is «miestna samosprava».
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milan buček - juraj nemec
The main source of local and regional self-government law is the Constitu-
tion. Chapter 4 states that Territorial Self-Administration (articles 64-71) pro-
vides all of the main principles for the organization of territorial self-govern-
ment, especially:
– The municipality is the basic element of territorial administration. The
municipality is an independent territorial and administrative unit of the
Slovak Republic, comprised of persons who reside permanently in its ter-
ritory. The self-government of higher territorial units and their bodies will
be established by law.2
– The municipality is an entity with full legal personality that, under condi-
tions established by law, manages independently its own property and fi-
nancial resources. Financing to cover its needs is, first and foremost, de-
rived from its own revenues, and also from state subsidies.
– The municipality decides autonomously on matters of local administra-
tion. Duties and restrictions may be imposed on the municipality only by
law. Territorial self-government is implemented by meetings of commu-
nity residents, by local referendums or through community bodies.
– The municipality may issue overall binding decrees in matters of local
administration.
– Municipal bodies include the municipal assembly and the mayor.3 The
municipal assembly is composed of «deputies», who are elected by secret
ballot, on the basis of a general, equal and direct right to vote. The mayor
is elected by citizens of the community by secret ballot and under the same
rights and conditions as the elections for deputies. The mayor constitutes
the community’s executive body, implements community administration,
and represents the community in all public functions and acts.
– The execution of State administration tasks can be transferred by law to
the local community. The costs associated with the execution of State ad-
ministration, transferred in this manner, are covered by the State.
2
The Constitution includes direct provisions regarding municipalities, but not about region-
al bodies.
3
The highest ranking executive political official in cities is called the «primator» or lord-
mayor. In municipalities without city status, this figure is referred to as the «starosta».
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local government in slovakia
Within the limits set by the laws pertaining to municipal and regional
self-government, both levels of local government have their own budgets
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and assets. Local governments may issue ordinances that bind all individ-
ual or corporate bodies within their jurisdiction. Only parliamentary acts
can supersede or invalidate these ordinances. In some cases, local authori-
ties may be delegated additional powers to administer for the State, with
State funds. Any modification of the powers of local authorities must be
decided by Parliament. Barring statutory exceptions, local authorities are
independent of State supervision. All valid decisions made by municipali-
ties and State authorities are reviewable by the courts, in application of the
«cassation» or repeal principle. The plaintiff must ask for redress in the
appeals stage of the procedure, without which the suit will not be allowed
to proceed.
Local key bodies are elected directly by the inhabitants. Elected mayors
head the municipal offices. As the highest executive officers, they summon and
conduct the sessions of the local representative bodies, represent the office and
the municipality, and decide in all matters of local administration, except those,
which pursuant to law, are decided by the municipal assembly.
Regional authorities are also elected directly by the local population. Elect-
ed «regional presidents» head regional administrative offices. As the highest
executive officer, the «regional president» summons and conducts the sessions
of regional representative bodies, represents the office and the region, and de-
cides in all matters of local administration, except those that are decided on by
the regional assembly, according to the Law.
Each municipality or region has a chief auditor, who is responsible to the
municipal or regional assembly and is elected by the said municipal or regional
assembly on the recommendation of the mayor or regional president. This of-
ficial inspects local finances and accounts, the management of local property
and assets, and reports on the budget and final accounts.
Local authorities may freely associate with other local bodies and form re-
gional or other interest group organisations, to decide on and organize matters
specifically transferred to them by the constituent authorities.
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ing investments and the use of local resources. They also control the new busi-
ness activities, and issue positions on business plans if they affect the interests
of the municipality’s population. They create and protect healthy living and
working conditions, they promote environmental protection and provide condi-
tions for education, culture, artistic hobbies, exercise and sports. Municipalities
also approve territorial planning and zoning documents.
Municipalities establish, incorporate, cancel and control their own budget-
ary sub-units and bodies, as well as other local legal entities, in compliance
with special regulations. They also provide an array of services, including
police and fire fighting, local public transportation in big cities (Bratislava,
Kosice, Zilina, Presov and Banska Bystrica), construction, maintenance and
management of public space, local roads and parking places, green areas,
public lighting, market places, cemeteries, local water resources and wells,
water purification plants in small municipalities, sewerage, construction,
maintenance and management of local cultural establishments, health service
establishments, leisure and tourist establishments, infant homes, basic social
services (day care), nature and heritage protection, culture and artistic hob-
bies, etc.
The Transfer of Competences Act is particularly important in that it defines
the competences to be transferred to regional and local authorities, most of
which were delegated in 2001-2002. Municipalities were given new responsi-
bilities in several areas including: roadways, water management, citizen regis-
tration, social care, environmental protection, education (elementary schools
and similar establishments), physical education and sports, theatres, health care
(primary and specialized ambulatory care), as well as regional development
and tourism. Several of these competences were reallocated from direct minis-
terial responsibilities (hospitals, education, etc.). The most important State
functions delegated to municipalities were the building permits and citizen reg-
istration.
Regional authorities are responsible for competencies in areas of roads and
highways, railways, road transportation, civil protection, social care, territorial
planning, education (secondary education), physical education and sports, thea-
tres, museums, galleries, local culture, libraries, health care (polyclinics and
local and regional hospitals), pharmacies, regional development and tourism.
When State administration delegates responsibilities to regional self-govern-
ments, these become the second tier in the decision–making process.
In this section, we briefly describe the main aspects of local and regional
bodies organization in Slovakia (except for these mentioned in the previous
section).
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The municipal council and the mayor are elected by direct election. Their
term of office begins the day the newly elected council is sworn in. The number
of council members as defined by the law is as follows:
a) Up to 40 inhabitants: 3
b) 41 to 500 inhabitants: 3 - 7
c) 501 to 1,000 inhabitants: 5 - 7
d) 1,001 to 3,000 inhabitants: 7 - 9
e) 3,001 to 5,000 inhabitants: 9 - 11
f) 5,001 to 10,000 inhabitants: 11 - 13
g) 10,001 to 20,000 inhabitants: 13 - 19
h) 20,001 to 50,000 inhabitants: 15 - 25
i) 50,001 to 100,000 inhabitants: 19 - 31
j) More than 100,000 inhabitants: 23 - 41
The division of responsibilities between the council and the mayor may be
described as follows:
(A) The Mayor or Lord-Mayor:
– Calls and leads the meetings of the municipal assembly and signs the min-
utes of the meeting.
– Executes public administration in the municipality.
– Represents the municipality in relations with State administration and le-
gal and private entities.
– Decides on all municipal matters, except those reserved by law or regard-
ing the municipal statute, or topics reserved for the municipal assembly.
(B) The Municipal assembly:
This body decides on all major aspects of municipal life, especially those
delegated specifically to it, such as:
– Defining the rules of municipal financial management, management of
municipal ownerships and management of State property used by the mu-
nicipality. It approves all major acts concerning ownerships, and controls
the use of municipal ownerships;
– Approving the municipal budget and its amendments, and controls the use
of municipal funds. It also approves the final budgetary accounts and the
emission of communal bonds, and decides on credits and guarantees;
– Approving he territorial plan for the municipality or a part of it, and estab-
lishes priorities in the development of all areas of municipal life;
– Establishing or abolishing municipal taxes and municipal fees, and other
tax-related aspects;
– Calling a municipal referendum and public meetings;
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local government in slovakia
The regional body council and the head or President of a region are also
elected by direct election. Their term starts on the day the newly elected council
is sworn in. The number of deputies to the regional assembly is determined by
the region – one deputy per 12-15,000 inhabitants. The roles of the assembly
and the head/president are defined in a similar way as for municipalities (see
above).
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milan buček - juraj nemec
4
The micro-region Terchovska dolina was created under Law 369/1990 on municipalities and
the laws that regulate associations. It represents the voluntary and independent interest of member
municipalities to associate. The goal of the association is to coordinate self-government activities
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local government in slovakia
Table 2
Data on employment and salaries in local authorities
Employment and salaries
Number of
of employees salary
2009 2009 EUR
Organizations owned by self-governments 10,914 193,989 665.32
Municipal offices 2,925 21,401 881.79
Regional offices 8 1,620 1,100.37
Commercial organizations 105 16,420 727.70
Classic budgetary organizations 7,262 122,926 618.59
Other budgetary organizations 583 29,262 648.54
Source: Statistics Office of Slovakia.
among members to carry out the «Clean river Vah» program, provide local public services, develop
tourism, protect and develop the environment on a local and regional level, and fundraise. To ac-
complish these tasks, the association has the right to establish companies and other legal bodies, or
to become a part of such bodies. The association represents all of its members in relations with state
administration bodies, international bodies and other legal subjects (for selected basic facts, see:
http://www.mikroregion-td.sk/content/view/29/29/).
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Following the elimination of the Civil Service Office (2005), all human re-
source management processes were fully decentralised. There are no formal
rules governing career progression. Normally, a career plan and annual updates
are created for each professional employee. No specific training is needed to
become an employee of a municipality (except for those in civil service posi-
tions). During their career, employees may engage in many types of training
programs organized by the Association of Municipalities, the Ministry of Inte-
rior, some central Departments, and also by many private and non-profit bod-
ies, including universities.
The performance of the local employees is evaluated by the head of the mu-
nicipal office, but there are no fixed rules for this process.
The Labour Code defines very specific cases in which employment under
contract can be terminated (such as continuous non-fulfilment of obligations,
consumption of alcohol during the office hours. etc.). The code defines the
specific procedure for each case of termination. A final remark is here suitable:
too high a level of decentralisation of human resources management in local
authorities is the result of greater autonomy, but also a lack of central coordina-
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local government in slovakia
tion. From this perspective, Slovakia was strongly criticised in the recent SIG-
MA OECD report on civil service (SIGMA OECD. 2008).5
Revenues items:
5
The report stated that: «Slovakia is the country with a major gap in terms of civil service
management. Slovakia used to have a civil service office that was the strongest in the region. The
Civil Service Office not only played a standard role in the management of reform and in the control
of implementation, but it also had far-reaching powers in recruitment, examination, selection and
evaluation, as well as in the control of staffing and personnel costs (cf. «systematisation»). .. Since
the abolition of the Civil Service Office, civil service management in Slovakia has officially returned
to the Ministry of Labour, where it was located before the implementation of the Civil Service Act in
2002. …The Civil Service Department therefore lacks the capacity to prepare civil service reform or
to control the implementation of the Civil Service Act. .., the disintegration of the civil service and
heterogeneity in terms of management practices are rapidly increasing».
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milan buček - juraj nemec
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local government in slovakia
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milan buček - juraj nemec
Source: www.finance.gov.sk
The planned sum of grants is 434,288 thousand €. Most of grants are ex-
pected from the Ministry of Education to cover delegated responsibilities in the
secondary schooling (400,979 thousand €).
Table 6 lists regional self-government expenditures according to the func-
tional classification, that is, according to the services in which the monies are
spent (in thousand €).
Source: www.finance.gov.sk
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local government in slovakia
nomic activities through municipal or regional firms whose objectives may not
be aimed specifically at public service (forest management, local business).
Municipal or regional property in Slovakia consists of assets, ownership
rights and ownership rights of all bodies established by municipalities or re-
gions. Municipal (and later, regional) property in Slovakia was established in
three main phases (see, for example, Papcunova and Balazova, 2006):
1. First phase, 1991-1993: municipalities received many property holdings
during the privatization and restitution process.
2. Second phase, 1994-2001: the most common way of obtaining new prop-
erty in this phase was to own constructions financed partly by transfers
and from municipalities’ own resources.
3. The third phase occurred after 2002, and is associated with the decen-
tralization processes: assets (such as schools and health care establish-
ments) were transferred with new responsibilities. Regional self-govern-
ment property was also constituted at this time. This phase ended in 2005
and today, the most common way to obtain new assets is to own or co-
finance investments (many of which are financed with EU funds).
Municipalities and regions can use their properties for the following pur-
poses: (a) Fulfilling their own administrative responsibilities and the State-del-
egated ones; (b) Supplying local public services; (c) Engaging in commercial
activities. Realty cannot be granted to any other legal entity, but can be sold or
rented, with the approval of the municipal or regional assembly.
Table 7 provides information about the value of the assets of municipalities
and regions in Slovakia (in thousand €). The most common asset is buildings,
especially school buildings.
As indicated above, local authorities are fully autonomous bodies that man-
age their own responsibilities. Citizen initiatives and internal control and audit-
571
milan buček - juraj nemec
ing systems are the tools that ensure proper functioning of self-government. As
a general rule, only the courts have the power to alter decisions made by self-
governments. The state prosecutor can only challenge decisions of municipal
assemblies in courts and request they be revised.
According to the Law, citizens have the right to participate in local or re-
gional referendums, lodge complaints, present proposals or other issues to the
municipal and regional bodies, and participate in municipal meetings. Local
and regional referendums and municipal meetings are also instruments of self-
government. Municipalities and regions regulate specific aspects of public par-
ticipation by issuing decrees.
The legal scheme on local government does not limit the range of affairs that
can be decided upon by local or regional referendums. The Constitution states
that a referendum cannot be called to decide on basic human rights, the na-
tional budget or taxes. Local or regional elected Councils can call a referendum
at will or be obliged to do so under the following conditions: (a) It will be called
automatically, if the purpose is to decide about the name of the municipality or
to split or merge municipalities; (b) It may also be called in accordance with a
signed petition of at least 30% of the inhabitants if its purpose is to dismiss the
municipal or regional elected president or to decide on other issues named in
the petition. Local or regional referendums are valid if a minimum of 50% of
the eligible voters participate and more than half of them vote in favour of it.
Local democracy and control are also exercised through complaints. A com-
plaint against a regional or local council and its office begins with an evaluation
of the issue and a decision by the «Petitions Committee». The formal rules for
establishing the committee are described in the authority’s internal directives.
All such decisions are reviewed by the municipal auditor, on a local level, and
by the Office of the Regional Auditor, on regional level. The number of com-
plaints varies. For example, the Office of the Regional Auditor in Banska
Bystrica region reviews about 200 complaints yearly. Reports on these reviews
are included in the annual auditor’s report.
Slovakia, as a small country, and has only one Ombudsman, who is respon-
sible for citizen grievances lodged against all levels of government (state, re-
gional and local), unless otherwise specified by law. This public defender of
rights may act on his own initiative or in response to a complaint by a person or
legal entity. A complaint can be filed in writing, made verbally and incorpo-
rated into the minutes of a meeting, or by telegram, fax or e-mail.
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local government in slovakia
As indicated above, local and regional governments are provided with a very
comprehensive level of autonomy. The Constitution guarantees that duties and
restrictions to self-governments can only be imposed by parliamentary legisla-
tion. Moreover, prosecutors and the Ombudsman can only request that local deci-
sions and measures be revised, but they cannot issue orders revoking such deci-
sions and measures. There are very few standards established for central services
(for example educational curricula), so for most local public services, local au-
thorities can freely decide on how and in what form the service is to be provided.
Such a wide span of self-government capacities can be advantageous, but at
the same time, it can cause drawbacks, particularly in the inefficient use of
public funds. Indeed, economic problems have emerged, and starting in 2006,
the National Audit Office (NKU) was given the right to audit local authorities,
including areas in which these bodies have exclusive responsibility. All local
authorities must cooperate with NKU to provide support for its activities, de-
liver the necessary information or materials on time, provide explanations, and
conduct «ordered» audits and control of all bodies within their sphere of re-
sponsibility. NKU has the right to direct access to any information system used
by self-government bodies.
As one of the new member states, Slovakia has complete access to EU structural
funds. Table 6 summarizes the uses of resources for the previous planning period.
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milan buček - juraj nemec
Table 6
Use of allocated resources from EU funds
Allocation 2004-2006
in € Funds not used as Funds not used
(including automatic of as of
Program document reductions 2004 and 30.06.2008 in € 30.06.2008 as %
2005)
EU resources
The seven Slovak regions (except Bratislava) are eligible to use all the gen-
eral funding instruments, while the capital Bratislava (a self-governing region
in itself), with a much higher income level (above average), is limited to spe-
cific instruments. Municipalities and regions are recipients of large sums of EU
funds to support all kinds of investments such as building and reconstruction of
roads, reconstruction and improvement of schools, construction of sewage sys-
tems and waste disposal facilities, environmental enhancement and support for
services involving sports, culture, and minorities.
Another important source of international aid is the Norwegian fund.
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local government in slovakia
The Slovak legal system is based on the «German» written law tradition,
meaning that previous court decisions, on any level, are not a sufficient source
of law. Moreover, no such important decisions influencing local government
rights and duties are noticeable.
Bibliography in English
Bouckaert, G.; Nemec, J.; Nakrosis, V.; Hajnal, G. & Tonnisson, K.: Public
Management Reforms in CEE. Bratislava, NISPAcee. 2008.
Klimovský, D.: Reform of the Public Administration System at the Local and
Regional Levels in the Slovak Republic. Centre for Small State Studies Uni-
versity of Iceland, February 2008.
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milan buček - juraj nemec
Nemec, J.; Bercik, P. & Kuklis, P.: Local governments in Slovakia. In the col-
lective book: Horvath. T. M. ed.: Decentralisation: Experiments and Re-
forms. Budapest: OSI/LGI 2000.
Nemec, J.: «Decentralisation Reforms and their Relations to Local Democracy
and Efficiency: CEE Lessons». In: Setnikar Cankar S. and Ševič. Ž. eds.
Decentralisation and regionalisation: the Slovenian experience and an in-
ternational perspective, Greenwich University Press, 2008.
Nemec, J.: «Local government finance in Slovakia». In: Ševič Ž. ed.: Local pub-
lic finance in the EEC. Cheltenham UK : Edward Elgar. 2008, p. 391-413.
6
Almost all municipalities and all self-governing regions have their own web pages, and
some of them are in English. The quality of these pages has improved significantly in the last few
years.
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Chapter 24:
LOCAL GOVERNMENT IN SLOVENIA
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regulations. This soon meant that municipalities became too small for the ex-
ecution of all their duties, which is why they grew more and more big and fi-
nally they came near to the size of the former districts. At the same time, the
overloading of municipalities with State duties caused neglect of their local
responsibilities, since - as the first tier of State authority- they were focusing
mainly on those of the State. In performing State duties, however, municipali-
ties enjoyed considerable independence from State authority and acted princi-
pally in accordance with local interests; in so doing, they quite successfully
avoided its control.
The end results were that municipalities were too large to perform the usual
local tasks, but at the same time too small to carry out the functions of a real
second tier of local government. For this reason, smaller territorial units—local
communities—were established within municipalities. These communities
dealt with local needs, but their position was too weak to be compared with
modern European municipalities.
The Slovenian Constitution, adopted in 1991, introduced a new system of
local government which, according to the original concept, should follow the
pattern of contemporary European municipalities. In many ways, however,
the system differed from this original idea, later causing numerous problems
in adopting local legislation and in establishing the system of local self-gov-
ernment.
According to the Constitution, local government is to be exercised through
municipalities and other local communities. Until that time, only municipalities
had been established, since (according to the Constitution) wider self-govern-
ing local communities (including provinces) were not obligatory and should not
be created by the State, but should be the consensual creation of the munici-
palities themselves. In 2006, the Constitution was amended, making «provinc-
es» obligatory. Therefore, this constitutional amendment in the area of local
government has enabled Slovenia to create a two-tiered system of local au-
thorities. Nevertheless, «provinces» have still not been established, since po-
litical agreement as to the number of the future provinces and their territories
has not yet been reached.
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local government in slovenia
Art. 141 of the Constitution, may be allocated specific duties and functions
related to urban development. There are 11 such urban municipalities in the
country.
According to the Local Government Act (see below, point 3), the mu-
nicipality, with at least 5,000 inhabitants, is the basic self-governing local
body; an «urban municipality» must have at least 20,000 inhabitants. A mu-
nicipality may be comprised of a single community or of a number of com-
munities whose inhabitants are linked by common needs and interests. It
may be established by statute, following a favourable vote in a popular ref-
erendum held in the area affected. Thus, the National Assembly (the Slove-
nian Parliament) decides on the boundaries of a municipality on the basis of
a non-binding referendum of the inhabitants, but usually acting in accord-
ance with its outcome.
The same process is followed both for the establishment of a new munici-
pality and for various changes of the municipal territory. The latter may occur
if two or more municipalities merge into a single new one, or if a municipality
splits into two or more, or if one part of a municipality separates from the rest
and establishes itself as a new municipality or joins with one already existing.
In all these cases, the will of the residents of the affected territories must be
determined by referendum. A municipality may therefore not be established
without a referendum: its celebration is obligatory.
On the other hand, the Slovenian system does not distinguish between «ru-
ral» and «urban» municipalities; it does, however, allow for the possibility of a
town acquiring a special status as an «urban municipality» (mestna občina).
Specifically, Art. 141 of the Constitution states that a town may attain the status
of «urban municipality» in keeping with the procedures and under the condi-
tions set by law. As part of its original competences, an «urban municipality»
also carries out particular duties related to urban development, as established
by law.
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local government in slovenia
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local government in slovenia
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local government in slovenia
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by investing public money into the activities of private organizations that pro-
vide certain public services.
The tasks of a municipality can be divided into the regulation of social rela-
tions in the municipality (hence its normative competence) and the implemen-
tation of regulations, whether its own or those of the State. In substance, the
tasks of a municipality are, above all, to manage municipal property, ensure
peace and order and ensure the performance of communal, social and environ-
mental tasks. The Local Government Act defines municipal tasks only in a ge-
neric way, thus allowing for their definition by other laws from particular fields,
as well.
Within the framework of its tasks, a municipality may possess, acquire and
use freely all kinds of property; it may establish and manage public companies
and, within public finance, determine its own budget.
The State may delegate to municipalities the exercise of individual tasks
within its jurisdiction. It must provide the local bodies with sufficient financial
resources for the exercise of these vested or delegated tasks.
Under the former socialist system, the structure of local government was
very specific, since municipalities were very large and their organisation fol-
lowed that of the Republic of Slovenia. Thus, it consisted of a tri-cameral as-
sembly, elected on the basis of the so-called delegate system, and an executive
council. Also, various forms of direct participation were provided for, includ-
ing at the constitutional level, and used in practice for different local decisions;
nevertheless, the nature of the political system did not allow their use on the
basis of political pluralism.
Since 1993, local democracy in Slovenia has been based on political repre-
sentation and direct citizen participation. Political representation is the rule,
while different forms of direct democracy are used under the conditions deter-
mined by the Local Government Act and by the regulations adopted by mu-
nicipal councils. Specifically, the present Constitution does not provide for the
forms of the institutional organisation of local democracy. Direct citizen par-
ticipation does not in any case replace the powers of an elected council: citizens
may only confirm or reject the decisions previously adopted by a council.
The main bodies of the municipality are the municipal council, the mayor
and the supervisory board. The municipal council is the highest decision-mak-
ing body. The mayor, a directly-elected official, represents and acts on behalf
of the municipality and presides over the municipal or town council. The super-
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local government in slovenia
visory committee supervises the disposal of municipal property and public ex-
penditures.
The municipal council is the representative body of a municipality. In ac-
cordance with modern democratic practices, it is elected directly by the resi-
dents of the municipality for a period of four years on the basis of universal and
equal suffrage by direct and secret ballot. The Italian and Hungarian national
communities (minorities) are directly represented in representative bodies of
local self-government, as are the members of the Romany community.
In local elections, the systems of both plurality voting (relative majority)
and proportional representation are used. The former method is used in smaller
municipalities having no more than 12 members on the municipal council,
while the latter is used in larger municipalities. In the case of plurality voting,
the municipality is usually divided into single-member electoral units. Mem-
bers of the municipal council who represent the Hungarian or Italian minorities
and those who represent the Gypsy ethnic community are, in any case, elected
by plurality voting. When proportional representation is used, the voters elect
representatives from the lists of candidates, having also the right of preference
voting. The allocation of seats is based on the d’Hondt method.
Political parties play an important role in local elections, since they nominate
candidates for members of municipal councils and candidates for mayors. Main-
ly national parties participate in local elections, but in some parts of Slovenia the
role of local parties is quite important. In any case, candidates may also be pro-
posed by citizens’ groups of citizens. Voting has traditionally been optional be-
cause it has been understood as a citizen right and not as a duty. The turnout at
local elections is lower than at general elections, and its rate has been falling.
As of 2002, foreigners are entitled to vote in local elections, while as of
2004, according to the rules of the E.U., citizens of its member states are enti-
tled to vote for the members of a municipal council and to be elected to the
same. Voters who are absent on election day may vote before this date at spe-
cial polling stations. Voters who are under temporary care in senior citizens’
homes and those undergoing treatment in hospitals may vote by post.
As the fundamental political rights of a citizen, the right to vote and the right
to be elected are protected by legal means. The transparency of local elections
is controlled primarily by the municipal electoral commission and secondarily
by the Administrative Court. Every candidate or his representative and every
voter has the right to object the irregularities of the work of electoral committee
conducting the voting to the municipal electoral commission and to appeal
against its decision to the Municipal Council and ultimately to the Administra-
tive Court. In both procedures there is also the final recourse of filing a com-
plaint before the Constitutional Court.
As previously stated, the municipal council is the highest body of decision-
making on all matters within the rights and duties of the municipality. In addi-
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tion, it decides on other matters provided by law and statute. The most impor-
tant powers of the municipal council are stipulated in the Local Government
Act. Along with the tasks arising from this Law, the statute of the municipality
may, on the principle of municipal autonomy, also define other tasks, all in ac-
cordance with the Constitution and the Law.
Within the framework of the rights and duties of the municipality, the mu-
nicipal council has, above all, regulatory, electoral and supervisory competenc-
es, as well as decision-making authority on concrete matters. Within the scope
of its regulatory powers, the municipal council approves the general rules of the
municipality, such as the municipal statute, decrees and other municipal acts,
spatial and other plans of development and the budget and its final accounting.
Municipalities as autonomous bodies have the right to regulate with their own
legal acts their internal organisation and social relations, in accordance with the
Constitution and the Law. The self-regulating position of a municipality in the
constitutional system is also manifested through the fact that the rules of mu-
nicipalities are not subordinated to regulations by State bodies, but only to the
Constitution and laws.
In addition to the municipal council, which adopts fundamental decisions in
the municipality, another municipal body is the mayor, who, like the municipal
council is elected directly. The mayor’s main duties are to direct the municipal
administration and to represent the municipality. Furthermore, the mayor is the
guardian of the legal functioning of the municipal government. In addition to
the mayor, a municipality may have one or more deputy mayors, depending
upon the size of the municipality and its needs. The deputy mayor assists the
mayor at his work and substitutes him, as required.
In Slovenia, the mayor is elected directly by the residents of the municipal-
ity for a four-year term of office. The candidate who receives the majority of
votes cast is elected mayor. But as it seldom happens that a candidate receives
the required majority in the first round of voting, the second round may be held
between the two candidates who have received the greatest number of votes.
At the national level, the main problem is that the electoral legislation al-
lows the compatibility of the office of mayor with that of a member of Parlia-
ment (the National Assembly). The result is that approximately one-third of the
members of Parliament are simultaneously mayors. This fact has a very great
impact on their work in Parliament and on their relations with the voters, in
particular with their respective municipal constituencies, in that they often rep-
resent local rather than national interests.
The forms of citizen participation are prescribed by law, but the municipal
councils are free to establish certain other forms of popular consultation. In ad-
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local government in slovenia
dition, the Local Government Act regulating the municipal council’s method of
functioning provides for the municipal council to establish a number of com-
missions and committees, the members of which the council may appoint from
among either its own members and/or other citizens. The main task of such a
body is to advise the municipal council.
The legal regulation of direct democracy makes to a great extent possible
citizens’ participation in municipal decision-making. The forms of direct citi-
zen participation are the citizens’ assembly, the referendum, people’s initia-
tives and popular consultations. It must be stated, however, that in practice di-
rect democracy does not often take place, due especially to the lack of influence
of citizens’ organisations on the functioning of local authorities and to the real
predominance of political parties in local politics. The popular assembly as a
form of popular consultation is a carry-over from the former socialist system
and has been preserved in the present system of local government. It can be
held in all municipalities. A popular assembly may be called for the entire mu-
nicipality or for a part of its territory. Individual matters may be presented be-
fore the citizens, who then may form standpoints, give proposals, initiatives
and opinions, and make decisions at municipal meetings in accordance with the
law or with the municipal statute.
The popular initiative is the form of citizen participation by which the peo-
ple request the municipal council or other municipal bodies to adopt a decision
or regulation within the latter’s power, or by which they demand the nullifica-
tion of some decision or regulation previously adopted by the municipal coun-
cil. A popular initiative in a municipality must be held by no less than five
percent of the voters in the municipality. The body to which is the initiative is
presented (the municipal council or other municipal bodies) is obliged to make
a decision on the request within the period determined by the statute of the mu-
nicipality, but in any case within a maximum of three months.
According to the Local Government Act, a referendum is facultative, i.e., it
must not be used for any particular local decision. In any case, the referendum
may be called only upon a decision previously adopted by the local council,
thus confirming or rejecting this decision. Matters excluded from referendums
are those related to the budget, municipal taxation and other fiscal contribu-
tions. The referendum may be called by the municipal council at its discretion,
or at the proposal of the mayor or a member of the municipal council, but the
municipal council must call it on the demand of no less than five percent of
voters in the municipality. The referendum must also be called if so determined
by law or by the autonomous municipal regulations. A referendum decision is
adopted by the majority of voters taking part in the referendum.
The municipal council is bound by a decision adopted through referendum
until the end of its term of office. The manner of conducting the election cam-
paign is not regulated by law, and the election campaign must not be financed
by local authorities. Otherwise, municipalities are entirely autonomous in con-
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local government in slovenia
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The revenues which the municipality may use for the financing local matters
of public interest proceed from taxes on:
– property
– inheritances and donations
– gambling profits
– sale of immovable property
– other taxes, as provided by law.
The municipality may levy these taxes under the conditions determined by law.
The Local Government Act also determines the State’s obligations to mu-
nicipalities. According to the Law, municipalities are guaranteed financial
equalisation by the State in the amount determined by a special statute. In addi-
tion, the State must provide each municipality with additional funds for certain
municipal duties and functions, specifically for the:
– performance of urgent municipal duties and functions
– performance of State-delegated duties and functions
– co-financing of local matters of public interest when of special importance
to municipal development
– adjustment with investment input, in accordance with the programme in
municipalities with the lowest standard of municipal services.
The quantity of the above funding allocated to an individual municipality
must be determined primarily by the number of inhabitants and population den-
sity of the municipality, its geographic characteristics and the status of the mu-
nicipality with respect to the special interests of the State in its development. In
practice, the most important revenue sources of local budgets (approximately
42% of total local revenue) are the shared personal income tax and the tax on
fixed property (approximately 9% of the total). The Law on the Financing of
Municipalities determines the detailed regulation of methods and criteria for
the financing of municipalities.
On the whole, municipal budgets are funded mainly by State budget trans-
fers (in 2006, 79.3%), compared with their own tax revenues (6.8%) and other
revenues, including other obligatory contributions, such as fees and duties
(13.9%). Local expenditure represents only approximately 11% of total public
expenditure in Slovenia. Local budgets therefore depend heavily on State trans-
fers and financial equalisation.
The assets which can be owned by local authorities in Slovenia can be clas-
sified into several types: on the one hand, movable and realty assets; on the
other hand, tangible and non tangible.
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local government in slovenia
In Slovenia, local authorities are entitled to own assets but they have the same
form of property as the State. Nevertheless, there are no different forms of prop-
erty. The property of all subjects (public or private) belongs to the same form of
property and has the same legal status. Consequently, there are no special rules
concerning the municipal property. Thus, there is not any legal difference be-
tween the legal status of the State property and that of the municipal property.
In general, all forms of goods and assets are regulated by the Law on Prop-
erty. Thus, the property of public-law bodies (such as the State or a municipal-
ity) has in principle the same legal status as the property of private persons. The
difference lies only in the purpose of the property, i.e., the property of public
legal persons is used solely and exclusively for public benefit. Moreover, there
is a special regulation for the acquisition, management and disposition of State
or municipal property. There are different limitations determined by several
statutes adopted by Parliament, which regulate different aspects of the use of
property owned by the State or by municipalities.
Local authorities may acquire property in the same way as other public and
private persons. Expropriation may be employed for the benefit of the local
authority if it is necessary for public benefit. In addition, local authorities have
the right of pre-emption when a cultural monument or building is about to be
conveyed.
As explained before, municipal assets have the same legal status as those of
other legal organisations. Thus, in principle, they can be the object of all kinds
of legal transactions. However, a municipality may alienate its property under
legally-determined conditions in accordance with the purpose of the assets in
question. Municipal assets can be expropriated by the central Government if
this is done for public benefit. Any expropriation must be followed by an equi-
table compensation, as guaranteed by the Constitution.
The sale of individual parts of municipal assets is permitted against payment
of their full value, which becomes a part of the municipal assets unless it is
donated for humanitarian, educational, scientific or research purposes or for
other purposes of this kind. The decision to convey parts of the assets can be
adopted only by the municipal council. The mayor, however, may be author-
ised to decide on the acquisition or disposal of movable property and on the
acquisition of immovable property by municipal statute or by a decree of the
municipal council.
Finally, it should be pointed that municipalities are obliged by law to state
the value of its assets on the corresponding balance sheet.
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local government in slovenia
– in the year for which the budget has not yet been adopted, the municipal
council fails to adopt the said budget for its retroactive entrance into force;
and/or
– despite having been convened three times in six months, the municipal
council fails to hold a session.
A mayor may be dismissed if he does not implement the legal decisions is-
sued by the municipal council or any other legal tasks, or if he adopts decisions
which violate laws and, despite being warned by ministries, fails to rectify the
illegal action.
In the event of the dissolution of a municipal council, the National Assem-
bly may, at the proposal of the Government, also remove the mayor if it deter-
mines that the reasons mentioned above are applicable. In such a case, the Na-
tional Assembly must appoint a temporary manager. It must also call early
elections for the municipal council and, in the event of the simultaneous re-
moval of the mayor, elections to fill that position, as well.
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597
Chapter 25:
LOCAL GOVERNMENT IN SPAIN
Angel-Manuel MORENO
1
For an account of the historical evolution of towns and cities in Spain, see: Orduña Re-
bollo, E.: Historia del municipalismo español. Iustel, 2005.
2
For an explanation of the legal and institutional evolution of municipalities during the XIXth
century, see: INAP: El municipio constitucional, 2003.
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angel-manuel moreno
ternative can be identified within this legislative evolution, as two vigorous and
conflicting trends opposed: on the one hand, the conservative model (the domi-
nant one from a temporal point of view), inspired by a centralist approach to
local government, which favoured a system of control of cities and provinces
from the State bureaucracy and departments; and on the other hand, the «pro-
gressive» (progresista) approach, that was supportive of a greater autonomy for
the local bodies.
As an example of this «pendular» historical evolution, it is important to
point that, during the XIXth century, local elections were alternatively intro-
duced and eliminated, according to the dominant political trend of the moment.
When they were called, the right to vote was restricted to the wealthy or quali-
fied people (sufragio censitario), and the first «general» and «open» local elec-
tions did not take place until 1869. Even on that occasion, only men had the
right to cast ballots. The vote for women in local elections was only recognised
(in a partial way) in 1924,3 and in a general way in the 1931 Constitution.4 Thus,
during the period 1812-1975, different general rules on local government were
promulgated in 1812/1823, 1840, 1845 (inspired by a centralist model), 1870
(following a progressive model) 1877 (centralist model), 1924 («estatuto mu-
nicipal de Calvo Sotelo» following a progressive model, but largely unimple-
mented), and 1935 (progressive and democratic model).
The regime of General Franco (1936-1975), reinstated a centralist model of
local government. Three main pieces of legislation on local administration were
approved in 1945/1950, 1953/1955 and 1975, which lasted in force until the re-
introduction of Democracy. A system of direct control over local government
was performed by the national government, both at the central level (Ministries,
Ministerios) and at the territorial one, by means of the «civil governor» (Gober-
nador civil, a political delegate of the central Executive in the province). Mayors
(in municipalities) and Presidents of the councils (in the provinces), were directly
appointed by the civil governor in each Province. Free and direct elections were
suppressed at all levels (local, regional and national). At the local level, though,
some forms of quasi-electoral procedures were maintained by the abovemen-
tioned legislation. In fact, local elections took place at different times, but the
right to vote was restricted to male «heads of family», who could only designate
a portion of local council members (the so-called «family» representatives).
After the death of General Franco, a broad and comprehensive political
process, conducted personally by the King, known as the «political transition»
(la transición política), took place in 1975-1978 and eventually allowed the
3
The Act of 8 March, 1924 (estatuto de Calvo Sotelo) recognised the right to vote for all
women from the age of 23, as long as they were emancipated from parental or marital control and
they had «a house open in the town», that is, that they had a household of their own. The provi-
sions of this act on local democracy were, though, never put into practice.
4
At local level, the provisions on universal suffrage were put into practice for the first time
in the local elections of 1933.
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local government in spain
5
At the local level, universal and open elections took place after the promulgation of the
Constitution, in 1979.
6
In 2010, the competent department of the national Executive announced the preparation of
a draft statute on local government (Ley de Gobierno Local). It remains to be seen whether the
expected planning and the present political situation allows this document to go through the leg-
islative decision-making procedure.
7
Political decentralisation led to the establishment of seventeen «Comunidades Autóno-
mas», or regions. They enjoy a large degree of administrative and political autonomy. In this
contribution we use the word «region» instead of «comunidades autónomas» because this is an
English word that is easily recognisable. Comunidades Autónomas are not analysed in this con-
tribution, which focuses on local government stricto sensu.
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angel-manuel moreno
From the point of view of their historical, political and social importance, in
Spain there are three main types of local authorities (Entidades Locales, in
Spanish): Municipalities (municipios), Provinces (provincias) and Islands
(islas).8 Municipalities make up the «first tier» of local government. In a col-
loquial way, municipalities are seldmon characterised as towns (pueblos) or
cities (ciudades) according to their size and population, but this difference
(apart from being imprecise) has no legal implications whatsoever (taking apart
the case of the formal «big cities», see below, point 5.2.3). Provinces and Is-
lands form the «second tier» of local government.
The State, Basic Act on Local government (hereinafter, «the 7/85 Act»)9
identifies these bodies as «territorial local entities» (entidales locales territori-
ales). They enjoy something called «institutional guarantee» (garantía
institucional),10 which means, grosso modo, that they are recognised and pro-
tected by the Constitution as a integral part of the territorial structure of the
Country. This constitutional characterisation of those local government units
implies two important consequences: (a) their existence is guaranteed by the
Constitution, which means that neither the national Parliament nor the regional
ones can pass legislation providing for their suppression;11 and (b) the core le-
gal regime of these bodies may be regulated by the State, not by the regions
(Comunidades Autónomas).12 The regions may «develop» or approve rules and
regulations on specific aspects of local entities, as long as they respect the
«ground» or «basic» rules laid down by the State (see point 3.2.1). This situa-
tion means that the core system of local government –at least in the domain of
these «essential» local entities- is more or less uniform in the whole kingdom
(especially in the case of municipalities), but the regions may introduce varia-
8
The country has two archipelagos, the Canary Islands and the Balearic Islands. Each major
island is considered to be a distinct local authority.
9
Ley 7/1985, de 2 de abril, reguladora de las bases de régimen local.
10
This concept has been taken from German public law. The Spanish Constitutional Court
adopted this concept in one of its earliest rulings involving local autonomy: ruling 32/1981, of 28
July 1981.
11
We talk here about the suppression of the «abstract category» of Municipalities, Provinces
or Islands, not about the elimination or suppression of one town or city, which is perfectly possible.
12
This rule is only partially true in the case of the Islands, whose governing bodies are
mainly regulated by regional law (for instance, Act of the Parliament of the Balearic Islands No.
8/2000, of 27 October). In fact, the 7/85 Act only contains a couple of substantive provisions on
these local authorities.
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local government in spain
tions and special provisions. Therefore, the Spanish regulation on this type of
local administration is not monolithic: it is heterogeneous, but respects a com-
mon, basic regulation.
Apart from Municipalities, Provinces and Islands, there are other local gov-
ernment bodies, which will not be analysed in depth in this contribution. As op-
posed to the «essential» local bodies, these units share some different features:
– They are not explicitly mentioned by the Constitution;
– Their name and legal status may be entirely regulated by the Regions, as
State legislation only provides for broad general principles in the matter;
– They do not enjoy the «institutional guarantee» that protects Municipali-
ties, Provinces and Islands: the regional legislature may decide at any mo-
ment to create or to terminate those types of bodies;
– They keep up relations mainly with the regional Administration, not with
the State departments and agencies;
– Their territory may be bigger or smaller than the territory of a municipal-
ity. They may have an infra-municipal scope, like the «parishes» (parro-
quias), to be found in some parts of Spain, or they may embrace a supra-
municipal territory in a way similar to an anglosaxon «county». In this
latter category, different types of entities may be mentioned, like the «dis-
tricts» (distritos) or the «comarcas».
– They can be established by the regional legislative (example: comarcas or
counties) or by the initiative of other local entities: for instance, the asso-
ciations of Municipalities (Mancomunidades, see below, point 4.1.2).
Therefore, the legal regime on these types of local government units is high-
ly heterogeneous, as there may exist up to seventeen different legal schemes on
the matter, one for each region.13
The following table provides aggregated figures for the most important
types of local government in the country14:
13
This regulatory variety prevents us from providing substantial attention to these bodies in
this contribution, for evident reasons of lack of space.
14
These data have been taken from the National Register of Local Government Units, which
is run by the Ministry of Territorial Policy and Public Administration (2010 edition).
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Less More
100- 1,001- 2,001- 5,001- 10,001- 20,001- 50,001-
Inhabitants than than
1,000 2,000 5,000 10,000 20,000 50,000 100,000
100 100,000
Number of
municipalities 1,074 3,789 928 1,019 554 356 249 83 62
This simple information shows one of the most important and recurrent
problems of local government in Spain: the number of municipalities is very
high. There is a huge proportion of little towns, with a small number of inhabit-
ants. This situation, which has a purely historical justification (based on the
inception of the French model of legal regulation of human settlements) trig-
gers different problems: many municipalities are incapable of providing the
essential public services that are obligatory under the law (see, below, point 4)
since they lack the necessary resources to do so (not only economic, but also
technical and personnel resources).
On the other hand, Municipalities are not distributed in an even or balanced
way across the nation. Some Regions have a high number of municipalities
(usually, small and underpopulated towns), while other Regions have a smaller
figure due to its extension or to other patterns of human settlement. The follow-
ing table, with selected data concerning seven representative Regions, will help
understanding the situation:
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local government in spain
tonomía local). Broadly described, this concept means that the local administra-
tion units (as identified supra) have the right to take decisions for the running of
local interests and services and for the well-being of their citizens, without politi-
cal interference from Regions or from the State agencies and departments.15 «Lo-
cal autonomy» involves the idea that local authorities are fully empowered to
frame policies, programs and measures to solve the local problems and to carry
out long-term planning of different aspects of community life (land use and zon-
ing, culture, transportation, environmental protection, transit, etc.). Beyond this
vague idea, however, the concept of «local autonomy» is difficult to encapsulate
in a precise and detailed legal way. To do so, different legal elements must be
taken into consideration: (a) the Spanish Constitution; (b) the European Charter
of local self-government (ECLSG); (c) the case-law of the Spanish Constitu-
tional court; (d) the laws and regulations approved by the national and regional
Parliaments and executives; (e) the case-law of the Supreme Court.
To begin with, constitutional provisions on local government must be con-
sidered. Thus, the Spanish Constitution of 1978 explicitly recognises local self-
government (autonomía local) and devotes several provisions to it: section 137
identifies the basic local government units that are present in the country, and
recognises them as constituent parts of the State.16 Separate provisions lay
down the constitutional foundations for the municipalities (section 140)17 and
for the provinces (section 141).18 Finally, local finances are dealt with by sec-
tion 142.19
15
For a comprehensive analysis of the concept of «local autonomy», see: Fanlo Loras, A.:
Fundamentos constitucionales de la autonomía local, Madrid, 1991; Font i Llovet, T: Gobierno
local y Estado autonómico, Barcelona, 2008; García de Enterría, E.: Problemas actuales del
régimen local, Madrid, 2007; Parejo Alfonso, L.: Garantía institucional y autonomías locales,
Madrid, 1981.
16
Section 137: «The State is territorially organized into municipalities, provinces and the
Self-governing Communities that may be constituted. All these bodies shall enjoy self-govern-
ment for the management of their respective interests»
17
Section 140: «The Constitution guarantees the autonomy of municipalities. These shall
enjoy full legal personality. Their government and administration shall be vested in their Town
Councils, consisting of Mayors and councillors. Councillors shall be elected by residents of the
municipality by universal, equal, free, direct and secret suffrage, in the manner provided for by
the law. The Mayors shall be elected by the councillors or by the residents. The law shall lay
down the terms under which an open council of all residents may proceed».
18
Section 141: «1.- The province is a local entity, with its own legal personality, arising
from the grouping of municipalities, and a territorial division designed to carry out the activities
of the State. Any alteration of provincial boundaries must be approved by the Cortes Generales
in an organic act. 2.- The government and autonomous administration of the provinces shall be
entrusted to Provincial Councils (Diputaciones) or other Corporations that must be representa-
tive in character. 3.- Other groups of municipalities other than provinces may be formed. 4.- In
the archipelagos, each island shall also have its own administration in the form of Cabildo or
Insular Council.»
19
Section 142: «Local treasuries must have sufficient funds available in order to perform the
tasks assigned by law to the respective Corporations, and shall mainly be financed by their own
taxation as well as by their share of State taxes and those of Self-governing Communities».
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Secondly, Spain has signed and ratified the European Charter on Local Self
government (ECLSG).20 In the field of international treaties, Spain is a country
with a moderate monist model and tradition. Therefore, the Charter, after the
deposit of the instrument of ratification and the full publication of its text in
the national Official Journal (Boletín Oficial del Estado, commonly known as
«BOE»)21 became «the law of the land» and enjoys the legal protection and
specific normative strength of any other international treaty, under section 93
of the Constitution. At the time of ratification of the ECLSG, Spain made only
one declaration stating that it does not consider itself bound by art. 3 par. 2 of
the Charter, which declares that the system of direct election should be imple-
mented in all local authorities falling within the scope of the Charter. This
declaration reflected the view of Spain not to extend the direct election princi-
ple to the councils of the Provinces (diputaciones), whose members are not
elected directly by the voters, but in an indirect way (see infra, point 5.3.1).
The Charter is an important rule in the Spanish system of local government.
From a historical point of view, it inspired the national basic legislation on the
matter. On the other hand, it has frequently been used as an interpretative au-
thority by the courts. Nevertheless, the fact that most of its provisions do not
have a self-executing nature prevents the charter to be applied directly in
courtrooms.22
Thirdly, the case-law of the Supreme Court and, especially, that of the Con-
stitutional Court is an essential element of Spanish local government law. As
the Constitution merely states general formulae as regards local autonomy (and
does not provide a definition of it) one can perfectly support the proposition
that the Constitutional Court is the ultimate recipient of the idea of local au-
tonomy that is embodied in the Spanish Carta Magna. Since 1981, the Court
has issued key rulings in the field, and has built, stone by stone, the actual con-
stitutional concept of local autonomy (see the rulings listed at point 12.1, infra).
Some of the most important rulings in this area are:
– Ruling («STC») 4/1981, of 2 February 1981: local autonomy is a general
principle of the territorial organisation of the state. This implies, among other
elements, the right of the local government units to participate y the govern-
ance and decision-making on matters that affect the local citizens. The organs
of the said units must have powers and competences. On the contrary, the
legislator (either national or regional) can not minimise or reduce this au-
tonomous domain of decision making below a recognisable level.
– Ruling 35/1982, of 14 June 1982: local government autonomy is construed
as the capacity of local bodies to formulate their own public policies.
20
Instrument of ratification of 20 January 1988.
21
The ECLSG was published in the «BOE» on 24 February 1989.
22
Scholars, of course, have paid due attention to the Charter and to its significance in the
whole Spanish legal scheme on local government. See, among others: Lasagabaster Herrarte, I.:
La Carta Europea de la Autonomía Local, Madrid, 2007.
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local government in spain
Before identifying the most important laws and regulations in the field of lo-
cal government, it is essential to clarify a preliminary question: in Spain, legisla-
tive powers in the domain of «local government» (administración local) are
shared between the State (el Estado) and the regions (Comunidades Autónomas).
This issue is depicted in Spain by saying that local government is a «dual-front»
matter (régimen bifronte). The main reason for this situation of shared regula-
tory responsibilities is the fact that the system stemming from the 1978 Constitu-
tion frames Spain as a country whose territorial structure stands between a «fed-
eral» and a «unitary/centralist» model. The regulatory powers of the regions are
very wide, and the national legislature can only set the basic rules governing
Municipalities and Provinces. Islands and other types of local authorities (as
presented at point 2, supra) can be regulated extensively by the regional parlia-
ments. Regions, thus, enjoy a wide domain of political discretion to regulate lo-
cal government, but they must respect the «baseline» of the basic legislation of
the State. The details of the dividing line for this allocation of regulatory powers
between the State and the Regions is far to be clear, and has often been the sub-
ject of political discussion, as well as of constitutional adjudication.23
National legislation may be divided into statutes24 and administrative regu-
lations. Among the statutes are worth mentioning the key Act 7/1985, of April
2nd, 1985, on the basic provisions on local government25; «Organic» Act
5/1985, of June 19th, concerning the general electoral system (it governs also
local elections); Royal legislative-decree 2/2004, of March 5th, 2004, concern-
ing local finances, and Royal legislative-decree 781/1986, of April 18th, 1986
(consolidated set of legal provisions on local government). The most important
23
The last episode of the Constitutional case-law on this issue is represented by its ruling
31/2010, of 28 June 2010, on the constitutionality of the Statute of Autonomy of Catalonia, as
amended.
24
In Spain, the Executive may pass, under certain conditions, legal rules having the same
binding force as an Act of Parliament.
25
This legal rule is the most important one in the domain of local government, its very «legal
backbone». It has been amended several times. The most important recent amended was per-
formed by the Act of 16 December 2003.
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All local authorities have the legal nature of bodies governed by public law
(entes de derecho público). Therefore, their decision-making processes, their
activities and the actions they take are mainly governed by regular Administra-
tive Law. In this capacity, local authorities do carry out a huge array of activi-
ties to satisfy the general needs of their citizens and to advance the well-being
of the local community. From a technical point of view, though, a difference
can be drawn between three different legal concepts:
a) Legal powers enjoyed by the local authorities as governmental bodies (in
Spanish public law: potestades administrativas);
b) Local services provided by those authorities (in Spanish: servicios públi-
cos locales);
c) Competences, in the narrow sense (competencias).
Each one is considered separately below, for the two basic types of local
authorities: municipalities and provinces. The analysis is limited to the legal
scheme stemming from national, basic legislation for reasons of space, but it is
important to note that regional statutes and administrative regulations on local
government may attribute additional powers and services to «their» local bod-
ies. Therefore, the picture on local services and competences is far from being
uniform throughout the kingdom.
26
In Spain, the State Executive (Gobierno de la Nación) has a strong regulatory power to
approve implementing regulations («reglamentos») which precise and detail the general provi-
sions of parliamentary legislation.
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local government in spain
4.1. Municipalities
Municipalities (as well as provinces and islands), enjoy several powers and
prerogatives which are usual for public, governmental bodies:
– They enjoy the power of eminent domain, that is, they can expropriate
private property for different justified purposes, for instance for the sake
of urban policies or for the construction of public infrastructures.
– They have rulemaking capacity. The rules approved by Municipalities
(ordenanzas municipales) regulate important aspects of human social be-
haviour, and can establish administrative sanctions for those individuals
and firms who contravene them.27
– They can impose taxes, levies and special contributions, with due respect
of the requirements laid down by national or regional legislation.
– They can approve comprehensive and detailed plans in many fields, such
as land use, environmental protection and transports.
– They have the power to impose administrative sanctions and fines on the
wrongdoers.
– They have the capacity to determine their internal structure, with due re-
spect to national and regional laws and regulations (see, below, point 5).
The 7/85 Act (Art. 26) establishes a set of minimum, mandatory public serv-
ices, which must be provided by all municipalities, in accordance with their
legal population. Thus:
(a) All municipalities must provide the following services: public light-
ning, cemetery, waste collection, street cleaning, supply of drinking wa-
ter; road access to the municipality; law and order; sewer system; pave-
ment of the streets and control of food and drinks sold in town.
(b) Municipalities having more than 5,000 inhabitants must, in addition,
provide the following public services: public park; public library; mar-
ketplace and waste treatment.
(c) Municipalities with more than 20,000 inhabitants must, on top of the
previous ones, provide the following public services: Civil protection;
social services; prevention and extinction of fires; public sport facilities.
27
On this regulatory power of Municipalities, see: Embid Irujo, A: La potestad reglamen-
taria de las entidades locales. Iustel, 2010.
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28
For a general overview of the different forms and organisational techniques for the deliv-
ery of local services, see: García Rubio, F.: La organización administrativa de las fórmulas de
gestión directa de los servicios públicos locales. La Ley, 2011.
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4.1.3. Competences
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29
In the case of the Basque country, the three historical provinces do enjoy a very large do-
main of powers and competences, much larger than the regular «provinces». They even have
powers in taxation and fiscal matters (each province has it own fiscal system, separate from the
national system), which are even of higher degree and importance than those of the region to
which they belong.
30
For instance, since most small municipalities lack the adequate personnel and operational
capability to collect their own taxes, they usually asks the Provincial government (Diputación
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local government in spain
Provincial) to do so. The province collects the local taxes and keeps an agreed percentage as a
service fee. Another usual cooperation is the domain of land use and zoning activity (building
permits), where the province provides for an Architect and other qualified civil servants, who
check the legality and opportunity of building permits applications, etc.
31
Among other services, it is worth mentioning that they run the Provincial Official Gazette
(Boletín oficial de la provincial), which is an important official journal where all municipal regu-
lations, ordinances and plans must be published. The territorial State offices also publish their
decisions in that journal.
32
Historically, provinces have provided a large number of supramunicipal, provincial
services: provincial museums, libraries, hospitals, bullfight rings, roads, marketplaces, etc.
Also, many important public infrastructures belonged to the Provinces: the provincial hospi-
tal, the provincial museum, the provincial library, the provincial orphanage, etc. Many of
these infrastructures have been absorbed by the regions (for example in the domain of
health).
33
See Sections 140 (on municipal organisation) and 141 (on provincial organisation) of the
Spanish Constitution, reproduced in footnotes at point 3.1, supra.
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34
Apart from the nationals from the other 26 member states of the European Union, the right
to vote belongs also to nationals coming from the following countries: Norway, Ecuador, New
Zealand, Colombia, Chile, Perú, Paraguay, Iceland, Bolivia and Cabo verde.
35
For an overview of the results, see: http://elecciones.mir.es/locales2011/.
36
The number of Municipal Council members depends on the legal population of the city or town:
from 3 (in the case of small towns with less than 100 inhabitants) to 41 in Barcelona, or 67 in Madrid.
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local government in spain
37
In «big cities» (see below, point 5.2.3) the Mayor may appoint as a member of the steering
committee someone who is not an elected member of the council.
38
Ley 57/2003, de 16 de diciembre de medidas para la modernización del gobierno local.
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Small towns. At the other extreme of municipalities stand those very small
towns (having less than 100 inhabitants). They may organise themselves ac-
cording to specific rules (a regime called Concejo Abierto, or «open council»).
The key point is that there is certainly a mayor, but decisions are taken by
means of assemblies (there is not a «city council» as such»), which all citizens
may attend and where they may express their positions.
Ceuta and Melilla. These two cities situated in the northern coast of Africa,
also enjoy a special regime, which stands in between a «true» local government
unit and an Autonomous Community. In fact, this cities, like the rest of the re-
gions, do have their own «estatuto de autonomía» (statute of autonomy) and
their legal name is that of «autonomous city» (Ciudad Autónoma).
Madrid and Barcelona. Since 1606, Madrid has permanently been the cap-
ital of Spain. Currently, the Spanish Constitution of 1978 simply recognises
this situation (article 5). However, the Constitution does not establish a specif-
ic, special or privileged regime for the city, since this matter must be handled
by a regular statute. The peculiar features of Madrid, not only as the capital of
the country but also the most populated and prominent city in the country, have
justified for years a special legal regime, which was highly demanded, but nev-
er concretised. In 2006 and after several political attempts, a specific regime
was eventually approved by means of a bespoke statute of the national Parlia-
ment: the Act 22/2006, of July the 4th 2006. This piece of legislation lays down
specific provisions for Madrid in the domain of institutional framework, ad-
ministrative structure, powers, competences of the mayor, etc, which can only
be briefly mentioned here.39 Barcelona, the second largest city in the kingdom
has also specific institutional and organisational features, laid down in Act
22/1998, of 29 December 1998, on the municipal charter of Barcelona, and Act
31/2010, of 3 August 2010, on the metropolitan area of Barcelona.
39
An analysis of this special legal regime of Madrid city, in: Parejo Alfonso, L. (dir.): Estu-
dios sobre la ley de capitalidad y de régimen especial de Madrid, Tirant lo blanch, 2006.
40
In provinces with less than 500,000 residents, the number of «deputies» is 25. This figure
increases in proportion with the number of residents: in provinces having more than 3,500,001
residents, the number of «deputies» is 51.
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local government in spain
ties, among those persons who have been elected as city council members (con-
cejales) in the local elections, in any of the municipalities of the province.41
Thus, the same person may discharge at the same time two positions: the posi-
tion of mayor or member of the municipal council, and the position of «deputy»
or President of the provincial council. Proportional rules here apply, and usu-
ally the political party who has managed to obtain the highest number of city
council members (concejales) among the different municipalities of the prov-
ince, also get the Chairmanship of the Provincial Council.
The foremost executive organ of the Province is the president of the provin-
cial council, (Presidente de la Diputación Provincial), who is elected by the
Provincial Council and assisted by vice-presidents and by the executive com-
mittee (junta de gobierno). The latter is composed by the President and by a
number of members equal to one third of the legal number of deputies, and are
freely appointed and dismissed by the president. This body assists the President
in exercising his functions. As in the case of municipalities, individual provin-
cial deputies may receive delegations of decisional powers from the President,
to run specific departments or services of the provincial administration (public
works, personnel, etc.).
There are three special regimes for some provinces in Spain, which deserve
just a summary mention here: (a) In the Basque Country, the three constituent
provinces (territorios históricos) enjoy a specific regime, which is regulated by
regional law; (b) those provinces who transformed themselves in regions in the
period 1979-1983 (seven) do not have a «provincial» organisation as such, but
are completely structured as a regular region (comunidad autonóma); (c) In the
Canary Islands, the two constituent «provinces» do not have a truly «provincial
organisation» as such, since there the second tier type of local government is
the Island, with the governing body called «cabildos» (council of the island).
These bodies are also regulated by regional laws and regulations.
41
When Spain ratified the ECLSG, it included a declaration saying that «this charter is ap-
plicable to the local administration bodies which are mentioned at sections 140 and 141 of the
Constitution, with the exception of a section 3, § 2 since the system of direct election should be
implemented in all local authorities included in the scope of the charter. This statement was ap-
plicable to local second-tier bodies such as provinces and islands.
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According to the data published by the Ministry of Territorial Policy and Public
Administration,42 currently there are roughly 658,000 public employees work-
ing at local government level (including all local authorities ), which represents
almost 24,5% of the total number of public employees in the Spanish public
administration. This share is even higher than the number of employees work-
ing at the national administration (only 22%).
From a legal point of view, local government personnel may be of two dif-
ferent kinds: civil servants (funcionarios) and contractual employees (personal
laboral). Civil servants are considered to be «administrative law» personnel,
enjoying a special legal status (in principle, they cannot be fired or made redun-
dant). The recruitment of this type of employees, their rights, services, duties
and responsibilities are regulated by Administrative law. On the contrary, con-
tractual employees are governed by «private» employment law. Their salaries
and working conditions are regulated in a different way: they sign individual
contracts and they do bargain and negotiate collective agreements with the cor-
responding local authority (usually the big ones). In overall quantitative terms,
the number of contractual employees is much higher than that of «civil serv-
ants» in Spanish local authorities. This is especially clear in small towns and
villages, where almost all employees are usually «contractual» personnel. Only
medium and large-scale cities and provinces have their own groups and ranks
of civil servants (cuerpos y escalas de funcionarios). In terms of personnel
management, each local authority is supposed to work like an independent
«company», with its own personnel.
Notwithstanding this general situation, it is important to stress that, in Spain,
there is a special type of local employees, who have traditionally been recruited
and managed by the national government. They are called «civil servants hav-
ing a state qualification» or being «statewide qualified» (funcionarios con ha-
bilitación de carácter estatal). These local civil servants are the only ones en-
joying «professional mobility» across the Spanish territory. That is, during
their career they may obtain positions in different local authorities across the
country, by participating in «ad hoc» staffing procedures. The status of this
special type of civil servants is also regulated by the State (the essential rules
and elements) and by the regions.
The creation of this type of civil servants goes back to the Local Govern-
ment Act of 1924 (see, supra, point 1). For decades, these civil servants were
recruited by the national executive. Regularly, nationwide competitive proce-
dures were called by the competent central Department, which allowed those
civil servants to change and get positions in other local authority, in a structured
way which formed a professional «career» (carrera administrativa). Key regu-
lations on this special group of civil servants were approved by the State: Roy-
al Decree 1174/1987, of 17 September 1987, and Royal Decree 1732/1994, of
42
Boletín estadístico del personal al servicio de las Administraciones públicas, 2010.
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local government in spain
29 July 1994. Currently, and after a 2007 national statute on Civil Service (Act
7/2007), this type of personnel is not recruited by the State administration any-
more, but by the regions, as a consequence of devolution. The new regulatory
scheme has slightly changed the name of this group of civil servants: funcion-
arios con habilitación de carácter estatal, where the word «national» has been
replaced by «state».
The role of these special civil servants is essential in every local authority,43
because they discharge (in an exclusive way) important legal and managerial
functions:
(a) that of Secretary (Secretario) of the local authority bureaucracy: in this
capacity, they provide legal advice to the different local bodies and or-
gans; they keep the records of all decisions of the mayor and the discus-
sions at the Town Hall meetings; they are the natural attorneys-at-law of
the local authority; they are in charge of the overall local administration,
etc. Local government secretaries also play a key role in the organisa-
tion and logistics in all electoral processes and they are delegates of the
electoral administration.
(b) That of accountant and comptroller (tesorero, interventor) of the local
treasury and of the local budget, revenues and expenses. The Account-
ant-comptroller is in charge of checking that the expenses made by the
local authority do comply with substantive and procedural requirements
established by the law.
In small towns, this «statewide qualified» civil servants discharge functions
(a) and (b) simultaneously. In medium and large-size authorities, each function
is discharged by different civil servants, who follow «specialised» professional
tracks and promotion echelons. According to official data, in 2010 there were
5.584 of these «statewide qualified» civil servants working in the whole king-
dom. This number only represents 0,8% of the total number of local govern-
ment employees.
These civil servants are supposed to ensure that local authorities measures
and decisions follow the procedural and substantive standards established by the
Law and, although they are «statewide qualified» they cannot be considered
stricto sensu as State employees, but genuine local government civil servants.
They are not paid neither by the State nor by the region, but by each local author-
ity where they work. An important issue to be considered in this contribution is
whether the very existence of this group of civil servants (traditionally recruited
and staffed by the State) and, especially, the control that they perform over the
activities of the local authorities, is consistent not only with the essential content
43
This type of civil servants is not exclusive of Spain, and may be found in other European
countries which follow the «Napoleonic» model of local administration (for instance, France,
Belgium, Italy, etc.).
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angel-manuel moreno
of «local autonomy», but also with the principles of devolution. These questions
were strongly discussed in the eighties, but currently they are settled: on the one
hand, the Constitutional Court has clarified that the existence of these civil serv-
ants is compatible with the notion of self-government. Therefore, it has upheld
the existence and exclusive functions of these civil servants.44
7.1. Introduction
The domain of financial resources is certainly one of the most critical issues
in local self-government in every country. Without financial resources, local
autonomy is largely more theoretical than actual. In Spain, this field is so im-
portant that the Constitution contains specific provisions stressing the principle
of financial sufficiency, by establishing that: «Local treasuries must have suf-
ficient funds available in order to perform the tasks assigned by law to the re-
spective Corporations, and shall mainly be financed by their own taxation as
well as by their share of State taxes and those of Self-governing Communities»
(Section 142). Besides these specific constitutional provisions, Act 2/2004, of
5 March, on local finances provides a comprehensive regulation of this matter.
As a rule, all decisions concerning the revenues and the distribution of resourc-
es are taken in an autonomous way by the local authority and must be decided in
the municipal budget, which must be approved by the plenary session of the Coun-
cil. Local authorities do approve their own budgets, without the need of a prior
approval by the regional or State agencies. However, for some budgetary opera-
tions local authorities require such approvals, for instance when the local entity
envisages having recourse to borrowing, above a given ceiling. As for expenditure,
it is also decided in an autonomous way.45 The local Comptroller (interventor)
takes care that the expenses comply with procedural and substantive legal require-
ments. The revenues of local authorities may come from different sources (own
taxes and fees, transfers, other sources), and they are summarily presented here.
«Own revenue» (recursos propios) include all the different types of income
generated by the activity of local authorities either of a fiscal or non fiscal na-
ture. Within this group we may distinguish between fiscal income (taxes,
44
The main ruling in this area are: ruling 214/1989 and ruling 25/1983, of 7 April 1983.
45
In 2009, the total expenditure of local authorities represented 13,6% of the total public
spending in the country, while regions were accountable for 35,6%, the State for 20,9% and So-
cial Security for 29,9%.
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local government in spain
46
Ministerio de Economía y Hacienda: Haciendas locales en cifras. Avance 2009.
47
Provinces do not have «taxes», but they may establish a surcharge (recargo) on the mu-
nicipal tax on economic activities, plus they may collect charges and fees, and special contribu-
tions.
48
Ministerio de Economía y Hacienda: Haciendas locales en cifras. Avance 2009.
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angel-manuel moreno
utes or the breach of local regulations and ordinances. The most impor-
tant ones are monetary fines. This source of income is especially relevant
in big cities (transit and parking fines, environmental fines, etc.).
(b)
Sale of property and assets. Within certain limits, municipalities may
sell the goods and assets that do not belong to the public domain (see
infra, point 8), such as old and abandoned facilities, shares of private
companies, etc.
(c)
The results of economic activities. Municipalities and provinces may car-
ry out economic activities, usually by means of public, local companies.
Special attention should be given to the income generated by urban ac-
tivities. During many years, this has been a key source of income for munici-
palities, especially for those located in areas that have experienced the devel-
opment and housing «boom» (touristic cities on the seaside, Madrid and
Barcelona, etc.). Municipal income derived from land development and con-
struction activities came basically from two sources: on the one hand, the
municipality participated in the land development process, by expropriating
rural land and selling it as a «buildable» or «suitable for development» land,
thus making a huge profit (difference between the compensation paid for ru-
ral land and the price obtained from selling the transformed «urban» slots to
the private market). Second, all development and building activities generat-
ed different sources of income for municipalities, in form of different taxes,
charges and fees that hit different aspects of the building process. When the
housing «bubble» suddenly exploded in 2008-9, the whole development and
housing sector got paralysed, and the income for municipalities sank dra-
matically, which aggravated the already chronic problem of financial insuf-
ficiency of municipalities.
7.3. Transfers
49
According to the source mentioned at the previous footnote, transfers represent roughly
45% of the total revenues of the municipalities. This proportion is much higher in the case of
provinces: 67%.
50
Source: Min. de Economía y Hacienda: Haciendas locales en cifras. Avance 2009.
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local government in spain
7.4. The public deficit and the debt of the local sector
As a general rule, local authorities may have recourse to the private sector,
to ask for loans and credits from the banking system, and they may also issue
bonds. The Local Finances Act establishes several prudential control mecha-
nisms on this source of financing, to prevent an excessive debt of the local sec-
tor, among others: (a) some statutory caps on the local debt: for short-term
loans, they cannot exceed 30% of the previous year operating revenue; (b)
Prior authorisation from the State of from the autonomous communities is re-
quired whenever annual repayments of long-term loans and credits exceeds
125% of the operating revenue in the previous year; (c) long-term credit opera-
tions are severely limited (art. 53, Local Finances Act).
In spite of these prudential rules, one critical aspect of current local authori-
ties’ finances is represented by the accumulated debt they drag along. The fact
is that local authorities have been increasing their debt with private contractors
and banks (short and long-term loans) over the last decades, due to expansive
budgetary policies linked to electoralism, excessive borrowing and the housing
bubble which dominated the Spanish economy during the last twenty years. In
the wake of the current economic and financial crisis, the figures have become
a matter of national political concern. Thus, by the end of 2009, the whole
group of local authorities accumulated a debt of 34,594 million €.53 This
51
See: arts. 111 et seq,, Local Finances Act.
52
Also noticeable was the State «Program E», which in 2010 transferred several million €
to municipalities, to fund public works with the aim of revitalizing the economy.
53
Source: Report of the Central Bank of June, 2010. The Central Bank of Spain (Banco de
España) carries out regular reports on the aggregated figures of the deficit of the different levels
of government in the country.
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amount represented 3,3% of Spain’s GDP. More than 80% of such figure
(28,770 millions) corresponded to municipalities and municipal associations,
while the rest (5,825 millions) corresponded to Provinces and Island councils.
Municipal companies accumulated a debt of 7,885 million €. In the first quar-
ter of 2011, the figures were even worse. The total accumulated debt of Spanish
local authorities amounted to 37,352 million €, which represented an increase
of 3,2% over previous figures.54
This situation has triggered the enactment of different rules. For instance, a
2007 statute on budgetary stability55 introduced provisions to combat local au-
thorities’ deficit and imposed further budget discipline. Later, Royal Decree-Law
8/2010, of 20 May 2010 has established exceptional measures for the reduction of
the public deficit. What is more, and in the wake of growing political concern
about this state of facts, the Constitution itself (art. 135) was amended in Septem-
ber 2011, to introduce further limitations on the public debt and to stabilise the
public budgets, which affect all governmental bodies, including local authorities.
From the perspective of local autonomy, local property does not present
noticeable of unsatisfactory features in Spain. Local authorities are entitled to
own and use any kind of property, goods and assets (tangible and non-tangible,
moveable and non moveable) for the discharge of their responsibilities and the
delivery of local services. What is more, local property may be the source of
substantial revenue for the local body, by charging fees and public prices for
their use (see point 7, supra). Local authorities may acquire property through
any legal way, including the use of eminent domain. Therefore, the legal scheme
of local property (Act 7/85, Royal Decree 1372/1986, of 13 June 1986 and ad-
ditional regional rules) provides a fair and sufficient room for the development
of local policies and programs. In fact, local authorities own a considerable
amount of property and assets, even more than regions.
Like in other European countries with a «continental», droit administratif
tradition, local property is regulated by a special legal regime, to which regular
Civil Law applies in a subsidiary way. Also, local property may be divided in
two main groups of goods and assets: (a) public domain property (dominio
público); and (b) private property (bienes patrimoniales). The first group is
constituted by those goods and assets which are linked to a specific local ser-
vice (for instance, the town hall, and other local infrastructures and facilities
such as slaughterhouses, marketplaces, museums, schools, cemeteries, etc.), or
which are open to the general use of the public at large (the streets, squares,
54
Source: Report of the Central Bank of June, 2011.
55
Royal Legislative Decree 2/2007, of 28 December 2007.
624
local government in spain
parks, bridges, etc). This type of local property is especially protected by the
Law, as it cannot be sold, transferred or be subject to mortgages. It cannot be
seized or executed, neither. What is more, local authorities enjoy special rights
and unilateral prerogatives for protecting these goods: they can investigate the
legal situation of these goods; they can impose sanctions and fines on those
who damage or use them improperly; they can recuperate the possession of
these goods and they can even evict unlawful users of the said property. All
these powers may be exercised by the local authority without the need of going
to court, although the affected citizen may of course challenge the local deci-
sions if they are illegal. Public domain property may be used by citizens and
firms in a free way, or under certain legal schemes (licenses, authorizations,
etc.) which grant them more or less exclusive (although limited in time) rights,
the strongest being the «administrative concession». Again, in these legal fig-
ures the local authority is not considered just as a «regular landlord», but its
position is qualified and is plenty of governmental prerogatives, alien to regular
civil law relationships.
On the other hand, local «private property» (bienes patrimoniales) is
formed by those goods and assets which are neither connected with a public
service nor open to the public enjoyment. The shares of corporations owned by
local authorities have this legal nature, as so do the slots of land which mu-
nicipalities are supposed to keep in order to influencing the local real estate
market (patrimonios municipales de suelo). Local private property is regulat-
ed, as a rule, by private law, but Administrative law devices and procedures
apply, too. Even in this case the local authority is not depicted by the Law just
as a regular «private» owner, since it enjoys a set of special rights and pre-
rogatives for the protection of the public interest, although in an attenuated
manner. Contrary to public domain goods, local private property may be sold
or transferred. Some limitations, again, here apply: local authorities need to
obtain the approval of the regional competent body if they want to sell goods
and assets whose value exceeds of 25% the regular annual income of the local
budget.
9.1. Introduction
56
In Spain, the Ombudsman may be found in the three levels of territorial government: (a) at
the State, national level; (b) at the regional level; and (c) at the local level. The national Ombuds-
man («Defensor del Pueblo», literally, «defender of the people»), was the first to be incepted.
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angel-manuel moreno
Under the Spanish constitutional system (see above, point 3.1) local autonomy
means, above all, a realm of decision-making in the hands of local authorities,
which can be exercised free from intervention, «authorisation» of «approval»
by the upper levels of government (the regional and the national agencies). This
basic assumption does not mean that each municipality is an «independent»
entity, or a «city-state» in the old Greek historical meaning. Local autonomy
does not mean absence of external control. In fact, lato sensu, the activity of
local authorities may be «checked», controlled or supervised by different types
of bodies, with a different degree of scrutiny.
First of all, local authorities, as units of the executive branch, may be control-
led by the courts. The most important judicial control is performed by the admin-
istrative courts (jurisdicción contencioso-administrativa), which, as in other Eu-
ropean countries, constitute a specific jurisdictional track within the judicial
power.57 Any affected person, company or organisation may file a lawsuit chal-
lenging a Local authority’s decision, a regulation or a plan, if they comply with
the general requirements (i.e. locus standi) established in the applicable 1998
procedural law. What is more, other governmental authorities (either the regional
or the state ones) may also sue the local body in courts, if the local body’s action
is illegal or there is a discussion on competences (see point 9.2, infra).
Second, the national court of auditors (Tribunal de Cuentas) also performs
a «post facto» control on the lawfulness and regularity of the expenses made by
local authorities, on the basis of the applicable law on budgeting and account-
ancy. If the municipality or the province is located in a Region which has its
own Court of Auditors, then they are also controlled by that body. However,
this control is rather slow, and, because of their workload, the control takes
place several years after the end of the fiscal year that is controlled. When il-
legalities or irregularities are found, responsibilities may follow on the part of
the mayor, the deputy-mayors, etc. Thirdly, there is a complex and delicate set
of inter-administrative controls, which is analysed below.
Later, many regions have established their own ombudsmen (13 out of 17 in total). On the other
hand, some local authorities have also established an office which holds the name of Ombudsman
or «defensor del pueblo» (cities of Barcelona, Cornellá, provinces of Córdoba and Málaga) , but it
is hard to know where this figure exists, since there is no official account of this development, each
local authority decides in a free manner, and there is no clear or common pattern whatsoever.
57
However, the Spanish situation is different to that in Holland, France, Greece, Belgium or
Luxembourg, in the sense that the Council of State (Consejo de Estado) does not have any juris-
dictional powers. The highest court in administrative litigation is the Supreme Court (Tribunal
Supremo).
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local government in spain
58
All municipalities and provinces must communicate the decisions or legal measures that
they adopt to the regions and to the respective regional offices of the State administration. This
duty to just «communicate» has been found compatible with local autonomy, in the constitu-
tional court case-law.
59
In the cases of the cities of Ceuta and Melilla, this «final» approval must be awarded by
the State Department.
60
Municipalities, however, may approve more detailed or restricted plans, and construction
projects, without the control or approval of the region.
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angel-manuel moreno
Apart from this open «yes or no» decision of approval by the Region,
regional agencies have other indirect ways to determine the content of
the local authority measure. For instance, and under the legislation on
strategic assessment for land use plans, every municipal master land
use plan needs a Strategic assessment, which is performed by the re-
gion. In this environmental assessment, several questions and aspects
must be evaluated, which are not purely «legality» matters.61 In any
case, the municipality has to introduce in the master plan the «re-
marks», the «suggestions» and «recommendations» expressed by the
regional agency; otherwise, the plan will not get the «final» regional
approval required by the law.
In other cases, municipalities do require the plain approval of the re-
gion or the state to take a decision. Theses cases are, of course, excep-
tional. For instance, in financial matters, municipalities must obtain the
approval of regional or State finance&budget authorities if they want
to take loans or to engage in public debt beyond certain ceilings, or if
they want to convey property (see point 7). Finally, the performance of
popular consultations («local referendums») must also be approved by
the Council of Ministers (art. 71, Act 7/85).
(C)
Supervision and control by central and regional authorities on grounds
of expediency is increasing during the last years, although in an indi-
rect, subtle or «disguised» way. This control has been introduced by
several techniques. On the one hand, certain recent laws and regula-
tions have established criteria, guidelines and rules in the domain of
budgeting and expenses, which must be followed by local authorities.
The second mechanism to conditioning or determining the «free»
choice of local authorities comes from the «inter-administrative coor-
dination», where the regions (preferentially) or the State (very rarely)
have the power to coordinate different local plans or programs. This
happens especially in the domain of public infrastructures, local police,
education, etc.
(D) The system of inter-administrative control of legality is mainly regu-
lated at arts. 65 and ff. of the Act 7/85, on Local government. Different
possibilities must be considered:
(1st) The Region or the State believes that a local authority has taken a
measure (either an individual decision, a rule or a plan) that is il-
legal. In this case, the regional or State agency issues a warning to
the local body, asking for the annulment of the contested meas-
ure. The local authority has a one-month period for either rectify-
61
For instance: does the plan provide for a sufficient protection of soils? Is the path of urban
growth sustainable?, etc. When the regional agency identifies these questions, it may arrive to
different conclusions and interpretation of these murky concepts.
628
local government in spain
ing the measure or sustaining it. In the latter case, the regional or
State agency may sue the local body in the administrative courts.
A direct judicial claim (without the need to issuing a warning) is
also possible. Although this is not explicitly regulated by the legal
scheme on local government, the general law on judicial control
of administrative action allows the State/region attorney to ask
the court to issue an injunction (suspension of the execution of the
contested measure).
(2nd) The region or the State believes that a local authority has taken a
measure (either an individual decision, a rule or a plan) for which
the local body does not have competence, or which encroaches
with competences of the «higher» administrations. In this case,
the regional or State agency, without the need of issuing a warn-
ing, may sue the local body in the administrative courts. In the
complaint, the region/state may ask the court to suspend the ex-
ecution and enforcement of such a measure. However, that sus-
pension is not automatically granted by the court. The adminis-
trative judge is free to decide whether the suspension is justified
or not. If granted, the suspension lasts until the case is adjudi-
cated on the merits. The state agency has the duty to provide ar-
guments and evidence that the suspension is necessary.
(3rd) The State (through its territorial delegates) understands that a local
authority has taken a measure (either an individual decision, a rule
or a plan) that endangers seriously the general interest of Spain: in
this case, the delegate of the national government must address a
warning to the local body, which has a ten-day period to either
rectify or to sustain the contested measure. In the latter case, the
national government’s delegate has the power to suspend the con-
tested decision by its own power, but he must immediately sue
(within a ten-day period) the local authority in the administrative
court. In this litigation, thus, the State delegate will ask the court
to affirm the suspension that he has already declared. However,
the central government holds the burden of persuading the court
that the suspension already declared must be sustained.
(E)
Substitution: in exceptional cases, the region or the State may take ac-
tion or adopt measures in place of the local authority, if the local body
consistently and unlawfully refused to adopt a measure which is ob-
ligatory under the law. Substitution is an extraordinary mechanism.
Therefore, it has to be time-limited, and restrained to a given file or a
concrete decision.
(F)
Dissolution: in very extreme cases, the Council of Ministers, which is
the top central government agency, may decide to dissolve the govern-
ing body of a local authority, when the local body runs the local affairs
629
angel-manuel moreno
in a way which seriously damages the general interest and which con-
stitute a violation of a constitutional duty. This has happened only a
couple of times in the last 35 years (for instance, dissolution of the city
council of the city of Marbella in 2006, due to massive corruption
linked to land use and housing construction practices).
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local government in spain
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angel-manuel moreno
Other claims have not been admitted by the Court for different reasons and
thus have not been adjudicated on the merits. In a nutshell, there is a «constitu-
tional» protection of local autonomy in Spain, which may be used under strict
procedural requirements by local authorities. However, so far this device has
but rarely been triggered, and has not produced one single declaration of uncon-
stitutionality.
In Spain, local government has a clear connection with the European Union.
On the one hand, Spain has 21 representatives in the Committee of the Region.
Under a 1993 motion of the national Senate, it was decided that seventeen of
those representatives belong to the regions and four should represent the local
authorities (only big cities). These four full members are complemented by four
additional alternate members. The said representatives of the local government
are proposed by the national association of municipalities and provinces
(«FEMP»), usually according to the political power of each major political
party after the local elections. On the other hand, the Spanish delegation rotates
every two years. In spite of this «organic» representation of the local world in
the EU institutions, it has to be said that the actual weight of local authorities in
the EU decision-making process is very reduced. The hottest issue in Spain is
how to give the Regions an input in the voice and the positions of Spain as an
EU member state, while providing for a bigger municipal voice has never been
a major issue. In contrast with this weak representation of local governments
interests in the EU, it has to be said that local authorities in Spain play an im-
portant role in the execution and implementation of several rules and EU poli-
cies, such as environmental protection.
On the other hand, special attention should be given in this point to EU
structural funds and regional policy. Since the accession of Spain to the Euro-
pean Communities in 1986, many municipalities and provinces have been re-
cipients of huge amounts of funds coming from the different European pro-
grams and plans. In general, they participate actively in the design and
(partially) in the implementation of eligible projects for financial help, which
are mainly framed, proposed and managed by the Regions. Moreover, some EU
funding programs have been specifically designed for the local authorities, like
FEDER62 and the Cohesion fund.63 Moreover, some programs are implemented
by means of European Commision «Initiatives» (example: the URBAN
62
Actions under the FEDER program are managed by the Ministry of Territorial Coopera-
tion and Public Administration, and they are addressed to municipalities under 50,000 inhabit-
ants. The current phase of this fund (2007-2013) plans an overall amount of 346,77 million € for
Spain. The cities of Ceuta and Melilla are entitled to an additional financing of 50 million €.
63
The current phase of this fund (2007-2013) plans an overall amount of 3,543 million € for
Spain (Decision of the Europan Council of 16 December 2005)
632
local government in spain
64
Since 1994, URBAN promotes integrated projects on sustainable local development in Span-
ish cities that are capitals of the province or have more than 50,000 inhabitants. The third phase of
URBAN (now renamed «URBANA») covers the period 2007-2013 and plans and overall assistance
of 344,66 million € for Spanish local authorities. 138 authorities are eligible under this scheme.
65
For more detailed information, see the website of the General Directorate of European
Funds: http://www.dgfc.sgpg.meh.es
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angel-manuel moreno
(A) Books66
Yearbooks:
Sainz de Baranda Foundation: Anuario Aragonés del Gobierno Local. A
yearly review of the most relevant developments in the domain of local gov-
ernment in Spain (with a focus on the Region of Aragon). 2nd edition, 2010.
Instituto de Derecho Local: Anuario de Derecho Municipal (4th edition,
2011).
66
Due to the high amount of specialised bibliography on local government, reference is
herein made to treatises and manuals only.
634
local government in spain
635
Chapter 26:
LOCAL GOVERNMENT IN SWEDEN
Tom MADELL
Sweden has a very long history of local decision-making. During the middle
ages, there was a well-developed system of local self-government, both in rural
areas and cities, but during the 17th century, the monarchy strengthened its cen-
tralised power. However, during the 18th century some local self-government
issues were extended to the Church, which was organised in local units, the
parish (socken), and to city governments (stad). Both parishes and cities be-
came responsible for poor relief.1 «In rural areas, local self-government as-
sumed rather clear shape as a result of ordinances issued in 1807 and 1843,
while city governments remained unregulated. The concept of municipality
(kommun) as an independent legal person had not yet emerged. Instead, inhabit-
ants of a parish or a city were regarded as the actual subjects of self-government.»2
An important cornerstone of local self-government was laid with the lo-
cal government reforms in 1862. Ecclesiastic and secular affairs were sepa-
rated and the cities and rural municipalities – which had the same geograph-
ic boundaries as rural parishes – became responsible for secular affairs. At
the same time, elected county councils with a rather broad range of powers
on the regional level (landsting) were established. Since the 1977 Local
1
The information in the introduction basically comes from John Olsson: Svensk kommu-
nalförvaltning, Stockholm 1957; Sören Häggroth, Kai Kronvall, Curt Riberdahl & Karin Rude-
beck: Swedish Local government, Traditions and Reforms, The Swedish Institute, Stockholm
1993, pp. 7–11; Gunnar Wetterberg: Kommunerna, SNS Förlag, Stockholm 2000, pp. 17– 22,
and http://english.skl.se/web/Municipalities_county_councils_and_regions.aspx.
2
Sören Häggroth, Kai Kronvall, Curt Riberdahl & Karin Rudebeck: Swedish Local govern-
ment; Traditions and Reforms, The Swedish Institute, Stockholm 1993, p. 8.
637
tom madell
Government Act, the same rules apply for all municipalities and county
councils.To some extent, the historical heritage of the legislation of 1862
still can be found in the 1991 Local Government Act. First of all, the Swed-
ish municipalities are based on a competence of power between a directly
elected municipal assembly and an executive committee. Secondly, already
in 1862 the municipalities and county councils were granted the right to levy
their own taxes and to set their own tax rates when they adopted their local
budgets – without the approval of any central government. A third heritage
is the citizens right to appeal against the legality of local government deci-
sions.
For many years, the main responsibility for providing various types of pub-
lic services in Sweden has rested on local government. The importance of local
government has also grown apace with the construction of the welfare state.
The municipalities (charged with local government functions) have, during the
last decades, taken over responsibility in several areas where central govern-
ment or the (regional) county councils used to have responsibility, e.g. the re-
sponsibility for providing basic care and treatment for the elderly, the chroni-
cally ill, the care for the physical or mentally disabled and other residents of
«special types of accommodation» and child care.
The changes in Swedish welfare policies during the last two decades –
with decentralisation and privatisation – have also been aimed at decreas-
ing the size of the public sector, whilst keeping up the levels and maintain-
ing the goals of the welfare state. Legislation on social services and other
local government issues has increasingly been structured as «frame-work»
laws while providing few details. This gives the municipalities responsi-
bility for organising and providing several types of public services, whilst
central government has retained the means to exert influence and control.
In general terms, one could say that during the last decade, the public sec-
tor in Sweden has been characterised by less central government control.
The legislation has been constructed as «defined-rights legislation», im-
posing duties on public authorities but not conferring enforceable rights on
individuals.
Today, municipalities, county councils and regions to a large extent procure
services from private companies. Activities carried out by private companies
on behalf of municipalities, county councils or regions are financed using pub-
lic funds. In some areas – such as refuse collection, public transport and dental
care – it has been for a long time common for the public authorities to procure
services externally. During the last ten years, an increased number of private
companies have begun to run preschools, schools, hospitals and care facilities.
Competition with private enterprise, and privatisation, has been a hallmark of
638
local government in sweden
the municipal area since the beginning of the 1990s and in this respect, the in-
fluence of European Union cannot be underestimated.3
One of the biggest challenges today is to define the ability of local authori-
ties to determine their own internal structures.4 In Nordic societies, the provi-
sion of welfare services through the welfare state has been a key element for a
number of years and there has been considerable political consensus on the
desirability of preserving the welfare state.5 However, liberalisation and priva-
tisation, which is generally promoted at the economic and social level through
the development of the Internal Market in the EU, may put pressure on welfare
states and create tensions between the EU and Member States in matters of
welfare. One problem with the development is the so-called Kommunalblind-
heit – blindness regarding local authorities – of EU-law when it comes to the
municipal responsibility for planning and developing infra structure and social
services etc. – a responsibility that has a long tradition in the Scandinavian
welfare states.6
Sweden has a population of 9.3 million people and the surface area is
450,295 km2, which makes 20.1 inhabitants/km2. The mostly spoken language
is Swedish, but there is also some small Sami- and Finnish speaking minorities.
There are two tiers of government in Sweden – central government and lo-
cal/regional government – and there are two levels of local and regional admin-
istration in Sweden. At the local level there are directly elected municipalities
(kommuner). At the regional level there are directly elected county councils
(landsting) or, in a few cases, «regions», who have more extensive functions
than the county councils. In addition, there are central government agencies at
regional level: a general purpose county administrative board (länsstyrelser) in
3
����������������������������������������������������������������������������������������
About the use of public and administrative contracts in Sweden, see Tom Madell, Det all-
männa som avtalspart – särskilt avseende kommuns kompetens att ingå avtal samt avtalens rätts-
verkningar, 1998.
4
See Tom Madell: «The framework of public services in Sweden», in: The changing legal
framework for Services of General Interest in Europe – Between competition and solidarity,
Markus Kravewski, Ulla Neergaard & Johan van de Gronden (Eds.), T M C Asser Press, Hague
2009, pp. 423–450.
5
See e.g. Anna Hollander & Tom Madell: Socialtjänst på entreprenad – kan utredningar
inom individ- och familjeomsorg överlämnas till enskilda utan särskilt stöd av lag?, FT 2003, p.
15–46, and N. F. Christiansen, The Nordic Model of Welfare, 2006.
6
The terminus goes back to Angela Faber: Die Zukunft kommunaler Selbstverwaltung,
Deutsches Verwaltungsblatt 1991, p. 1126 (1132). See also Dian Schefold: »Zur Gestalt der
Regionen», in: Europa und seine Verfassung, Festschrift für Manfred Zuleeg, Charlotte Gaitani-
des and others (Eds.), Baden-Baden 2005, p. 288 (esp. 292 note 23, 293, note 25, 306 with note
76). In the recent discussion, see the volume 1 of Handbuch der kommunalen Wissenschaft und
Praxis, Günter Püttner & Thomas Mann (Eds.), vol. 1, 3rd ed., Berlin 2007.
639
tom madell
7
See http://www.skl.se/web/Fakta_om_lan_och_kommuner.aspx and Anders Lidström,
«Sweden: Party-dominated Subnational Democracy under Challenge?» in: The Oxford Hand-
book of Local and Regional Democracy in Europe, Oxford University Press, Oxford 2011, pp.
266–273.
8
See also the travaux préparatoires: prop. 2009/10:80, En reformerad grundlag, pp. 208–216,
SOU 2008:125, En reformerad grundlag, Del 1, pp. 531–544, SOU 2008:125, En reformerad
grundlag, Del 2, pp. 805 f., and SOU 2007:93, Den kommunala självstyrelsens grundlagsskydd.
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local government in sweden
and it follows from Article 2 that the local authorities are responsible for local
and regional matters of public interest, in accordance with more detailed rules.
It is stated in Article 3 that the legislator needs to take into account the principle
of proportionality if there are any changes proposed that might affect the local
self-government. In addition, Chapter 1, Section 1, of the 1991 Local Govern-
ment Act (kommunallagen) states that the municipalities and county councils
attend to the matters indicated in the Act or in special regulations, proceeding
on principles of democracy and local self-government. The responsibilities of
Sweden’s municipalities, county councils and regions are not only regulated in
the Local Government Act. There are also laws and regulations covering spe-
cific areas of local and regional government responsibilities, e.g. the Social
Services Act, the Planning and Building Act, the Education Act and the Health
and Medical Services Act. Within the framework of these and a large number
of other acts the municipalities, county councils and regions have a great deal
of freedom to organise their activities as they see fit.
641
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sions of the Charter are actually incorporated into the domestic legal system,
but it is difficult to find ‘hard’ or formal evidence of this incorporation, outside
the Parliament’s approval and some references to the Charter in the preparatory
works. In any case, one should keep in mind that Swedish travaux prépara-
toires are usually viewed as an utterly important document for the interpreta-
tion of the enacted text. They are usually followed, not because they are for-
mally binding but because that is the Swedish legal tradition.
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local government in sweden
ies, the county councils. Over the past 50 years, responsibility for several major
public services, such as social care and elementary schools, has been shifted
from the state to municipalities. Thus, municipalities enjoy a strong status in
society due to their extended area of operations. The cost of tasks that fall under
the responsibility of the municipality are, to a major extent, covered by income
tax paid by inhabitants of the municipality and the cost of the provided services
are, to some extent, covered by fees.
The principle of local self-government is one of the fundamental principles
of the Swedish democratic system, and forms the basis of activities undertaken
by municipalities. However, the responsibilities of local authorities are not only
regulated in the Local Government Act. It also follows from certain legislation
that the main responsibility for providing various types of public tasks rests
with the municipalities or the county councils. The municipalities are responsi-
ble for several major public services, such as social care and elementary schools,
planning, constructing and operating facilities for water, wastewater, waste
management etc. When it comes to the provision of many mandatory tasks, the
specific areas are covered in laws and ordinances, for example the Social Ser-
vices Act, the Planning and Building Act, the Education Act and the Health and
Medical Services Act. It also follows from the Expropriation Act that the mu-
nicipalities can expropriate private property if needed for the fulfilment of in-
frastructure projects etc. The municipalities also have some rulemaking capac-
ity, e.g. in local traffic regulation, some environmental issues and concerning
the consumption of alcohol etc. in public places.
In the early 1990s, the Swedish Parliament ruled on a principle that allowed
the services provided by municipalities and county councils to be run by entre-
preneurs under contract, apart from those activities involving the exercise of
public authority. Municipalities and county councils are therefore free to decide
the forms in which municipal and county council services may be organised.
Services can thus be delivered by municipalities themselves, by municipal
companies9 or by providers that have been procured under contract by coopera-
tive companies, private individuals and associations.10
The national agencies in charge of social services supervise their provision
on behalf of the central Government. This supervision, which takes place at
both national and regional levels, consists of monitoring and evaluating service
provision, considering individual cases and ensuring that the rights of individu-
als are respected.
9
There are many municipal owned companies in Sweden and they operate in a lot of differ-
ent areas, electricity, water supply and waste water, garbage collection, real estate management
etc. More than 20% of the different companies in the municipality where owned by a municipal
owned holding company (in 62 of a total of 290 municipalities).
10
See Tom Madell: «Chapter 20; Sweden», in: The Changing Legal Framework for Services
of General Interest in Europe – Between Competition and Solidarity, Markus Krajewski, Ulla
Neergaard & Johan van de Gronden (Eds.), The Hague 2009, pp. 423–450.
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The Swedish municipalities are by law responsible for the provision of, e.g.:
– Social services
– Childcare and preschools
– Elderly care
– Support for the physically and intellectually disabled
– Primary and secondary education
– Planning and building issues
– Health and environmental protection
– Refuse collection and waste management
– Emergency services and emergency preparedness
– Water and sewerage
– Libraries.
On a voluntary basis and within the frame of the Local Government Act the
Swedish municipalities are also allowed (and more or less expected) to provide
services within, e.g.:
– Leisure activities
– Cultural activities
– Housing
– Energy
– Industrial and commercial services.
11
Se http://english.skl.se/web/Activities_1.aspx.
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local government in sweden
5.1. Elections
A proportional election system is used for local, regional and national elec-
tions. At the local level there are directly elected municipalities. At regional
level, there are directly elected county councils (or regions). Local, regional
and national elections are held at the same date: the third Sunday in September,
every fourth year (the next election will be held in 2014). In these elections,
Swedes vote for political parties to represent them in the three political assem-
blies: the municipal assembly, the county council or regional assembly and the
national parliament (Riksdagen).
The right to vote in elections to county and municipal councils belongs to
Swedish citizens who attain the age of 18 no later than on election day and who
are registered for population purposes within the county area or municipality
concerned. Citizens of the European Union and citizens of Iceland and Norway
also have the right to vote, subject to the same conditions. Other foreign citi-
zens have the right to vote if they have been registered residents in Sweden for
a continuous period of three years before Election Day. A person who has the
right to vote is also eligible for election. When it comes to voting for the na-
tional Parliament, a Swedish emigrant is automatically entitled to vote until ten
years after he or she left the country.
People who are entitled to vote may also stand for election, if they are nom-
inated by a political party. Most of those holding elected office at local and re-
gional level are not full-time politicians. They carry out their political work
alongside their ordinary jobs.
It is common in Sweden to talk about a non-socialist bloc and a socialist bloc.
The national parties also dominate at a local level. The non-socialist block is made
up of the Centre Party (c), the Liberal Party (fp), the Moderate Party (m) and the
Christian Democrats (kd). The socialist bloc consists of the Social Democrats (s)
and the Left Party (v). The Green Party (mp) is often considered as being part of
the socialist bloc, but in some areas the party holds the balance of power and
chooses the bloc it wishes to support on each particular issue. There is a long tradi-
tion of consensus at local and regional levels, and it is common for parties to co-
operate and form majorities with parties from different blocs. Apart from these
national parties, there are also specific local parties, sometimes single-issue parties.
645
tom madell
county has one decision-making assembly: the municipal assembly in the mu-
nicipalities and the county council assembly in the county councils. A munici-
pal assembly shall appoint a municipal executive committee and a county as-
sembly a county council executive committee. The assembly shall also appoint
the committees needed, in addition to the executive committee, for the dis-
charge of the duties of the municipality or county council under special enact-
ments and for the conduct of its other activities. The rules concerning the as-
sembly can be found in Chapter 5 the Local Government Act. All assembly
meetings are open to the public.
The assembly decides how many members the assembly shall have. The
number shall be set at an odd number and not less than the following:
– 31 in municipalities with 12,000 or less residents entitled to vote and in
county councils with 140,000 or less residents entitled to vote,
– 41 in municipalities with more than 12,000 and up to 24,000 residents
entitled to vote,
– 51 in municipalities with more than 24,000 and up to 36,000 residents
entitled to vote, and in county councils with more than 140,000 and up to
200,000 residents entitled to vote,
– 61 in municipalities with more than 36,000 residents entitled to vote, and
– 71 in county councils with more than 200,000 residents entitled to vote.
– In the Municipality of Stockholm and in county councils with more than
300,000 residents entitled to vote, however, the number of members shall
be set at not less than 101. There shall be alternates for the members of the
assembly.
Members and alternate members of the assembly are to be elected for four
years, as from 1 November of the election year.
It follows from Chapter 5, Section 6, that the assembly elects a chairman and
one or more vice chairmen from among its members and that the assembly de-
cides the duration of these mandates.
An assembly may only deal with a matter if more than half of its members
are present. An assembly may, however, decide that interpellations and ques-
tions are to be replied to even if fewer members are present. A member may not
deal with a matter of personal concern to the member himself, to the member’s
spouse, cohabitant, parents, children or siblings or any other person with whom
he is closely connected.
Before a matter is decided by the assembly, it shall have been prepared ei-
ther by a committee whose sphere of activity is concerned or by an assembly
drafting committee. If a matter has been prepared by an assembly drafting com-
mittee only, a committee whose sphere of activity it concerns shall always be
consulted. The executive committee shall always be consulted in a matter which
has been drafted by another committee or by an assembly drafting committee.
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local government in sweden
The executive committee shall put forward a proposal for the decision of a mat-
ter if this has not been done by another committee or by an assembly drafting
committee. According to Chapter 5, Section 38, the Local government Act as-
sembly meetings are public. The assembly may, however, decide that a particu-
lar matter is to be discussed in camera. The alternates may attend a discussion
of this kind, even if they are not serving. The chairman leads the assembly
meetings and is responsible for the maintenance of order during the same.
According to Chapter 3, Section 9 of the Local Government Act, the assem-
bly decides matters involving questions of principle or otherwise of major im-
portance to the municipality or county council, especially:
1. goals and guidelines of activities,
2. budget, taxation and other important financial questions,
3. the organisation and procedures of committees,
4. the election of committee and drafting committee members and alter-
nates,
5. the election of auditors and their alternates,
6. the basis of financial benefits for elected representatives,
7. the annual report and discharge from liability,
8. the referendum in the municipality or county council.
The assembly also decides other matters indicated in the Local Government
Act or in other enactments. It follows from Chapter 3, Section 10 the Local
Government Act that the assembly may entrust to a committee to decide a cer-
tain matter or group of matters in the council’s stead. Matters indicated in Sec-
tion 9, subsection one (or required by law or statutory instrument to be decided
by the council) may not be delegated to the committees.
647
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648
local government in sweden
As written above, the assembly in every municipality decides how many mem-
bers the assembly shall have. Depending on the population in the municipality,
there are some minimum levels. However, totally there are approximately 46,000
political assignments in the 290 municipalities and 3,500 political assignments in
the 20 county councils and regions. This means that 1% of the adult population in
Sweden holds a political assignment in a municipality or county council. Most of
those holding elected office at local and regional level are not full-time politicians.
They carry out their political work alongside their ordinary jobs.
In local government assemblies, 42% of the councillors are women and 58%
are men. In the county council assemblies, 47% are women and 53% are men.
Approximately half the councillors in local government councils and county
council assemblies are between 50 and 65 years old. Only 5% are between 18
and 29 years old and close to 10% are older than 65.12
Overall, municipalities and county councils employ more than one million
people, corresponding roughly to 25% of total employment in Sweden. Mu-
12
See http://www.skl.se/web/Fakta_om_lan_och_kommuner.aspx
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13
See http://www.skl.se/web/Antal_anstallda_i_landsting_2008.aspx
650
local government in sweden
ties, county councils and regions are obliged to provide a service, they may
only charge for the service if specifically permitted to do so by law.14
The income of the local authorities in Sweden is better showed in this graph:
F
E
A
B
14
See http://english.skl.se/web/Local_self-government.aspx and Anders Lidström: «Swe-
den: Party-dominated Subnational Democracy under Challenge?», in: The Oxford Handbook of
Local and Regional Democracy in Europe, Oxford University Press, Oxford 2011, pp. 261–281,
and Anders Lidström: Kommunsystem i Europa, Liber, 2003, pp. 26– 30.
15
See http://www.skl.se/web/Kostnader_och_intakter.aspx
16
See http://www.skl.se/web/Kostnader_och_intakter.aspx
651
tom madell
The income of the regional authorities (county councils and regions) is pre-
sented in this graph:
F
E
D
B A
17
See http://www.skl.se/web/Kostnader_och_intakter_1.aspx
18
See http://www.skl.se/web/Kostnader_och_intakter_1.aspx
652
local government in sweden
19
See Tom Madell, «The framework of public services in Sweden», in: The changing legal
framework for Services of General Interest in Europe – Between competition and solidarity, Ed.
Markus Kravewski, Ulla Neergaard & Johan van de Gronden, T M C Asser Press, Hague 2009,
pp. 423–450.
653
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It is also common that a municipality own a holding company that owns the
other companies in the municipality. There are about 1,600 municipal compa-
nies in Sweden and official statistic shows that more than 20% of such compa-
nies are owned by a municipal holding company – in 62 of a total of 290 mu-
nicipalities).
In Sweden, there are basically three types of courts: (a) general courts, (b)
administrative courts and (c) special courts. The general courts deal with crim-
inal and civil cases. The administrative courts deal with administrative appeal
cases, according to the Administrative Procedure Act and the special Municipal
Appeal. The special courts often require some kind of special competence. The
need for expert knowledge has lead to different types of specialised courts ei-
ther by the establishment of independent courts to hear certain types of cases,
or by directing certain types of cases to certain district courts to be handled with
or without technical experts as members of the courts.
The municipal appeal (laglighetsprövning) is a form of actio popularis and
is used to exercise a citizen control over decisions by the municipal administra-
tion on both local and regional level. Any member (resident or property owner)
in the municipality or county council concerned may call for this court control
within three weeks from the day on which a formal announcement of the deci-
sion has been made. The scope of control is limited to legal aspects of the deci-
sion made by the elected municipal bodies, and the administrative court may
not take into consideration aspects of the suitability of the decision or take ac-
count facts or circumstances that have not been invoked by the complainant
before the end of the appeal period.
The decisions adopted by the municipal administrative authorities are usu-
ally appealable according to special legislation and the procedure outlined in
the foregoing sectors is applicable. A citizen can make an administrative appeal
(förvaltningsbesvär) based on the Administrative Procedure Act. When an au-
thority has the competence to decide about matters of such importance, for in-
stance granting a service or prohibiting some activity, the authority is said to
exercise public authority and then special procedural rules are considered es-
sential to maintain the Rule of Law. If a party is dissatisfied with a decision, he
or she may have the opportunity to appeal against it. However, there is no gen-
eral right for any citizen to call for a re-examination of a decision. Instead, the
decision must have some connection to the complainant. According to the Ad-
ministrative Procedure Act, a decision may be appealed by the person whom it
concerns, if it has gone against her, if the decision is final and considered to be
654
local government in sweden
655
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20
Sweden has had an Ombudsman Institution since 1809. At that time Sweden was ruled by
the King and therefore the Riksdag, which then represented the Four Estates, considered that
some institution that was independent of the King was needed in order to ensure that laws and
statutes were obeyed. For this reason it elected a Parliamentary Ombudsman and still continues
to do so. The first Ombudsman was appointed in 1810. Even though two centuries have now
elapsed, today the Parliamentary Ombudsmen still follow the basic principles that have applied
since then.
656
local government in sweden
fill a role similar to that of the Ombudsman: consumer complaints boards, pa-
tient injury boards21 and anti-discrimination agencies,22 etc. These actors have
different functions depending of the issue at stake. In some cases, they can be
seen as mediators who seek friendly settlements, while in other cases they act
more like a Human Rights Watchdog, etc.
In the areas where the municipalities or the county councils hold responsi-
bility for providing various types of public tasks, there are different authorities
that perform supervision or control over local activities. One important actor is
the National Board of Health and Welfare (Socialstyrelsen) which is a govern-
ment agency under the Ministry of Health and Social Affairs, with a very wide
range of activities and different duties within the fields of social services, health
and medical services, environmental health, communicable disease prevention
and epidemiology. In the field of social services, it can be mentioned that e.g.
the 1993 Law on Support and Service (lagen om stöd och service till vissa funk-
tionshindrade, LSS) is based on clear claimable rights for the disabled and com-
prehensive duties for the municipal authority in question. The rights regulated
in the LSS are assistance in various forms, aid resources, rehabilitation, serv-
ices and special living facilities. If the municipality does not execute the rights
in accordance with the law, it is possible for the National Board of Health and
Welfare to take the municipality to court and the municipality can be penalised
with a fine.23
The National Agency for Education (Skolstyrelsen) is responsible for the
control of childcare and education. The national Government and the Parlia-
ment specify goals and guidelines for preschool and school through the Educa-
tion Act (skollagen), curricula etc. The task of the Agency is to work actively
for the achievement of these goals. The Agency steers, supports, follows up and
evaluates the work of municipalities and schools with the purpose of improving
quality and the result of activities to ensure that all pupils have access to equal
education.24
Even if planning and building issues are regulated by law, building and
planning is to be seen predominantly as a local matter. The County Board
21
See http://www.pff.se/Information-in-English/.
22
The objective of the Anti-Discrimination Agency’s activities is to strengthen anti-discrim-
ination work at the municipal and regional level, to raise visibility, influence and change the
discriminatory structures and thereby prevent and combat the various forms of discrimination
and to help streamline the application of discrimination legislation.
23
See http://www.socialstyrelsen.se/english and prop. 2008/09:160, Samordnad och tydlig
tillsyn av socialtjänsten, and SOU 2007:82, Samordnad och tydlig tillsyn av socialtjänsten.
24
See the National Agency for Education web site, http://www.skolverket.se/sb/d/353.
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As stated above, the 1974 Instrument of Government, one of the four pillars
of the Swedish Constitution, contains some constitutional safeguards for the
protection of the local self-government. According to Chapter 14, Article 3, the
legislator needs to take into account the principle of proportionality if there are
any changes proposed that might affect the local self-government, while Article
4 gives a constitutional right to taxation. Also Chapter 1, Section 1, of the Local
Government Act states that the municipalities and county councils attend to the
matters indicated in the Act or in special regulations, proceeding on principles
of democracy and local self-government. Since the Swedish municipalities and
county councils are funding most of their activities by the income tax from the
citizens and the dependence of money from the central government in a com-
parative perspective is low, Sweden may be said to have a rather strong protec-
tion of local self-government.
25
See http://www.kkv.se/default____218.aspx.
26
The facts and figures are taken from http://english.skl.se/web/Local_government_and_
the_EU.aspx.
658
local government in sweden
Due to the system of municipal appeal, there are a huge number of cases
concerning the limits of the local self-governance. One also should bear in
mind that decisions concerning social services and other public services can
also be appealed. This fact triggers a huge volume of administrative appeal liti-
27
The facts and figures are taken from http://english.skl.se/web/European_and_worldwide_
co-operation.aspx.
659
tom madell
gation. On top of that, every year there are many court cases concerning public
procurement and contractual questions that are tried in the general courts. Thus,
it is more or less impossible to mention just a few important landmark cases.
660
local government in sweden
661
Chapter 27:
LOCAL GOVERNMENT IN THE
UNITED KINGDOM
Chris HIMSWORTH
In the United Kingdom, an essential backdrop for any study of local govern-
ment1 is provided by three principal features of the UK constitutional order.
Although formally described as unitary, the United Kingdom is often also de-
scribed as a «union state»– a term which captures the idea that it is made up of
four countries2 – England, Scotland, Wales and Northern Ireland – which retain
territorial, legal and cultural distinctions of their own.
For local government, this has meant that, even though supreme legislative
authority in the United Kingdom is retained by the Westminster Parliament in
London, that Parliament has frequently made separate legislative provision (es-
pecially for the structure of local government) for the different countries (dis-
tinguishing, in particular, between combined provision for England and Wales
on the one hand and then separate provision for each of Scotland and Northern
Ireland). Secondly, the defining characteristic of the UK constitution is that it is
«unwritten». There is no single ultimate documentary source which defines all
institutions and procedures. There is no constitutional court. There is no consti-
tutional provision (and certainly nothing which is entrenched against parlia-
mentary amendment) for local government.
And, thirdly, since 1999, a pattern of asymmetric arrangements for devolu-
tion has been instituted in respect of Scotland, Wales, Northern Ireland, and, to
1
In UK materials in general, the term «local self-government»is rarely encountered. The
idea of democratic (and autonomous) local authorities is captured by the simpler term «local
government». In this chapter, however, both terms are used more or less interchangeably.
2
Although these may also be described as «regions» (especially in circumstances where
comparison with other states is involved), that terminology is unsatisfactory. It ignores some re-
gional claims to nationhood.
663
chris himsworth
an extent, Greater London.3 This has meant, in particular, that legislative com-
petence in respect of local government in Scotland has almost entirely passed
to the Scottish Parliament4 and executive competence has passed to the Scottish
Government and to the Welsh Assembly Government.
Within this general constitutional framework, the period since the late
19th century has seen the emergence of democratic local government, struc-
tured somewhat differently in, on the one hand, England and Wales and, on
the other hand, in Scotland – initially distinguishing between rural areas
(with the principal unit, the county) and urban areas (cities, boroughs
(burghs)). During the twentieth century, there were significant reorganisa-
tions of local government, producing the patterns of local authorities de-
scribed below. In comparative European terms, the United Kingdom may be
grouped with those other northern/Scandinavian countries in having local
authorities with relatively large populations5 and with a relatively large
range of competences.
The early years of the 21st century have seen UK local government having
to respond to new threats to its autonomy, especially in the light of the global
financial crisis and changing conceptions of the proper role of local govern-
ment vis-à-vis local service provision by other (sometimes private) means. In
the closing years of the Labour government (themselves a period of substantial
legislative activity6) the constitutional position of English local government
was substantially reviewed by the Communities and Local Government Com-
mittee of the House of Commons.7 In 2010, the incoming Conservative and
Liberal Democrat Coalition government had a commitment (for England) to
«promote the radical devolution of power and greater financial autonomy to
local government and community groups»8 and this has been given expression
in the substantial Localism Bill currently proceeding through the UK Parlia-
ment. After the elections to the Scottish Parliament and the National Assembly
for Wales in May 2011, new local government initiatives are to take place in
those parts of the country.
3
Deriving from the Scotland Act 1998, the Government of Wales Act 1998, the Northern
Ireland Act 1998 and the Greater London Authority Act 1999. Northern Ireland will be largely
excluded from this study, in part because devolution under the 1998 Act has not yet been fully
implemented. Northern Ireland is also excluded from the coverage of the European Charter of
Local Self-Government (the «Local Charter»), by the device of excluding its councils by a dec-
laration made under Article 13. See below.
4
The same position may follow soon in Wales if the National Assembly for Wales is given
primary legislative competences under the Government of Wales Act 2006.
5
Recent CEMR statistics show the average population of UK local authorities as over
151,000, compared with an EU average of 5,500.
6
See eg the Local Government and Public Involvement in Health Act 2007 (the «2007 Act»)
and the Local Democracy, Economic Development and Construction Act 2009 (the «2009 Act»).
7
The Balance of Power: Central and Local Government HC 33 (2008-09).
8
The Coalition: our programme for government (2010).
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local government in the united kingdom
9
Parish councils in England (and community councils in Wales) have retained very minor
local functions – but not as «principal local authorities». In Scotland, community councils have
only a consultative function.
10
There are 26 local councils in Northern Ireland. There was a recent (but unimplemented)
proposal to reduce the number of authorities to 11.
11
See below.
665
chris himsworth
are «unitary» all-purpose authorities which have been formed12 through the
merger of authorities in previously two-tier areas. There are 55 such unitary
authorities. And, thirdly, there are other non-metropolitan areas where two-tier
government has been retained.13 There are altogether 27 such upper-tier «shire
county» local authorities and, within their areas, a total of 201 lower-tier dis-
trict councils. It will be evident that, London and the metropolitan areas apart,
there are, as in Scotland and Wales, no clear differentiations between urban and
rural areas – plainly the unitary authorities and the district councils may include
both – although the shire county upper-tier authorities may have a predomi-
nantly rural character.
12
In many cases, under procedures laid down by the 2007 Act.
13
In some cases, the two-tier arrangements were protected by the Local Government Act
2010.
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local government in the united kingdom
tion. The functions of local authorities are specified in detailed Acts of Parlia-
ment (and, in some measure, in delegated legislation made by ministers under
those Acts) related to different areas of activity. Thus, the Education Act
1996, the Town and Country Planning Act 1990, the Local Authority Social
Services Act 1970, the Highways Act 1980 (all as much amended), along
with many others, make provision in their own sectors. The principal finan-
cial legislation is to be found in the Local Government Finance Acts 1988 and
1992 (as amended), although the core local authority borrowing powers are,
for instance, to be found in the s 111 of the 1972 Act. The power to make
delegated legislation (including, for instance, the power to make annual fi-
nancial grants to local authorities) which, for England, is in the hands of UK
ministers, has, since 1999, been the responsibility of the Welsh Assembly
Government.
Within the English system of local government, the London area has always
been treated rather specially.14 For the most part, the general local government
legislation has applied but the structure of local authorities has been different.
From 1889 to 1965, the London County Council was the principal local author-
ity. From 1965, however, London joined certain other large metropolitan areas
of England by having a modified form of two-tier government. The Greater
London Council exercised strategic responsibilities whilst the London Bor-
oughs provided most services.
In addition the Inner London Education Authority was a joint education
authority for the 12 inner boroughs until 1990. The GLC, along with the other
metropolitan councils, was, however, abolished in 1986 but a special form of
government for London was once again created under the Greater London Au-
thority Act 1999, with a structure, this time, unique to the capital with a di-
rectly elected council and also a directly elected mayor) undertaking strategic
decision-making for the capital, and the 33 London Boroughs discharging other
local government functions.
In Scotland, the whole of legislative competence for local government has
passed to the Scottish Parliament under the Scotland Act 1998. Thus, the Local
Government Scotland Act 1973 (the «1973 Act») which was passed by the UK
Parliament survives as the principal statute along with the Local Government
etc (Scotland) Act 1994 but these have been amended by the Scottish Parlia-
ment in, for instance, the Scottish Local Government (Elections) Act 2009.
Equally the Scottish provisions in the Local Government Finance Act 1992 are
still largely operational.15 In the functional sectors many UK Acts have been
amended and/or replaced by Acts of the Scottish Parliament.
14
Even more special is the continuing existence of the tiny («square mile») «City of Lon-
don» area with its City of London Corporation (including an elected Court of Common Council).
The Corporation does undertake very limited functions within its area.
15
But amended by eg the Debt Arrangement and Attachment (Scotland) Act 2002.
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chris himsworth
Thus, all the Charter’s substantive provisions are binding on the United
Kingdom. On the other hand, the United Kingdom has used Article 13 to re-
strict the range of authorities covered by the Charter to local authorities in Eng-
land, Wales and Scotland. It has no application to «regional» authorities such
as the Scottish Parliament, the National Assembly for Wales or the Greater
London Authority. Perhaps of greater significance, the United Kingdom’s stip-
ulation under Article 13 excludes local councils in Northern Ireland.19 Thus, the
Charter does not apply to a significant element of the United Kingdom’s terri-
tory – a phenomenon perhaps unique across Europe?
16
The United Kingdom has also signed but not yet ratified the Additional Protocol on the
Right to Participate in the Affairs of a Local Authority.
17
Explanatory Memorandum on a Council of Europe Convention on Local Self-govern-
ment, Cm 3884 (1998). The United Kingdom was the subject of a monitoring investigation at the
time of signature and ratification – resulting in Congress Recommendation 49 (1998) which
made a number of criticisms of, inter alia, central powers to restrict local spending, intrusion into
local authority affairs on grounds of securing «best value», and the weak status of the Charter in
UK law.
18
Ibid. paras 8,10.
19
Also the Council of the City of London. See note 00 above.
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local government in the united kingdom
It was argued that the preparatory steps taken by the minister towards reor-
ganisation created a blight over the workings of the councils affected. Along
with the local authority’s other arguments, however, the Charter argument was
rejected at both levels.21 The courts were clear that the Charter was not a part of
domestic law but might be used as an aid to statutory construction or perhaps as
a guide to common law development.22 However, at first instance, Underhill J
thought the question of whether the minister’s procedures under challenge «un-
dermined» the local authorities was «too vague to be justiciable». In the Court
of Appeal, Carnwath LJ found it unclear which legal rule could be better inter-
preted by use of the Charter. «At most, perhaps», he said, «the Charter empha-
sises the need for central government to tread warily in this area, with due re-
spect for the democratic role of local government. But I would regard that as a
principle already embedded in the common law».23
20
R (Shrewsbury and Atcham Borough Council) v Secretary of State for Communities and
Local Government [2007] EWHC 229 Admin (Administrative Court) and [2008] 3 All ER 548
(Court of Appeal).
21
[2007] EWHC 2279 para 26; [2008] 3 All ER 548.
22
The Court of Appeal cited Derbyshire CC v Times Newspapers Ltd [ 1993] AC 534 at 551.
23
Citing Secretary of State for Education and Science v Tameside MB [1977] AC 1014 at
1047-1048.
669
chris himsworth
ticular, the prospects for «incorporating» the Charter have been considered. Its
report is awaited with much interest.
Often expressed as a means of respecting the «ultra vires» rule, local au-
thorities in the United Kingdom, in common with other statutorily created bod-
ies, must have statutory authority (ie the authority of an Act of Parliament24) for
everything they do. This is a manifestation of the UK version of the «rule of
law» – public bodies may do only those things which they are legally author-
ized to do. If they act in breach of this rule, they may be subject to legal action,
sometimes in the form of proceedings to prevent unlawful expenditure on the
unlawful project. There is no general assumption that local authorities may,
simply in their capacity as such, undertake «local» projects. For everything
they do, local authorities must be able to point to the requisite authority in the
statute and, although some statutory powers and duties may be expressed in
rather general terms, the tradition is for Parliament normally to confer such
powers and duties with a high degree of specificity.
Two qualifying remarks should be made. In the first place, statutory powers
do not always have to be conferred in express terms. Sometimes powers may be
implied from the text of other provisions – a position strengthened by statutory
provisions which enable local authorities «to do anything (whether or not in-
volving the expenditure or disposal of money or the acquisition or disposal of
any property or rights) which is calculated to facilitate, or is conducive or inci-
dental to, the discharge of any of their functions».25
The second point is that, although the need for statutory powers does mean
that no inherent power of «general competence» can be presumed, steps have
been taken to confer a statute-based equivalent. There have been two stages.
The first, of long standing, was the power of local authorities to incur expendi-
ture up to a (small) statutorily-defined maximum amount on anything «which
in their opinion is in the interests of and will bring direct benefit to, their area
or any part of it or all or some of its inhabitants».26 This has been accompanied
by more recent powers «to promote well-being»– the promotion or improve-
ment of the economic, social and environmental well-being of their area.27 And
now, most recently, for England, a new «general power of competence» is be-
ing conferred «to do anything that individuals generally may do».28
24
Which includes an Act of the Scottish Parliament.
25
1972 Act s 111; 1973 Act s 69.
26
1972 Act s 137; 1973 Act s 83.
27
Local Government Act 2000 s 2; Local Government in Scotland Act 2003 s 20.
28
Localism Bill cl 1.
670
local government in the united kingdom
As to the conferring of powers and duties on local authorities for the provi-
sion of particular services, the UK tradition is not to prescribe a «list» of subject
areas and then to flesh out that list with more specific provision but instead,
once the local authorities have been established,29 sectoral legislation is used
directly to confer powers on the authorities which it identifies.30 Thus, in prin-
ciple, in those areas with all-purpose authorities, the legislation simply identi-
fies those authorities (the Scottish and Welsh councils and, in England, the
unitary authorities and the metropolitan councils) and then confers all powers
upon them. In those parts of England with a two-tier structure, the functions are
distributed between the two tiers. The upper-tier authorities deal with school
education, libraries, personal social services, strategic planning, transport and
consumer protection. The lower tier authorities are responsible for, for instance,
housing, local planning, licensing and cemeteries.
In addition to the powers to deliver specific services, local authorities are
given some more general powers, including those to recruit staff and to acquire
and manage property.31 All local authorities also have byelaw-making powers
– both general («for the good rule and government» of their area32) and in re-
spect of some specific forms of service provision.
29
See Section 2 above.
30
Of much greater significance in earlier times is the power given to local authorities to
promote their own Bills in Parliament (known as «private legislation») in which new powers may
be conferred, over and above powers conferred by general legislation, on an individual local
authority. Special parliamentary procedures apply.
31
Derived initially from the 1972 Act ss 112,120; and the 1973 Act ss 64, 70. See also Sec-
tions 6 and 8 below.
32
1972 Act s 235; 1973 Act s 201.
33
Boundaries are subject to review by independent local boundary commissions for Eng-
land, Scotland, Wales.
671
chris himsworth
34
Part 2 of the 2007 Act provided mechanisms for councils to change to all-council elec-
tions.
35
As amended by the 2007 Act.
36
There was also the possibility of arrangements prescribed by the minister.
672
local government in the united kingdom
model scarcely used). For the adoption of either (a) or (c), a local referendum
was required. The Act provided for the delegation to executives of most func-
tions of the authority and also required the appointment of «overview and scru-
tiny» committees in all authorities. Also required was the preparation of a «con-
stitution».
The period of experimentation with «executive arrangements» has not been
a resounding success – a position now reflected in the terms of the Localism Bill
of the current UK coalition government. This would, inter alia, explicitly permit
(for England) a reversion to the «committee system» form of governance.
The Local Government Acts make much detailed provision about the trans-
action of business by councils and their committees. One important element of
that provision is that made for all (subject to limited exceptions) meetings to be
open to the public and for relevant documents also to be publicly available.37 In
addition, all local authorities are made subject to the Freedom of Information
Acts which require all public authorities to give access to members of the pub-
lic to information held by them.38
Because the United Kingdom has been a member of the family of countries
with relatively large and relatively powerful local authorities, inter-authority
co-operation has not been a widespread feature of the local government system.
Three observations should, however, be made. First, statutory powers for ena-
bling co-operation are nevertheless in place. In addition to powers to delegate
functions to committees, sub-committees and officers of their own authority,
councils are empowered to arrange for the discharge of their functions by an-
other local authority.39 And they may also establish joint committees.40 This is
sometimes done, for instance, for the provision of combined services in urban
areas. Quite separately, English local authorities are obliged to consult partner
authorities (and others) in the preparation of a local area agreement.41 Secondly,
ministers have certain powers compulsorily to establish joint boards which then
discharge the functions of the two or more local authorities included within the
arrangements. Current examples of these are the joint police boards (also fire
and rescue boards) established in many parts of the country. Thirdly, a more
recent, and quite separate, development has been the emergence, as a result of
financial pressures, of a willingness on the part of some local authorities to
share the services of certain of their administrative offices.
The opportunities available for local authorities to co-operate across the
board for purposes to their mutual advantage are reflected in the strong local
authority associations. These are organised on a «regional» basis to produce the
37
1972 Act Pt VA; 1973 Act Pt IIIA.
38
Freedom of Information Act 2000; Freedom of Information (Scotland) Act 2002.
39
1972 Act s 101; 1973 Act s 56.
40
1972 Act s 102; 1973 Act s 57.
41
2007 Act Pt 5.
673
chris himsworth
The United Kingdom is one of those countries which creates no special legal
class or category of local authority employees. Local authority employees are
never referred to as «civil servants»– language which is confined to employees
of the state/central government, including employees of the devolved govern-
ments in Scotland, Wales and Northern Ireland. Nor is there a separate «local
government service» organised at the state (or regional) level. Instead local
authorities are given the statutory power to employ staff42 and then individual
local authorities, in principle, simply recruit staff and determine their pay and
conditions in the manner of private employers. Their employment relationships
are, again in principle, subject to the normal rules of employment law.
This general position has to be read subject to certain qualifications:
(a) In the first place, local authorities do tend to act collectively through bod-
ies related to the local government associations in the negotiation of sal-
ary scales and the general terms and conditions of service of employees.
(b) In some areas of local authority activity, there has been central or de-
volved government guidance on required staffing levels eg to achieve
prescribed school class sizes.
(c) Although this is (again) a declining feature of UK local government,
certain senior officials are statutorily required to be appointed to all lo-
cal authorities. All authorities are, for instance, required to appoint a
chief executive (head of paid service), a (chief) financial officer, a mon-
itoring officer (with a duty to advise councillors on the legality of pro-
posed actions), and a director of social services/social work.
(d) Although officers appointed under (c) are statutorily required, they are
recruited wholly without central government involvement. On the other
hand, the appointment of chief constables by police authorities does
also involve central or devolved government in that their appointment
is, in effect, subject to central consent.
(e) An important additional point to be made about local authority officials
is that, as noted in Section 5 above, with the exception of certain catego-
42
1972 Act s 112; 1973 Act s 64.
674
local government in the united kingdom
The question of the funding arrangements for local government has, for many
years, been one of the most bitterly contested issues affecting local authorities in
the United Kingdom. In particular, the form that locally derived revenues should
take, together with the balance to be maintained between those revenues and
income in the form of central (including regional) grants have been contentious.
The question of overall levels of funding for local authorities has also been a
matter of dispute, as well as the extent to which the central government should
have the power to impose constraints on those funding levels. These are issues
which are made far more contentious because of the relatively extensive (and
expensive) functions conferred, in comparative European terms, on local au-
thorities. Such functions demand funding levels (from whatever source) which
constitute a significant proportion of overall public sector funding.
Local authorities in the United Kingdom are funded, in the main, from two
principal sources. The first (though not nowadays the most important in terms
of volume) is the locally determined council tax.
A brief historical note is, however, required. During the whole of the modern
period up to the late 1980s, the principal tax available to local authorities of all
types was the rate. This was a property tax levied at a locally determined percent-
age on a notional annual rental value of properties in the area of each authority. All
properties – whether domestic, commercial or industrial – were subject to a system
of property valuation which provided the basis on which the annual rate would be
levied. Although the rate had many real advantages as a source of local authority
income – especially its stability and its relative ease of collection and enforcement
– it also became, in the 1970s and 1980s, an unpopular tax. Based on property
values, it was insufficiently responsive to the actual incomes of domestic ratepay-
ers. The revaluation of properties came to be delayed because of the unpopular
consequences of raising values and, almost inevitably, levels of tax. Various alter-
natives were considered,45 including forms of local income tax, but these possi-
bilities suddenly gave way to the introduction, under Mrs Thatcher’s premiership,
of the community charge or, as it was popularly styled, the «poll tax».
43
1972 Act s 101 ; 1973 Act s 56.
44
Local Government and Housing Act 1989.
45
See eg the (Layfield) Report on Local Government Finance (1976).
675
chris himsworth
Alongside their income from the council tax (and very small amounts of
income which derive from locally imposed charges), local authorities also ob-
tain revenue from the continuing non-domestic rates and (very importantly, in
volume terms) from central grants (whether from the UK government for Eng-
land, or from the Scottish or Welsh government). Certain grants (eg especially
for police functions) are specific and «earmarked» but most of grant income is
in the form of a general grant (known as the revenue support grant) whose size
is calculated according to statutory formulae which take into account an author-
ity’s population but then with adjustments to allow for other indicators of rela-
tive need as well as levels of estimated revenue resources – principally income
from the council tax.
Two further aspects of the overall scheme are important. Firstly, in recent
years, non-domestic rate levels have been fixed (in the interests of «fairness» to
businesses) not by individual local authorities but by the relevant central or re-
gional government. That block of income has ceased to be «own income» in
Charter terms. Secondly the result of such a low proportion of local authority
income deriving from the council tax makes the creative use of the fixing of its
levels illusory – a position which has been hardened still further in Scotland.
There, a Concordat between the Scottish government and the local authorities
provides for a council tax «freeze» in return for certain increased spending flex-
ibilities. All Scottish local authorities have accepted the terms of the Concordat
and, in relation to them, it may fairly be said that, since virtually all of their
income derives from government grant, non-domestic rates (at a level fixed by
46
Local Government Finance Act 1992.
676
local government in the united kingdom
government) and the council tax (frozen by agreement with the government),
they have almost no remaining autonomous fiscal capacity.47
The quest for further reform continues. There have been substantial reviews
– in England,48 and in Scotland.49 In 2008, the Scottish government briefly pro-
posed the introduction of a form of local income tax (although at a single cen-
trally-prescribed rate).50 But, whilst the search for a replacement for the council
tax goes on throughout Great Britain, a lead proposal from the local govern-
ment side has been that non-domestic rates should be «repatriated» to the local
authorities, thus restoring a significant element of local decision-making.
For the most part, the capital projects of local authorities are funded by bor-
rowing rather than out of revenue funding, One primary source of borrowed
funds is a public body known as the Public Works Loans Board. In addition,
local authorities have, in recent years, sought to fund capital projects in partner-
ship with private bodies.
Just as in the case of human resources and the application in that sector of
normal employment law principles, the starting point in relation to the holding
and management of property and other assets is the initial statutory power and
then the application of private law principles. There is, in the United Kingdom,
no special category of «public property law».
Thus local authorities are empowered to acquire land.51 And this power is
used to acquire property (including land and buildings for administrative
purposes or for the purposes of specific services such as the provision of
schools and roads) and other assets such as road vehicles and necessary ma-
terials. Acquisitions are, as relevant, subject to the EU procurement and
competition rules.
Two other forms of special regulation apply:
(a) In the first place, local authorities have powers, subject to ministerial
consent, to acquire property compulsorily.52 There is a system of (mar-
ket value) compensation which applies, subject to appeal procedures.
47
It should also be noted that, in addition to these «voluntary» forms of restraint, there are
ministerial powers in both Scotland and in England and Wales to «cap» local expenditure thought
by ministers to be excessive. See Local Government Finance Act 1992 s 94(2) and Sched 7 and
s 52B.
48
The Lyons Inquiry into Local Government (2007).
49
Report on Local Taxation in Scotland (Burt) (2006).
50
A Fairer Local Tax for Scotland (2008).
51
1972 Act s 120; 1973 Act s 70.
52
1972 Act s 121; 1973 Act s 71.
677
chris himsworth
The courts may become involved in the review of local authority decision-
making in, broadly, two different ways. The first is that, in certain circum-
stances, a statute may make direct provision for an appeal to a court against a
local authority decision. This is a less common feature of the modern statute
book but is retained in limited areas – such as licensing, school choice and child
protection decision-making.
Much more prominent is the exercise by the courts (in England and Wales, the
Administrative Court as a part of the High Court and, in Scotland, the Court of
Session) of their inherent (ie not statute-derived) power of judicial review. Local
authorities (along with other public bodies) are subject to this supervisory jurisdic-
tion of the courts. The detailed rules are complex but, in principle, any person with
locus standi may challenge the validity of a local authority act or decision on the
grounds that, in one respect or another, that act or decision was ultra vires. Such a
challenge might, for instance, be brought by an individual directly affected or by a
minister or indeed by another local authority. The grounds for review may be sub-
stantive (that the local authority has no power to do what it has purported to do) or
they may be based on procedural error (including breach of the rules of natural
justice) or on grounds of irrationality. Of very great importance since the imple-
mentation (in 2000) of the Human Rights Act 1998 has been the possibility of
using a breach of Convention (ECHR) rights as the basis of challenge.
53
1972 Act s 123.
678
local government in the united kingdom
In the modern era, the external audit of local authorities by auditors report-
ing (via, in England and Wales, the Audit Commission54 and, in Scotland, the
Accounts Commission) to ministers has been a form of supervision of great
importance. Audit has had three principal purposes. The first is to maintain
propriety in the accounting processes of local authorities. The second has been
(sometimes on the application of an affected individual) to investigate and
report on (with the possibility of final adjudication by a court) the validity of
a local authority act or decision with spending consequences. Historically, this
has been a mechanism not only for the supervision of the lawfulness of local
authority activity but also for the holding to account (and personal charging)
of individuals within a local authority in respect of unlawful expenditure for
which they were responsible. And, thirdly, there has, in recent years, been
bolted on to these more long-standing aspects a responsibility on auditors (and
the Commissions) to report on the achievement of «best value» objectives by
local authorities. In England there was a system of overall monitoring under
the banner of «Comprehensive Performance Assessment» and, from 2009,
«Comprehensive Area Assessment». The new coalition government has since
announced its abolition.
Ombudsmen are a relative newcomer to the British scene, with the arrival
(under the Parliamentary Commissioner Act 1967) of the Parliamentary Om-
budsman with a responsibility to investigate complaints from individuals of «in-
justice in consequence of maladministration» caused by the actions of ministers
and central departments. There quickly followed (in 1974 for England and Wales
and 1975 for Scotland) the creation of local ombudsmen with a similar remit in
respect of local authority acts and decisions and these ombudsman have had an
important role to play – sometimes in relation to major local authority decisions
and sometimes on very minor issues. Recently, there have been two principal
reforming developments. The first has been an expansion of the remit of om-
budsmen – in particular, to include a duty to scrutinise «service failure» in addi-
tion to maladministration and to enable them, in certain circumstances, to initi-
ate investigations themselves. And secondly, there has been some structural
54
Currently under threat of abolition.
679
chris himsworth
The fact that there has not been, in the United Kingdom, any comprehensive
system of central supervision or control of local authorities in the form of the
scrutiny of all their acts and the decisions (whether in advance of decision-
making or thereafter) does not mean that the UK central departments have had
no interest in (or power to intervene in) local authority decision-making. The
opposite has been true. UK local authorities have been given substantial re-
sponsibilities but, at the same time, this has meant that ministers, who retain an
overarching responsibility for sectors such as school education, social services
and transport, inevitably wish to retain some ability to steer the activities of the
local authorities to whom much formal responsibilities have been transferred.
This has led to forms of overlap and sharing of responsibilities – often de-
scribed, especially by ministers, as a form of «partnership».
It has, however, been an unequal partnership since ministers inevitably start
from a position of privileged access to the parliamentary process. It is within
their power to propose reforming legislation affecting the structures and re-
sponsibilities of local authorities. Then, within that statutory framework laid
down on their behalf by Parliament, the legislation gives ministers additional
powers to intervene in local authority business. The principal powers are:
(i) To make subordinate legislation (regulations etc.) determining the de-
tailed content of local authority powers and procedures.
(ii) In large measure, to determine the funding levels of local authorities.55
(iii) To consent (or not) to many forms of local authority decision-mak-
ing.56
(iv) To reconsider on appeal by affected individuals certain local authority
decisions, most prominently, planning decisions on applications to de-
velop land.
(v) To inspect the provision of a certain services – often through an arm’s
length intermediary (such as, in England, in relation to schools and
social services, Ofsted) – which is linked to more general powers to
request information from local authorities on their service provision.
55
See Section 7 above.
56
See eg byelaw approval and approval of compulsory purchase. See Sections 4 and 8 above.
680
local government in the united kingdom
(vi) In the last resort (a power rarely used), to investigate and report on the
failure of a local authority to perform its statutory duties and to require
action.
Although «protection» is the language of, inter alia, Article 10 of the Char-
ter, it is not familiar terminology in UK practice. On the other hand, what is
certainly familiar is the opportunity for a local authority, which feels that its
interests have been damaged or are threatened, to be able to bring an action in
the courts to protect those interests. The power to commence (and defend) legal
proceedings is statutorily conferred57 and may be used, for instance, against
ministers (eg to challenge an unfavourable distribution of funds or other hostile
measure) or against another local authority; to seek to restrain the activities of
an auditor or ombudsman.
Although some such actions may certainly have a «constitutional» aspect to
them, they do not, in the absence of a written constitution and a constitutional
court, have the same character as «constitutional protection» familiar in many
other countries.
57
1972 Act s 222; 1973 Act s 189.
681
chris himsworth
Books
Encyclopedia of Local Government Law (5 Vols).
Himsworth, C.: Local Government Law in Scotland (1995).
McFadden, J.: Local Government Law in Scotland (2008).
Journals
Local Government Studies (six issues per year).
682
local government in the united kingdom
683
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