Local Authority in Europe

Based in the “Local authority competences in Europe. Study of the European Committee on Local and Regional Democracy (2007)”

Introduction

In Europe, some countries have experienced territorial reform (for example, Germany, the Netherlands, the United Kingdom and Sweden) and some other countries have large local authorities (like the Netherlands, Portugal, the United Kingdom and Sweden). Local authorities in all countries exercise a specific, subordinate regulatory power for the purpose of exercising their functions. In all countries the state authorities, or regional authorities in federal states and countries with autonomous regions, have field departments, which are nevertheless not always placed under a single authority in charge of most of them. Local authorities are normally free to organise their administration and choose their method for managing the public services within their remit which must be provided to the population, but there are exceptions. The situations in the various countries diverge most markedly with regard to fiscal power, but against the background of a common trend: the erosion of local authorities’ fiscal power, some exceptions being Italy and Sweden. However, Spain, France, Italy and Sweden are distinguished by the fact that more than 30% of municipalities’ budgetary resources derive from own local taxation. Lastly, contractual relations between public authorities with a view to organising co-operation or co-ordinating their activities are becoming rather more widespread in European countries.

Features common to the Local Authorities in European countries

Notwithstanding the great variety of forms taken by the municipal institution, there are several common features crucial to our analysis of the system of powers and functions, irrespective of the nature of the state (unitary, federal or comprising autonomous regions):1) The principle of local self-government is recognised by the constitution or the law; 2) The general nature of local competence (compétence) is recognised; 3) Functions (compétences) are laid down in law; 4) Local authorities have a regulatory power for the exercise of their functions; 5) Their power to levy certain taxes is always recognised; 6) There is always supervision; 7) There are always procedures safeguarding local self-government.

Local Functions

The substance of local functions thus derives from general legislation on local authorities and from numerous sectoral laws which regulate the substance of local functions in the relevant sectoral law areas. As this sectoral legislation may be restrictive, efforts have sometimes been made to protect local functions from such interference. In Hungary, for example, Law No.LXV (amended) of 1990 on Local Authorities defines the fields of local functions and, according to the Constitution, this law can be amended only by a two-thirds majority. In Russia, the Law of 6 October 2003 on Local Self-Government stipulates that the functions of the local authorities which it sets up (sections 13 to 15) can be amended only by an explicit amendment of this law itself, although this is only an ordinary legislative provision. The Spanish government’s January 2005 white paper on reform of the basic system of local self-government is intended to protect municipal functions from interference by regional or national sectoral laws which might adversely affect them (see the above-mentioned preliminary draft law, section 28.d).

Local Authorities: regulatory power for the exercise of functions

In Spain, the standard-setting power of local authorities, which stems from section 4 of the General Law on Local Authorities, but is also a legal consequence of the autonomy principle enshrined in Article 137 of the Constitution, is described as a regulatory power. This regulatory power is exercised in pursuance of national or regional legislation, but is also used to regulate the functioning or use of local infrastructure and public services, or in the context of the authorities’ general competence, insofar as this does not impinge on the powers of other administrative authorities.

In hierarchical terms, local regulations rank below regulations enacted by national or regional authorities as part of their own responsibilities. A different case is that of what are called implementing regulations, which relate to the local authority’s own organisation, and which are directly subordinate to general law and, possibly, to regional law on local authorities. Other standard-setting instruments are of merely supplementary value in this field. The preliminary draft law does not introduce any changes in this respect.

The position is similar in Italy. Statuti are comparable to Spanish local authorities’ implementing regulations, whereas regolamenti are the expression of a local regulatory power which might be described as “ordinary”. While the 2001 revision of the Constitution brought great changes in the legal relations between central and regional government, it is not certain that the effect was the same where local authorities proper are concerned. They, like the regions, hold power to draw up their own constitutions (Art.114 (2)), but local authorities have this power under national legislation, since legislation on local government and the basic functions of municipalities, provinces and “metropolitan cities” is exclusively a central government responsibility (Art.117 p). The new Article 117 gives them regulatory power with respect to the “organisation and the fulfilment of the functions assigned to them”, but in paragraph 6 which assigns regulatory power to the state in matters for which it holds sole legislative power and to the regions in all other matters. The concept of “function” is distinct from that of “matters”, in which legislative power and regulatory power are shared solely between the state and the regions, and refers to the “administrative functions” which are in principle exercised by the municipalities, unless the need for “unitary” exercise confers them on a higher authority (Art.118). Local is consequently subordinate to regional regulatory power, although the La Loggia Law (131/2003) specifies that the intervention of national or regional regulatory power in administrative functions assigned to local authorities must merely meet “the basic requirements of uniformity” (Section 4.4).

The Constitutional Court has already held that the new Article 114 does not establish full equivalence (equiparazione) between the authorities that it lists, and particularly between the state and the regions (judgment 274/2003, 24 July, reason 2.1 in fine, on a Sardinian regional law on the civil service).8 Nor does it establish full equivalence between the regions and local authorities in terms of regulatory power.

In Portugal as well, local standard-setting power is in principle exercised by the deliberating bodies of municipalities, but also of their member parishes (freguesias), within the limits of their functions. As in France, there seem to be no special arrangements for rules of procedure.

The main difference, as compared with the regulatory power of French local authorities, or at least of municipalities and départements, as laid down in the new Article 72 of the Constitution (revised version of 28 March 2003), but in practice in existence long before, is the fact that it is exercised mostly by the mayor, through mayoral orders, as part of his or her own powers, and not by the municipality as such. The exceptions are local regulations issued under a precisely defined system, such as local urban development plans or département-based welfare regulations.

In Germany, local regulatory power is exercised through Satzungen. This power, like the legal term applied to it, dates from long ago, very probably from the 1808 preussische Stadtordnung, well before the Basic Law existed. The Weimar Constitution recognised municipalities’ right of self-government (Selbstverwaltung) (Art. 127). This regulatory power may now be regarded as an expression of the right of self-government which municipalities have under Article 28 of the Basic Law, but it originates directly from Länder legislation on counties and municipalities.

In England, the law gives local authorities power to issue regulations known as bylaws in their functional areas of responsibility, inter alia to ensure public order and public health. Such bylaws are often based on section 235 of the 1972 Act: “for the good rule and government of the whole or any part of the district or borough and for the prevention or suppression of nuisances”. Many are also issued on the basis of specific laws. Their entry into force is subject to their being “confirmed” by the Secretary of State (ministre); the October 2006 White Paper “Strong and Prosperous Communities” (Cm 6939, § 3.14) announced that this requirement would be ended. Local councils may promote “Local Acts” in parliament in order to obtain special powers, needed when general legislation does not give them the power to take direct action themselves.

In Sweden, the situation is very similar, with the exception of this last-named type of legislation.For Swedish local authorities are covered by a general competence clause. Their local authorities (an elected council and specialised committees to carry out executive functions) resemble those in the UK.

Local Authority Supervision

All the countries also have procedures for supervising the legality of local authorities’ activities. This does not mean that there are no longer any checks on expediency (or on the merits of decisions), for these continue in certain countries, according to sectoral logic. Looking beyond the principle, however, there is a degree of heterogeneity in this field.

In Spain, Portugal, France and Hungary, legality is reviewed a posteriori, only the courts having power to declare a measure unlawful. In Germany and Poland, the administrative authority scrutinises the legality of measures adopted by local authorities, which can then appeal to the courts against the supervisory act. In Sweden and the United Kingdom, a check on expediency is made in certain fields, as well as there being an opportunity to apply to the courts (e.g. appeals concerning the application of town-planning legislation).

The constitutional revision of 2001 in Italy put an end to the review of legality which used to be carried out by a regional supervisory committee; henceforth only the administrative courts may set aside a decision, without any particular procedure being laid down for relevant applications to it. Nevertheless, Article 137 of the Consolidated Law on Local Government (Legislative Decree 267, issued in 2000) does provide for an exceptional procedure: should a local authority take a decision likely to affect the legal unity of the Republic, the government may automatically set aside that decision, a power rarely used. There are also some fields where expediency is verified, one example being regional authorities’ scrutiny of planning issues. This reform brings the situation in Italy closer to that which has long prevailed in the United Kingdom. It also remains to be seen which provisions will be adopted on the basis of section 2.4.m of Law 131, which requires the government’s legislative decrees to ensure that “administrative activity complies with the law, the local authority constitution and the regulations”.

Instituted machinery for the judicial protection of local self-government

Municipalities can apply directly or jointly to the constitutional court in Germany, Austria and Spain, and in Albania, Croatia, Hungary, the Czech Republic, Slovenia and “the former Yugoslav Republic of Macedonia” among others. In addition, in Italy, Portugal, Romania and Russia, local authorities may object to the civil or administrative courts that a measure is unconstitutional, and the constitutional court will then rule on the issue of conformity to the constitution. In France there is an indirect form of constitutional protection which involves parliamentarians referring an issue to the Constitutional Council, given that most of them are also local elected representatives owing to the practice of holding several mandates simultaneously. The most interesting examples of protection by the constitutional court appear to be Germany and Spain.

In Germany, Article 93.4b of the Basic Law provides for municipalities and groupings of municipalities (which include counties – Kreise) to apply directly to the Constitutional Court if their right to local self-government is breached by a federal law, or by a Land law if it is impossible to file a constitutional appeal with the Land constitutional court. Twelve Länder have a constitutional court but municipalities and groupings of municipalities can still refer a matter to the federal Constitutional Court if the violation of their right to local self-government is imputed to federal law. This entails abstract scrutiny of the standards in force. A constitutional appeal to protect the right to local self-government is close to a direct application to protect fundamental rights, but the right to local self-government is not regarded as a fundamental right insofar as local authorities are public authorities whose measures may also infringe the fundamental rights of individuals: that is why there is a distinctive form of protection for this right.

The constitutional revision of 28 August 2006 also expressly prohibits federal legislation from imposing tasks on municipalities and groupings of municipalities (new Art. 85.1, in fine).9

In Spain, the 1999 reform enabled local authorities to refer a matter to the Constitutional Court, but under very different conditions. The constitutional appeal introduced in Spain, although modelled on the German example, is a joint appeal; it is also a procedure involving the abstract scrutiny of the standards in force. Only the local authority directly affected by a law (whether national or regional), or one seventh of the municipalities of the area concerned representing one sixth of the population, or one half of the provinces of the territory concerned representing one half of the population, can file a constitutional appeal; in the latter cases, those filing the appeal must apply to the State Council or to the competent organ of the autonomous community to ascertain whether the relevant territorial framework to which the applicant local authorities belong is part of one or more autonomous communities (LOTC, section 75bis, para.3). The white paper (2005) considers these requirements too restrictive and proposes lowering the thresholds for appeal and allowing the association of local authorities which are most representative of the territory concerned to appeal directly to protect local self-government.

A constitutional appeal does not preclude applying to the administrative courts. In Germany, local authorities may appeal to the administrative courts against supervisory measures that they dispute. The same is true of Austria; however, if the supervisory measure concerns a regulatory measure, jurisdiction lies with the Constitutional Court. In Spain too, local authorities may apply to the administrative courts to set aside an administrative measure.

In countries where judicial protection of the right to local self-government is a matter for the administrative or civil courts (depending in particular on the country’s court system), this protection is provided under ordinary law procedures. These proceedings are conducted before the administrative courts in Belgium, France, Finland, Greece, Italy, the Netherlands, Sweden and Switzerland. They are conducted before the civil courts in Denmark, Ireland and the United Kingdom (judicial review), and also in countries such as Russia (usually the arbitration courts) and Estonia. In France as in Spain, transferring the power to set aside a local authority measure whose legality is disputed to the administrative courts, not to the higher administrative authority, amounted to introducing a safeguard for the right to local self-government.