Local Competence

Local Competence in Europe

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

Local Power, Function and “Compétence” Definitions

The ambiguity of the French noun compétence (and its many European equivalents) is evident from the manner in which the word is used. It is frequently used, for instance, to designate a power (when reference is made to legislative power, for example), but also to designate the subject matter to which that power applies (as in Article 72 (3) of the French Constitution in the revised version of 28 March 2003, which states that local and regional authorities “shall have regulatory power to exercise their functions”), or to designate authority to act (as in Article 72 (1): submission through a petition to the council of a local or regional authority of a “matter within its powers”). In the United Kingdom, the legislation always refers to “function”, “power” and “duty”, and indicates the subject matter to which this power applies (Local Government Act 2000); it does not feature the widely-used terms “responsibility” and “competence”. “Function” always refers to a given matter, while “duty” indicates an obligation and “power” a faculty. “Function” is consequently a general concept and denotes a matter that can be dealt with either by a “power” or by a “duty”. It is therefore the term “power” that is somewhat ambiguous, depending on the context in which it is used. The plural “powers” is similar in meaning to the French compétences and denotes a power combined with its subject matter.

The concepts are still harder to understand because international English has imported words, often of American origin, which do not have a precise meaning in English, particularly when it comes to describing British local government institutions. Examples include “competence” and “competencies”, which tend to denote capacities; “mandatory task”, which is used to mean mandatory functions, termed “duty” in English; and “responsibility”, often used in the international literature to denote functions. In this report I shall try to keep to the British terminology.

Other countries use clearer terminology. Germany’s Basic Law, for instance, distinguishes between power (Befugnis), function (Zuständigkeit) and the subject matter of the function (Gegenstand) in those articles which relate to legislation (Articles 70 to 73). This clarification is misleading, however, for where matters of direct interest to us are concerned, local authorities may only deal with “local authority business” (Angelegenheiten der örtlichen Gemeinschaft) (Art.28.2) and the “tasks” (Aufgaben) of independent local government (under the constitutions or legislation of the Länder).

The same terminology appears in the 1997 Polish Constitution, which refers to local authorities’ “tasks” (zadania) (Arts. 163 and 166, inter alia); the word “competence” (kompetenzja) does, however, appear, when it is stated that “conflicts of competence” (spory kompetencyjne) between independent local government bodies and government authorities are to be decided by the administrative courts (Art.166.3). Spanish legislation, in contrast, reserves the term competencias for matters within the responsibility of the local authority (Law No. 7/1985, Arts.25 and 26), and makes a clear distinction between such functions and “prerogatives” (potestades) (Art.4). The new text of Part V of the Italian Constitution in the revised version of 18 October 2001 uses the terms “functions” and “powers”, whereas the previous text had referred only to “functions”. Where the old text had referred to a legislative function, the new one uses the term “legislative power” (Art.117). Concerning local authorities, the new Article 118 makes a definite but obscure distinction between “functions” and “powers”: “I Comuni, le Province e le Città metropolitane sono titolari di funzioni amministrative proprie e di quelle conferite con legge statale o regionale, secondo le rispettive competenze” (para. 2). This wording suggests that “functions” are the content or subject matter of powers.

Lastly, in the French version of the European Charter of Local Self-Government, the word compétence takes on two meanings: one is that of function, or functional area of responsibility (Art.4.1: “les compétences de base des collectivités locales …”), while the other is that of capacity (Art.4.2: “toute question qui n’est pas exclue de leur compétence”). It is even used to mean both at once, given that the English version refers in Article 4.1 to “the basic powers and responsibilities of local authorities…”. The concept of responsabilité publiqu” (Art. 4.3) also appears to cover powers and their object. But where the English version uses “powers” in Article 4.4 – “powers given to local authorities shall normally be full and exclusive”, the French version uses the word compétences. In Article 4.5 the English version also uses the word “powers” – “where powers are delegated to them by a central or regional authority …” – but here the French version refers to délégation de pouvoirs. The same ambiguity is apparent in Article 9: where the French version refers to “compétences” in Article 9.1 and 9.2, the English version refers to “powers” and “responsibilities” respectively; in Article 9.4, compétence in the French version is rendered as “tasks” in the English version. These wordings suggest that the word “power” in the English version is not simply used in the sense of the French word pouvoir, but, in Article 4.4 and 4.5, in a broader sense, as the French word compétence sometimes is.

What conclusions may be drawn from this brief overview of the terms used in different countries and in the Charter? Two things are clear: firstly, it is preferable to distinguish between the French words pouvoir (power) and compétence (powers or function), as the former implies authority to act as derived from the constitution and legislation, while the latter refers to the subject matter to which this authority is applied (in which case it can also be termed “function” in English) and/or the framework for action in which this authority is exercised (in which case it can also be termed “competence” in English, as in Art.4.2 of the Charter). Secondly, the English word “functions” (compétences) is used to designate things or matters subject to this power to act, while the word “power” (compétence) is used in the singular or plural to give a general idea of its legal scope, to reflect the limits within which the authority holding this power is entitled to act.

“Powers” (as in Art.4.4 and 4.5 of the Charter) and “functions”, respectively reflecting the two meanings of the French word compétence(s), will serve here as the basis for our comparison. They express the link between different elements of local self-government. Power (compétence) is the legal authority (authorisation) enabling a person recognised by public law to act with a specific purpose or on a specific subject (function) using the legal and other means derived from the law.

General nature of Local Competence

In the United Kingdom, where the doctrine of ultra vires is applied to local authority acts (meaning that councils can only do what they are expressly empowered to do by law), section 2 of the Local Government Act 2000 (and its counterpart in Scottish law) now grants local authorities general power to promote the economic, social and environmental well-being of their area. The restrictions in section 3 of this act are comparable to those found in countries whose law expressly includes a general competence clause, but local authorities are not allowed to borrow in order to exercise this freedom. However, this last restriction seems to have been eased by the Local Government Act 2003, which allows local authorities to borrow freely for their capital expenditure on any functions conferred on them by law (sections 1-3 and section 12 in particular), subject to compliance with prudential rules.

In terms of positive law, the issue is still under discussion in some countries. In Portugal neither the Constitution nor the latest legislation, deriving from the reform of local government powers in 1999, include an identifiable principle of general municipal competence. It might be possible to infer it from the wording of section 53 (l, q) of Law 169/99, taken from a previous law, but there is no case-law to that effect. In Spain, the white paper published in early 2005 with a view to reforming local government considers that the wording currently used in the 1985 Law on the Basic Principles of Local Government does not give sufficiently clear expression to the general competence clause.3 The new preliminary draft law on the basic principles of local self-government includes a section expressly granting general competence to municipalities (section 21).4 In Italy, if the new Article 118 of the Constitution, which concerns the municipalities’ “own administrative functions”, were interpreted in terms of the “basic functions” established by national legislation,5 according to Article 117, this would call into question the general competence clause established in Italian law since Law 142/1990. Lastly, there are some exceptions in central and Eastern Europe.6

At intermediate level, the situation varies more. In some countries (such as France and Sweden), the general competence clause benefits all local authorities, which does not preclude specialised functions, since it is of a residual nature. Local authorities at the intermediate level in other countries exercise only those powers attributed to them by law or delegated to them by municipalities (examples being Germany, Spain, Hungary and Poland). In Germany, the legislation of the Länder usually defines the powers of counties (Kreise) in greater detail than does Article 28 of the Basic Law.


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