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Strasbourg, 26 March 2009                                                                       CDLR(2009)3

                                                                                           Item 5.2.2 of the agenda

EUROPEAN COMMITTEE ON LOCAL AND REGIONAL DEMOCRACY

(CDLR)

IDENTIFICATION OF TOPICS AND ISSUES

THAT WOULD BE APPROPRIATE FOR INCLUSION

IN A POSSIBLE ADDITIONAL PROTOCOL TO THE ECLSG

Secretariat Memorandum

prepared by the

Directorate General of Democracy and Political Affairs

Directorate of Democratic Institutions


This document is public. It will not be distributed at the meeting. Please bring this copy.

Ce document est public. Il ne sera pas distribué en réunion. Prière de vous munir de cet exemplaire.


Introduction

At its meeting in December 2008, the CDLR adopted a questionnaire to member States on the identification of topics and issues that would be appropriate for inclusion in a possible additional protocol to the European Charter of Local Self-Government.

The compilation of replies appears overleaf. At least one country has indicated it intends to reply at a later stage.

It is therefore suggested that members that have not yet replied be given a further opportunity to do so and that the LR-IC Committee be instructed to prepare at its next meeting a proposal for consideration by the CDLR on whether and if so how to take this matter further.

Action required

The CDLR is invited to:

-              set a new deadline for reply by members;

-              to instruct the LR-IC to prepare at its next meeting a proposal on whether and if so how to take this matter further.


APPENDIX

RESULTS OF THE QUESTIONNAIRE ON THE

IDENTIFICATION OF TOPICS AND ISSUES THAT WOULD BE APPROPRIATE
FOR INCLUSION IN A POSSIBLE ADDITIONAL PROTOCOL
TO THE EUROPEAN CHARTER OF LOCAL SELF-GOVERNMENT

(as adopted by the CDLR at its 42nd meeting on 8-10 December 2008)

Compilation of replies (18 replies from 16 countries)

Question 1. Does your government consider there are topics and/or issues that would be appropriate for inclusion in a possible additional protocol to the European Charter of Local Self-government?

Countries having replied

YES

NO

Armenia

X

Belgium (Brussels Capital Region)

X

Belgium (Flemish Region)

X

Belgique (Walloon Region)

X

Denmark

X

Estonia

X

Finland

X

Greece

X

Hungary

X

Italy

X

Lithuania

X

Luxembourg

X

Monaco

X

Netherlands

X

Norway

X

Portugal

X

Sweden

X

Switzerland

X

United Kingdom[1]


Question 2. If so, please identify it/them and provide justification for its/their inclusion in an additional protocol.

Country

Topics and issues suggested

Belgium (Brussels Capital Region)

At present, with the developments in participation and the Recommendations on access to official documents and on electronic democracy, it does not seem necessary to include additional material in the European Charter of Local Self-Government (ECLSG).

It does, however, seem inevitable in the long term that a more general discussion should lead:

o          either to the drafting of a Charter of Local Democracy setting out not only the existing features of local self-government already covered by the ECLSG but also all aspects relating to elections, local governance, public ethics, citizen participation, respect for differences (in terms of gender, age, social background, geographical origin or language) and democracy;

o          or to the drafting of successive additional protocols covering these different topics (but with the risk of creating legal problems in the different countries).

In addition – the position of the Kingdom of Belgium, and especially the Brussels-Capital Region, has always been clear in this respect - it is necessary to find a solution acceptable to all member states that "combines" objectives concerning local authorities and regional authorities (on the basis, in particular, of the project devised by Jean-Claude Van Cauwenberghe and supported by the Congress).

Although the issue of local self-government initially took top priority, it is worth bearing in mind that the foremost priority is now to put citizens (in the broadest possible sense of the term) at the heart of local (and regional) concerns; it is not democracy that is being called into question but the way in which it operates and public confidence in the exercise of democracy.

Estonia

Estonia would like to specify some local authorities’ financial aspects that are already included in the draft of a possible additional protocol to the European Charter of Local Self-government.

Article 5

Principle of concomitant financing

1. The principle according to which local authorities, within the framework of national economic policy, are entitled to foreseeable resources commensurate with their competences and responsibilities and sufficient for the effective discharge of their competences and responsibilities shall be laid down in the constitution or in the law.

2. Revenue losses incurred by local authorities as a result of decisions by higher-level authorities to reduce or eliminate local taxes or decrease the tax base shall be offset with adequate replacement resources or with removal of responsibilities. If the reduction of tax base is sufficiently appraised before the enforcement of higher-level authorities’ decision, the compensation of revenue losses of local authorities is not compulsory.

3. Where higher-level authorities decide to confer additional responsibilities on them, local authorities shall receive transfers of adequate resources or shall be authorised to raise new resources. In the event of a transfer of responsibilities, the resources shall be at least equivalent to those which the higher-level authority allocated to the discharge of those responsibilities. The obligation to transfer adequate resources or authorise the raising of new resources shall also apply in the case of decisions to set higher minimum quality standards for the discharge of obligatory tasks, decisions to transfer responsibilities, or decisions resulting in changes in general costs such as wages and salaries, social security costs or environmental protection standards. The guarantee of adequate resources does not broaden to every local authority unit.


Greece

We fully subscribe to the initiative of the CDLR to draft an additional Protocol that would reflect the spirit of the Valencia declaration and acknowledge the importance of a separate legal instrument for the strengthening of the citizen participation in public affairs at local level. We do consider, however, that the elaboration so far of the aforementioned topics in the framework of this additional Protocol does not quite reflect the diversity of the aspects of citizen participation at local level in such a way that can bring out “the European culture of democratic participation of citizens in local public life”.

In particular, having as a point of reference the need to secure the right of access to official documents, which is a necessary, but not the only condition for democratic participation at local level, the draft of this additional Protocol provides for the citizens’ participation through the exercise of electoral rights (art. A, par. 4) and the informative, consultative and decision-making participation (art. C, par. 3). However, the draft does not make any provision for other crucial forms of participation, such as participation of citizens in providing local public services or joint initiatives between local authorities, association of citizens, and NGOs or voluntary sector, at a time when the turnout of local elections is low and the level of trust people have in their elected institutions has declined, as it has been widely admitted. 

Furthermore, there are no provisions for the use of new information and communication technologies that can strengthen the informative and decision-making participation. We note that these dimensions of citizen participation at local level have already been endorsed both by CDLR  and the Committee of Ministers  as well.

We propose that the additional Protocol, endeavouring to present the duties of local authorities in respect of local democracy, and at the same time bring out, not necessarily in an exhaustive way, the crucial aspects of the “the European culture of democratic participation of citizens in local public life” can be broken down into the following articles:

o    Article A Right to participate in the affairs of a local authority

o    Article B Right of access to official documents

o    Article C Participation in the exercise of electoral rights

o    Article D Petitions and Inquiries

o    Article E Decision-making Participation

o    Article F Participation in Implementation

o    Article G Activities with Organisations of Civil Society and NGOs

o    Article H Authorities to which the Protocol applies

o    Article I Territorial application

o    Article J Relationship to the Charter  

Netherlands

The Netherlands wishes to suggest that the CDLR would start on the basis of the letter from the CEMR, which contained suggestions for inclusion in a new Protocol to the ECLSG. This letter has been circulated to CDLR members on the occasion of the previous CDLR meeting of December 2008: see the document with reference number CDLR(2008)38 Addendum.


Portugal

Co-ordination of local and regional finance with central government finance, particularly in respect of public borrowing, in order to ensure countries' balanced development, and the need to attain budgetary objectives set in the context of supranational convergence policies to which countries have committed themselves.

This issue is not directly covered by the Charter. It is an important factor in mutual financial solidarity between public administration sub-sectors.


Question 3.  Have the associations of local authorities in your country been consulted on questions 1 and 2?

 

Country

Associations of local authorities consulted on questions 1 and 2

YES

NO

Armenia

X

Belgium (Brussels Capital Region)

X

Belgium (Flemish Region)

X

Belgium (Walloon Region)

X

Denmark

X

Estonia

X

Finland

X

Comments: The Department for Municipal Affairs got acquainted with the ideas and proposals of CEMR for additional Protocol. Most of the ideas are useful. The Finnish legislation already includes provisions covering the initiatives raised by CEMR.

Greece

X

Hungary

X

Italy

X

Lithuania

X


Luxembourg

X

Comment: We consulted the Association of Luxembourg Towns and Municipalities  - SYVICOL - which defends the interests of our municipalities. SYVICOL approves of Recommendation 228 (2007) of the Congress of Local and Regional Authorities of the Council of Europe in its entirety. It considers that the proposals set out in the recommendation represent significant progress towards strengthening local democracy in Europe. It will be remembered in this connection that the Government takes a different view (see the appended comments addressed to the CDLR Secretariat on 29 May 2008.

SYVICOL also informed us that it is not in favour of the preliminary version of the additional Protocol on democratic participation at local level. It considers the protocol to be quite different in nature from the Charter, since it obliges states to legislate. The protocol can be seen as transforming the nature of the Charter, which contains no such provisions.  Obviously SYVICOL does not contest the fact that citizens should be able to take part in local affairs, but it considers that the draft protocol adopts an unduly "top-down" approach. These views may be shared by the Government. Moreover, Article 3, paragraph 2 of the Charter refers to citizen participation. It is worth considering whether it would not be sufficient to elaborate on, or extend, this provision somewhat, without getting bogged down in details. States should be left to regulate the details in their domestic law.

Monaco

X

Netherlands

X

Comments: The Netherlands’ Associations of Municipalities and Provinces would like to support the view expressed by the Dutch delegation.


Norway

X

Portugal

X

Sweden

X

Comments: Contacts have been taken on political level between the Association for local authorities and regions (SALAR) and the government on this issues. SALAR doesn’t support the position of the government.

Switzerland

X

Comment: Ten of the 26 cantons replied. Nine consider that there is no need for anything extra. One canton considers that the topic of inter-municipal collaboration could be dealt with in the  ECLSG.

 



[1] The UK delegation has indicated it intends to consult the Local Government Association (LGA) on this matter shortly with a view to subsequently determining its reply to this questionnaire.