26th SESSION

Strasbourg, 25-27 March 2014

CG(26)7PROV AMDT

13 March 2014

AMENDMENTS

Local and regional democracy in the Netherlands

Rapporteurs:^[1]    Artur TORRES PEREIRA, Portugal (L, EPP/CCE)

                        Jean-Pierre LIOUVILLE, France (R, SOC)

Draft recommendation (for vote) AMENDMENTS 1-6. 2

Summary

This is the third report on the state of local and regional democracy in the Netherlands.  It underlines that the Dutch authorities seek on the whole to implement the principles set out in the Charter and are ready to consider the pertinence of ratifying some of the provisions not accepted at the time of ratification of the Charter. The report underlines the efforts made at municipal level, in particular in the context of the “Dualisation” reform and the modification of the Municipalities Act. It also refers to the good relationship between central and local authorities and to the authorities’ desire to ensure citizen participation in the political decision-making process. However, the report does express some concern about the fact that the principle of local self-government is not recognised in the Constitution or the relevant legislation. Moreover, the competences of municipalities and provinces are not clearly delimited and are restricted because of the medebewind co-governance mechanism. The mechanisms for consultation of municipal authorities by central government are also inadequate. Lastly, the report highlights the lack of financial resources of local authorities, which are dependent on state transfers and whose income has been limited by the local taxation reform.

It is recommended that the Dutch authorities apply Article 2 of the Charter and define the principle of local and regional self-government in the Constitution or in domestic law. They are urged to clarify and reinforce the “autonomous” and “proper” competences of municipalities and provinces, while also improving the mechanism for consultation between central government and local authorities. The Dutch authorities are also asked to amend the law on municipal and provincial finances and to improve local taxation so that local authorities have greater autonomy. Lastly, the authorities are encouraged to reconsider the relevance of the declaration of non-acceptance of certain provisions of the Charter made when the Charter was ratified by the Netherlands.

DRAFT RECOMMENDATION^[2]

1. The Congress of Local and Regional Authorities of the Council of Europe refers to:

a. Article 2 paragraph 1.b. of Statutory Resolution CM/Res(2011)2 of the Committee of Ministers of the Council of Europe on the Congress of Local and Regional Authorities, which states that one of the aims of the Congress is “to submit proposals to the Committee of Ministers in order to promote local and regional democracy”;

b. Article 2 paragraph 3 of the aforementioned Resolution CM/Res(2011)2, which states that “the Congress shall prepare on a regular basis country-by-country reports on the situation of local and regional democracy in all member States and in States which have applied to join the Council of Europe, and shall ensure, in particular, that the principles of the European Charter of Local Self-Government are implemented”;

c. Resolution 307 (2010) REV2 on procedures for monitoring the obligations and commitments entered into by the Council of Europe member States in respect of their ratification of the European Charter of Local Self-Government (ETS No. 122; hereafter “the Charter”);

d. Resolution 299 (2010) of the Congress on Follow-up by the Congress of the Council of Europe Conference of Ministers responsible for Local and Regional Government (Utrecht, Netherlands, 16‑17 November 2009), which states that the Congress will use the Council of Europe Reference Framework for Regional Democracy in its monitoring activities, as well as the reply made by the Committee of Ministers to Congress Recommendation 282 (2010) (CM/CONG(2011)Rec282final, encouraging the governments of member states to take account of the above mentioned Reference Framework;

e. Recommendation 55 (1999) on local and regional democracy in the Netherlands and Recommendation 180 (2005) on the state of local finances in the Netherlands.

2. The Congress stresses the following:

a. The Kingdom of the Netherlands (hereafter “the Netherlands”) became a member of the Council of Europe on 5 May 1949. It is one of the Organisation’s founding States. It signed the European Charter of Local Self-Government (ETS No. 122, hereafter “the Charter”) on 7 January 1988 and ratified it on 20 March 1991. The Charter entered into force with respect to the Netherlands on 1 July 1991. At the time of ratification, the Netherlands made several “declarations” pertaining to different articles of the Charter, on the grounds of Article 12, paragraph 2 of the Charter: namely, that the Netherlands will not consider itself bound by the provisions of Article 7, paragraph 2; Article 8, paragraph 2; Article 9, paragraph 5; and Article 11 of the Charter. Moreover, and in accordance with Article 13 of the Charter, the Netherlands declared that it intended to confine the scope of the Charter to provinces and municipalities and that the Charter would apply to the Netherlands in Europe (on the grounds of Article 16 of the Charter).

b. The Netherlands signed the Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority (ETS No. 207) on 16 November 2009 and ratified it on 16 December 2009 with entry into force on 1 June 2012.

3. It notes that:

a. Mr Artur TORRES PEREIRA (Portugal, L, EPP/CCE), Rapporteur on local democracy, and Mr Jean‑Pierre LIOUVILLE (France, R, SOC), Rapporteur on regional democracy, were instructed by the Monitoring Committee to prepare a report on the Netherlands and to submit it to the Congress;^[3]

b. the monitoring visit took place from 14 to 16 May 2013. During this visit, the Congress monitoring delegation met with representatives of State institutions (Parliament, Ministry of the Interior, Ministry of Finance), judicial institutions (Council of State, Raad van State), the Ombudsman (at national and local level) several local authorities (Amsterdam, Zoeterwoude, Gouda, local audit offices) the Association of Municipalities (VNG) and the Association of Provinces (IPO);

c. the delegation would like to thank the Permanent Delegation of the Netherlands to the Council of Europe, the Dutch Association of Municipalities (VNG) and the Dutch Association of Provinces (IPO) for their very warm welcome and proactive assistance throughout the visit.

4. The Congress notes with satisfaction:

a. the generally positive nature of local democracy in the Netherlands as regards the implementation of the principles enshrined in the Charter, particularly those laid down in Articles 3, 5, 6, 7, 8 and 10;

b. the “Dualisation” reform from 2002-2003 by which the whole municipal organisation has been reformed, separating the composition, functions and powers of the council and the executive board;

c. the modification of the Municipalities Act which regulates the involvement of the council in the appointment procedure of the mayors;

d. the generally good relationship between central and local authorities through the Code on Inter-administrative relations 2013, concluded between the Government, the IPO and the VNG regarding matters of co-operation, co-ordination, mutual assistance, supervision and control;

e. the fact that Dutch authorities are ready to consider the pertinence of ratifying some of the provisions not accepted at the time of ratification of the Charter;

f. the active participation of Dutch citizens in the political decision-making process.

5. The Congress regrets:

a. that the principle of local self-government as required in Article 2 of the Charter is not explicitly or directly recognised either in the Constitution or in the applicable domestic legislation (Municipalities Act);

b. the lack of clarity as regards competences for municipalities and provinces (Article 4 para.1);

c. that under the co-governance mechanism of Medebewind, local authorities’ capacity to act and to take decisions is much more reduced when compared to their “autonomous” competences (Article 4 para.4);

d. the insufficiency of the mechanisms of consultation with municipal and provincial authorities during the process of planning and decision-making in all matters directly affecting them (Article 4 para. 6);

e. the inadequacy of financial resources freely available to local authorities, their dependence on State transfers and their limited own income in the framework of their competences (Article 9 para. 1 and 2);

f. that the local taxation reform has limited the income of municipalities and provinces (Article 9 para. 3).

6. The Congress recommends that the Committee of Ministers invite the Dutch authorities to:

a. clearly define the principle of local and regional self-government in the Constitution or in domestic law, in the light of Article 2 of the Charter;

b. clarify the areas of competence of municipal and provincial authorities, including those set out in the different sectors of government activity, in line with the spirit of Article 4 para. 1 of the Charter;

c. reinforce the “autonomous” and “proper” competences of municipalities and provinces and reduce the tasks performed under the “Medebewind” procedure, in the light of the Article 4 para. 4;

d. strengthen the mechanism of consultation between the State and the municipal and provincial level during the process of planning and decision-making in all matters affecting the local authorities directly (Article 4 para. 6 of the Charter);

e. amend the law on municipal and provincial finances in order to grant local authorities more autonomy from State transfers and allocate appropriate and concomitant financial resources for all competences exercised by municipal and provincial authorities, as required by Article 9 paras. 1 and 2;

f. improve local taxation so that local authorities can raise their own funds, in line with the requirements of Article 9 para. 3 of the Charter;

g. reconsider the ratification of some non-accepted provisions of the Charter by a legislative amendment of the domestic law, notably its Article 7. 2 which is apparently applied de facto.

7. The Congress invites the Committee of Ministers of the Council of Europe to take account of the present recommendation on local and regional democracy in the Netherlands, as well as its explanatory memorandum, in its own monitoring procedures and other activities relevant to this member State.