CM(2005)199 Addendum 4 January 20061
953 Meeting, 18 January 2006
10 Legal questions
10.2 Steering Committee on Local and Regional Democracy (CDLR) –
Abridged report of the 36th meeting (Strasbourg, 14-16 November 2005)
Comments of the Congress on the Opinion of the CDLR concerning Congress Recommendation 162 (2005) (adopted by the Congress Bureau at its meeting of 16 December 2005)
Item to be prepared by the GR-J at its meeting of 10 January 2006
In May 2005 the Congress adopted Recommendation 162 (2005) on the revision of its Charter. At their 936th meeting on 7 September 2005, the Ministers’ Deputies took note of Recommendation 162 and transmitted it to the CDLR for possible comments in this regard.
At the meeting on 28 September 2005, the Bureau of the CDLR held a first exchange of views on the subject. Halvdan Skard, President of the Chamber of Local Authorities and one of the two co-rapporteurs on Recommendation 162 took part in that meeting, and in the CDLR’s meeting on 15 November 2005 at which it adopted comments presented in Appendix 4 to the abridged report CDLR (2005) 55 Final.
The CDLR’s comments will be transmitted to the TC-LARC (Committee of Ministers Thematic Co-ordinatoron Local and Regional Co-operation) to be considered with a view to presenting a draft reply of the Committee of Ministers to Congress Recommendation 162.
At the present stage, the Congress therefore wishes firstly to clarify some points raised in the CDLR’s comments and secondly to inform the CDLR and the Committee of Ministers of the current state of the Congress discussions in the matter, particularly considering the fact that since Recommendation 162 was adopted, the 3rd Council of Europe Summit has taken place and the Organisation’s budgetary perspectives for 2006 are now established.
2. 1st transitional provision of the Charter
At the adoption of the Charter by the Committee of Ministers in 2000, a re-examination of this provision was foreseen once a period of 6 years had elapsed. This time limit was set having regard to the two-year intervals at which the national delegations to the Congress are reconstituted, the next renewal of their membership being envisaged in the time-frame of the 13th Plenary Session in May 2006. As the authorities of the member countries will be invited towards the end of March 2006 to make preparations for fresh appointments to the delegations, to be made at least a month ahead of the Session, the Congress wanted the discussions concerning the review of this transitional provision to take place in time for the 2006 renewal; the next one is scheduled for 2008. Thus the Committee of Ministers has the option of re-examining this transitional provision either in time for a reconstitution of delegations in 2006, or later should it so wish, nevertheless bearing in mind that a transitional provision has no call to be retained as such for too long when a reasonable time limit of 6 years was originally prescribed for its re-examination. Thus there is no hard and fast time limit for carrying out this examination, but in adopting this transitional provision it was the clear wish of the Committee of Ministers and the Congress to limit in duration the possibilities for non-elected persons to hold seats in the Congress. Compliance with the spirit of this reinforcement of the representativeness of the Congress is therefore the chief concern in carrying out this re-examination not later than 2006.
The options available when this re-examination of the transitional provision takes place are either to extend it for a further reasonable period, or to abolish it outright, or to abolish it and redraft Article 2 paragraph 1 of the Charter so as to clarify the specific mandates which persons sitting in the Congress are required to hold at local or regional level.
The Congress is fully aware of the difficulties to be overcome in order to arrive at a consensus on this point, owing to the particular situation in certain countries. It has held its own protracted discussions on this subject. In Recommendation 162, it proposed a new formulation of Article 2 paragraph 1, the outcome of a compromise reached following those discussions.
However, the Congress is ready to look at this proposal in detail with the Committee of Ministers in order to strengthen the Charter and place still stricter limits on possibilities for persons not elected at local or regional level to hold seats in the Congress. The examination should nevertheless take place in reasonable time and according to the spirit enshrined in the Charter adopted by the Committee of Ministers in 2000.
One of the arguments frequently invoked is alignment with the rules of the Committee of the Regions of the European Union. This could indeed represent a possibility. The rules are contained in the Rules of Procedure of the Committee of the Regions, Title I, Chapter 2, stipulating that the members of the Committee of the Regions shall hold a regional or local authority electoral mandate or be politically accountable to an elected assembly. It is further provided that they “shall be completely independent in the performance of their duties, in the general interest of the Community”. Rule 3 specifies that the term of office of a member or alternate “shall be terminated by resignation, the end of the electoral mandate on the basis of which he was appointed, or death”.
So, the Committee of the Regions does not apply the six-month rule enabling Congress members to sit for a further six months after forfeiture of their mandate. It is also plain that the Committee of the Regions insists on the electoral mandate which was the basis for making the appointment, and that consequently it does not suffice to hold some other mandate that could also secure eligibility for membership of the Committee. In one sense, then, the Rules of Procedure of the Committee of the Regions are more stringent than those of the Congress. However, the formulation set out in Article 2.1 of the draft Charter contained in Recommendation 162 (2005) embodies substantially the same stipulations as those made for the Committee of the Regions, even being more precise in certain respects. The Congress wishes to progress ever further towards elected member representation.
With regard to the question of representation of the Finnish Mayors, the Finnish delegation in the Congress seems to believe that the formula chosen does cover their concerns.
3. Proposed amendments concerning the name and the internal functioning of the Congress and its bodies
Apart from the points raised by the CDLR concerning amendment of Article 2 paragraph 1 of the Charter, already addressed above, the CDLR recommends that the Committee of Ministers approve all the Congress proposals except two items concerning which it expresses doubts that the Congress nevertheless feels can be readily dispelled.
These are the division of the members between the two Chambers (Article 3.2 of the Charter) and the election of the Bureau members, all of whom are in effect Vice-Presidents (Articles 13.1 and 14).
It should indeed be made clear that the Congress intends no change in the present practice and rules, but has proposed to reformulate these articles so as to clarify their implications, doing so in the light of the experience gained over the past five years of operation.
Two considerations need to be distinguished, in fact. One is that within the Congress membership, the representatives and alternates of the Congress are distributed between the two Chambers so that they each have the same total number of members, equalling the total number of representatives sitting in the Congress. The other is that the wording of the various articles relating to the members of the Bureau needs some editing for greater coherence.
The President of the Congress is elected, as are the Presidents of the two Chambers and their seven respective Vice-Presidents. The Bureau is therefore composed of the President of the Congress, the Presidents of the two Chambers who are Vice-Presidents of the Congress, and the fourteen other Vice-Presidents, a total of seventeen members.
The election requirements are laid down in the Rules of Procedure. The changes in wording are intended to clarify these provisions.
4. Amendments concerning the place and role of the Congress in the Council of Europe and budgetary implications of the revision of the Charter
The CDLR’s other comments on the proposals of the Congress principally concern two aspects: the implications of the Congress proposals as regards its place and role in the Organisation, and the possible budgetary implications.
For one thing, the CDLR raises questions as to the effect of deleting the word “consultative” from Article 2 of the Statutory Resolution. It should be observed that the description of the Congress in Article 1 of the Statutory Resolution would remain unchanged, designating the Congress as the organ representing local and regional authorities.
In the opinion of the Congress, the aforesaid Article 1 is the essential clause, whereas Article 2 is intended to state the aims of the Congress, whose description would remain unchanged.
In proposing to delete the word “consultative”, the Congress therefore seeks purely and simply to clarify its role and its aims within the Organisation; these are not confined to a consultative role but pertain far more to a representative and political role. This consultative role vis-à-vis the Committee of Ministers and the Parliamentary Assembly would continue to be as it is described at present in Article 2.2 of the Statutory Resolution. But it is just one of the aims mentioned, even though the Congress assuredly attaches very high importance to it.
According to Article 263 of the Treaty of Nice, the Committee of the Regions has “advisory status”. The CDLR therefore queries the expediency of deleting the word “consultative” from the Congress Charter, but it should be pointed out that the current Statutory Resolution already vests the Congress with a certain number of functions that are more than consultative. This particularly applies to Article 2 paragraph 1.a requiring the Congress “to ensure the participation of local and regional authorities in the implementation of the ideal of European unity”, Article 2 paragraph 1.c stating that it should “promote co-operation between local and regional authorities”, Article 2 paragraph 1.d which makes provision for maintaining contact with international organisations as part of the general external relations policy of the Council of Europe, and Article 2 paragraph 1.e calling upon the Congress to work in close co-operation with the national, democratic associations of local and regional authorities and with the European organisations representing local and regional authorities of the member states.
The strictly consultative role is expressed in Article 2 paragraph 1.b and in Article 2.2.
In the real nature of things, Article 2 paragraph 3 also goes beyond the consultative function in tasking the Congress to draw up reports on the situation of local and regional democracy in the member states and to ensure that the principles of the European Charter of Local Self-Government are implemented. Article 2 paragraph 4 makes express provision for the Congress to adopt Resolutions which do not entail action by the Assembly and/or the Committee of Ministers.
Accordingly, the deletion of the word “consultative” merely sets the seal on an already existing legal position and practice. It also places the Congress on a par with the Parliamentary Assembly whose title has been changed despite the fact that the Statute mentions a “Consultative” Assembly.
It should also be recalled that the Warsaw Summit has specifically requested the Congress to play an important role in the Council of Europe set-up, with particular regard to the implementation of a number of issues in the Action Plan.
As to the budgetary implications, the CDLR is anxious about the proposals for modifying the text of the Statutory Resolution and Charter wherever it is mentioned that the Congress holds one Plenary Session per year. The purpose of these proposals is to enable the Committee of Ministers to adopt a text that would no longer limit the number of Congress Plenary Sessions but would afford the Congress the future possibility, under the proper conditions, of holding more than one Plenary Session per year. These conditions might materialise in the future prospect of more favourable budgetary situations and/or through a partial internal reorganisation of the Congress proceedings.
At present the Congress holds one Plenary Session to which all representatives in the national delegations are invited, besides which it organises a spring and an autumn session to which the full members of one of the 4 Statutory Committees are invited (in rotation) as well as the full members of the Standing Committee. The Congress keeps up an ongoing internal process of reflection about the organisation of its work in order to derive maximum benefit from the resources which the Committee of Ministers allocates to it each year. Consequently it might in future propose solutions for possibly organising two Plenary Sessions per year, subject to a reasonable increase in the budgetary and human resources which the Committee of Ministers might agree to grant it. The Committee of Ministers of course retains control over the budgetary and human resources which it allocates to the Congress annually. The text proposed by the Congress by no means anticipates any increase in the Budget but merely envisages it as a possibility.
The Congress remains at the disposal of the Committee of Ministers to deliver any additional information which it may request, particularly in the light of the CDLR’s comments.
The Congress is also quite prepared to engage in dialogue with the Committee of Ministers on all points put forward in Recommendation 162 and especially to carry out detailed consultations with the Committee on any question relating to the place of the Congress in the Organisation and its contribution to the general aims of the Council of Europe.
Note 1 This document has been classified restricted at the date of issue. Unless the Committee of Ministers decides otherwise, it will be declassified according to the rules set up in Resolution Res(2001)6 on access to Council of Europe documents.