Application of Article 3.2 of the Charter
on the basis of the 5th general report on monitoring of the implementation
of the European Charter of Local Self-Government
Rapporteur: M. Anders KNAPE (Sweden)
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EXPLANATORY MEMORANDUM
1. Introductory remarks
1. One of the main statutory responsibilities of the Institutional committee of the Chamber of Local Authorities is political monitoring of the implementation of the European Charter of Local self-government (hereafter: the Charter). This responsibility derives from Article 2.3 of the Statutory Resolution (2000) 1 relating to the CLRAE adopted by the Committee of Ministers of the Council of Europe on 15 March 2000 that inter alia says, “The Congress shall … ensure, in particular, that the principles of the European Charter of Local Self-government are implemented”. Furthermore, Article 36.1 of the Rules of Procedure of the Congress established that “The institutional committee of the Chamber of Local Authorities shall be responsible, with its independent experts, for monitoring the Charter”.
2. It is important to underline that the Congress, which is made up of local and regional elected politicians, is responsible within the Council of Europe for monitoring the implementation of the principles of an international treaty.
3. As it can be seen from the text of the Rules of Procedure, this task is carried out by the Congress with the help of the Group of Independent Experts on the Charter by adopting on a regular basis general reports and related recommendations on the implementation of the principles of the Charter in the member States of the Council of Europe which have signed and ratified it. It should be remembered that, so far, 39 countries have signed and 35 have ratified the Charter. To date, four general reports have been adopted by the Congress on the implementation of the Charter (they deal with the incorporation of the Charter into ratifying states’ domestic law, supervision of local authorities, local authority finance and local authorities’ powers).
4. The main objective of these reports is to examine in detail the legal foundations of local self-government and the conditions under which it operates in states which have merely signed the Charter. The examination procedure functions rather as a political incentive. It respects a variety of models and practices of local self-government in the various European states. Accordingly, the Congress endeavours to take account of each state’s individual characteristics and to interpret the Charter’s provisions progressively.
5. The subject of the fifth general report on implementation of the Charter was decided at the meeting of the institutional committee of the Chamber of Local Authorities in Strasbourg on 3 October 2000. It was selected on account of its importance and because local-authority executive organs’ responsibility as referred to in Article 3.2 of the Charter, “This right shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsible to them. This provision shall in no way affect recourse to assemblies of citizens, referendums or any other form of direct citizen participation where it is permitted by statute”, may pose problems of interpretation. The subject was felt to be particularly important and of interest as local-democracy arrangements are very much an issue at the moment and local democracy is developing very fast in quite a large number of European countries.
6. At the request of the Committee, Professor Philippe De Bruycker, Professor at the Free University of Brussels, prepared a questionnaire, which the Committee approved on 8 November 2000. After initial informal contact in Brussels, and at the rapporteur’s invitation, the Chair of the group of experts, Mr Alain Delcamp, and Mr De Bruycker went to Sweden on 28 March 2001 to discuss the political issues which the fifth report raised and what method to adopt in writing the report. Subsequently, thirty-three replies were received, from: Albania, Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Macedonia, Malta, the Netherlands, Norway, Poland, Portugal, Romania, Slovenia, Spain, Sweden, Turkey, Ukraine and the United Kingdom. A preliminary draft summary of the national reports was submitted to the group at a meeting attended by rapporteur in Strasbourg on 6 and 7 November 2001. At that meeting group members gave their views on the overall shape of the report. The final report also includes an analysis and suggested interpretation of Article 3.2 of the Charter which reflect the findings of Dr Gerhard Engel’s technical study – based on Professor Eivind Smith’s work – on compatibility with Article 3.2 of appointment of public servants to head local-authority executive bodies. A good deal of material from that study has gone into this report, and Dr Engel and Mr Smith are due sincere thanks for their important input to this report. The second draft report was discussed with the experts at a meeting in Strasbourg on 11 March 2002.
7. Before presenting my findings and conclusions on the interpretation of Article 3.2 of the Charter, I would like first of all to thank Professor Philippe De Bruycker, as well as all other members of the Group of Independent Experts, for their valuable assistance in producing this report.
8. I would like to highlight that the fundamental mission of managing public affairs at local level, as laid down in the text of the Charter, is a major political challenge. It brings to the citizens of Europe a greater democratic value and more efficiency when it comes to the needs of everyday life of the citizens. This monitoring procedure carried out by the Congress should not be underestimated. I feel honoured to have the analysis of the Group of Independent Experts as the starting point for the recommendation upon which the Congress is called to vote.
9. Before commenting on some of the my findings and crucial issues with regard to the organisation of local democracy, I would like to share some of my fundamental views on the local authorities’ role in the public life :
- It is important that local authorities are considered as political bodies. In my view, from local democracy perspective, the freely elected assemblies are the main actors in the decision making process. Election definitely give political legitimacy to these organs;
- It is equally important to note that Article 3.2 of the Charter is decisive when granting the assembly the right to exercise local self-government and thus the ultimate democratic responsibility but is flexible when it comes to definition of the executive organ which the local assemblies may possess and which are responsible to the assemblies.
2. Local authorities are political bodies
10. I understand that the Charter stands on the premise that local authorities are political bodies, which may of course perform administrative tasks. The concept of local self-government as laid down in the Preamble of the Charter and in Article 3.1 is based on the political right and the ability to regulate and manage a substantial share of public affairs under local authorities’ own responsibility and in the interest of local population.
11. Local elected representatives exercise the right of local autonomy on the basis of political mandate given through free local elections. Consequently, an assembly elected in free elections should hold the ultimate local power. Its decisions should have effects on the administration and on the executive power. In other words, only local assemblies can be considered as holders of the right to exercise the right of local autonomy and therefore manage public affairs at local level. In this respect, I would also like to underline the role played by the political parties in public life at local level. The political parties, not necessarily holding the monopoly, provide to the population with a valuable platform for expressing citizens’ views on how local affairs should be managed.
12. However, administration and execution of local policy should not be disregarded or thought of as less important. I believe that local authorities should be regarded as political organs having, at the same time, administrative and executive functions.
3. The Assembly and the executive organ
13. As the experts’ report shows it, the idea of the local assembly as the highest organ responsible for overall local affairs seems to have been well established in many countries regardless of the type of assembly regime. Primacy of the assembly seems fairly general in all member States of the Council of Europe.
14. It is an important common point as the basic thinking should be that as the representative assembly is the supreme organ of the local authority, it makes sense for it to deal with the most important matters, such as - obviously - setting out of political goals, voting of the local budget and taxes, town planning, approval of local policies, approval of the annual account by the executive.
15. While the assembly generally should be responsible for making the rules and oversee policies (i.e. perform supervisory functions), the executive should be responsible for implementing them by taking the individual decisions required.
16. However, it is regrettable that in some cases primacy of the executive seems to be un avoidable for a number of specific reasons, such as ineffectiveness or non-existence of machinery for assembly supervision of the executive, assembly members’ short term of office, the absence of deep rooted democratic traditions and the characteristics of the manager system.
17. As local politicians, we are all aware, that the executive in practice can control information, time and resources. In this respect, a democratic control of the executive by the assembly should be put in place so as to allow local elected councillors to have a strong say about the way of managing local affairs, to have access to information and the right to discuss any matter of local interest.
18. I think that the Congress should welcome the current discussion in many countries on shifting the balance of the system more towards the assembly. Such a balance between institutions at local level should be sought on a more general basis.
19. Several ways forward are conceivable in that sense. The first question is whether the assembly cannot be relieved of some management tasks so as to allow it to concentrate on its supervisory functions. Assembly delegation of tasks to the executive is a possibility worth considering in this context. It would also be worth considering to lighten the assembly’s workload and make, consequently, local management more efficient, though there are of course some basic responsibilities such as the budget and taxes, town planning, approval of local policies, approval of the annual account by the executive which can never be delegated. Secondly, an attempt could be made to promote more effective assembly supervision of the executive. It might be suggested that the local executive should present a political programme at the start of its term of office (it could be a legal requirement) and report to the assembly on a regular basis. This mechanism should ensure transparency of the decision making process and allow a regular effective control over the executive.
20. Apart from these considerations on the practical and legal mechanisms related to effective control of the executive, I would also like to specifically underline, that the assembly’s fundamental mission is to set out political goals and directives, which the executive body has to implement. It is the assembly – not the executive body – which has to define the fundamental political priorities at local level. What needs to be controlled is the fulfilment and execution of those goals. In this respect, the Charter clearly provides that the executive organs are responsible to the assembly.
21. It goes without saying that many practical arrangements with regard to the organisation of local democracy can be explained in historical terms. They also reflect a variety of institutional traditions in the member States. In some countries, there are examples of local authorities playing dual role. In those cases there might be a need for reform, bringing a more clear-cut and transparent division of powers the assembly and the executive organ.
4. Responsibility of the executive organ
22. At the very heart of Article 3.2 of the Charter stands the question of responsibility of the executive organ before the elected assembly.
23. Nearly all the experts took the view that, in their national systems, the local executive was responsible to the local assembly.
24. In my view, in a system based on democracy the executive organ should be politically responsible before the assembly whatever the mechanism of its election or designation.
25. From a purely legal point of view, it seems that the Charter is flexible as to the forms of election or designation of local executive. It gives the freedom of different solutions as long as they are acceptable from a democratic perspective. The Charter does not say much about forms of election or designation of the executive. However, taken into account the experience of most Council of Europe member States, a procedure which does not foresee election of the executive seems no longer appropriate in the context of a modern local democracy. The Charter also clearly provides that whatever form of local executive is chosen it must be responsible before the assembly. One can also assume that the form of responsibility may vary and depend on the mode of designation of the executive. In this respect four main forms of designation may be distinguished: the executive elected or appointed by the assembly; the executive directly elected by the local population; the executive appointed by national or regional authorities (or by a national independent board); executive functions performed by the assembly itself.
26. With the exception in the case when the executive is appointed by the higher authority the dismissibility of the executive by the assembly might not be regarded as the only compulsory requirement in order to engage the responsibility by the executive. It cannot be excluded either if national legislation foresees such a procedure.
27. As shown above, the requirement to be responsible can be met by other means, i.e. by foreseeing in law and putting into practice different tools aimed at ensuring an effective control of the assembly over the executive. That would be a minimum requirement. The procedure of the dismissibility might still be ultimately implemented through the exercise of different rights by the assembly.
28. In addition, other mechanisms can be guarantied by law in order to ensure transparency and effective control over the executive such as the right to put questions to the executive organ, the right to request a meeting of the assembly and the right to have an item added to the agenda.
29. As to the different forms of elections or designation of the executive organs the following suggestions can be made :
29.1 In my view the executive organ should be either elected by the assembly or by the population. However, if the executive is not elected, but appointed by a national or even regional authority the national law should explicitly stipulate a procedure of individual dismissal of the executive by the representative organ.
29.2 If the population directly elects the executive organ there should be clear rules of accountability, which should at the same time guarantee effective control of the executive by the assembly. It is obvious, that the budget and the political priorities of the city should fall into the scope of the municipal assembly’s responsibility. Other mechanisms could be conceivable such as holding of simultaneous elections of the executive and the assembly by the population, the dismissal of the assembly (or parallel dismissal of the mayor and the assembly or dismissal of the executive with association of the local population) in the view of new local elections.
29.3 If the executive is elected by (or often within) the assembly, the executive organ should be changed within the mandatory period only as the result of a changing political majority in the assembly. This will guarantee democratic stability of local government. Simply acting “wrongly” is not a reason to dismiss an executive, in this case, the executive should be dismissed on the grounds of breach of the law or misconduct.
30. The reference to the wording of the Statutory Resolution 2000 (1) of the Congress and to Article 263 of the EC Treaty is perhaps the best way to read Article 3.2 of the European Charter of Local Self-government. These documents underline the importance of the political mandate and the subordination of the executive, demanding the CLRAE and Committee of Regions members to appoint representatives who either have electoral mandate or hold a position in which they are politically responsible to an elected assembly.
Appendix - Summary REPORT on "The Institutional Framework of Local Democracy" (Application of Article 3.2 of the Charter)
Report prepared by Professor Philippe DE BRUYCKER
1. INTRODUCTION
1. The subject of the fifth general report on implementation of the Charter (the first four were on incorporation of the Charter into ratifying states’ domestic law, supervision of local authorities, local authority finance and local authorities’ powers) was decided at a meeting in Strasbourg on (3 October 2002). It was selected on account of its importance and because local-authority executive organs’ responsibility as referred to in Article 3.2 of the Charter (“This right shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsible to them. This provision shall in no way affect recourse to assemblies of citizens, referendums or any other form of direct citizen participation where it is permitted by statute”) poses problems of interpretation. The subject was felt to be particularly important and of interest as local-democracy arrangements are very much an issue at the moment and local democracy is developing very fast in quite a few European countries:
2. • Spain has not long emerged from a series of law reforms (1997-99) implemented by means of a political agreement called the “Local Pact”. The reforms have strengthened the position of mayors and the supervisory powers of local assemblies;
• reforms are also under way in the Netherlands. After thorough discussion, informed by an extensive report produced by a commission of enquiry chaired by an academic (the report was published in January 2000), a law was passed to introduce more dualism into Dutch local government and came into force on 7 March 2002;
• the United Kingdom and Ireland are also going through a period of substantial reform aimed at introducing genuine local executive bodies as part of a system whose most innovative feature is that it gives local authorities a choice of models to adopt;
• since a constitutional revision in 1994 Austria’s Länder have been allowed to introduce direct election of mayors;
• reforms are under discussion in Belgium: in January 2002, responsibility for the organisation of local authorities was transferred from the federation to the regions, and the many supporters of direct election of mayors have taken the opportunity to engage in very vocal advocacy, particularly amongst the Flemish population, where support for such a move seems particularly strong;
• support for reform of that kind is also emerging in Lithuania;
• in other countries the concern is to rectify defects in recent legislation establishing local democracy on presidential lines. In recent years, for instance, there has been debate in Slovenia about the deadlocks that can result from disagreement between a directly elected mayor and the assembly, and this has also been an issue in Italy since direct election of mayors was introduced in 1993 and has yet to be satisfactorily resolved.
3. In response to comments regarding the methodological problems encountered when preparing the report (2), it is now divided into two parts, the first dealing with the relations between local authorities and citizens (3) and the second relating to the heart of the matter, namely the institutional framework of representative local democracy (4). There is also a final part (5) including an analysis and interpretation of Article 3.2 of the Charter which reflect the findings of Dr Gerhard Engel’s technical study – based on Professor Eivind Smith’s work – “on compatibility with Article 3.2 of appointment of public servants to head local-authority executive bodies”. A good deal of material from that study has gone into the third part of this report, and Mr Smith is due sincere thanks for his major input.
2. METHODOLOGICAL PROBLEMS ENCOUNTERED IN PREPARING THE REPORT
4. Preparing the report, much of which is taken up with comparative law, was greatly assisted by the experts’ on the whole keeping to the layout of the questionnaire. Quite a few methodological problems nonetheless cropped up.
5. The first of these problems has two aspects to it. A report whose core is taken up with comparative law must necessarily have a theoretical dimension so that the wide range of situations in the many countries examined can be reduced to a small number of models allowing the different systems to be categorised and their similarities and differences to be summarised. The classic simplification problems which this kind of comparison is bound to cause were compounded by the fact that treating a subject such as the institutional structure of local democracy entails transposing concepts of constitutional law (such as the parliamentary and presidential systems and the separation of powers) to the field of administrative law. The experts were asked to categorise their systems of local democracy and most felt able to do so, the notable exception being the British expert, who felt that local government by committee was not reducible to any model. Generally speaking there was a clear feeling that there were difficulties to describing local-authority structure in terms borrowed from constitutional law, and there was real hesitancy about doing so.
6. This is largely due to local authorities’ being traditionally regarded as administrative, not political entities. This view of the matter, which was long the dominant one, is no longer tenable given that - subject to the question of organisation of the executive organ which is central to this report - the Charter defines local self-government as a right exercised on behalf of local communities by officials elected by the population to perform a role which, in their absence, would fall to public servants appointed by central government, and so there would appear to be no good reason to regard them as administrative rather than political entities. The present report, which suggests treating local democracy in constitutional terms, is in fact part of a process of working out a body of “local constitutional law”, a process which is already under way in some member states and is influenced by constitutional case-law (in France, for example). The aim is both to identify the different types of local democracy (and their basis) and to gain a better grasp of the significance of the reforms which many Council of Europe member countries are carrying through, the fine detail of which is as yet unclear. The question of local executive organs’ responsibility to the assembly is an important aspect of this: the concept involved is basic, in constitutional law, to the distinction between parliamentary and presidential systems and central to interpretation of Article 3.2 of the Charter. It has to be borne in mind, however, that the categories selected (parliamentary, presidential, etc) are here less labels to be attached to ideal, unadulterated exemplars of types of system than as descriptors of general models typified by a number of features that place a given system, relatively rather than inherently, in one category rather than another. This nuanced approach, which also applies to such categories when used in constitutional law, does not make it invalid or uninstructive to transpose them to the sphere of local government.
7. The second problem, which is one of translations as well as concepts, can be illustrated by the terms “mayor” and “executive”. “Mayor” is fairly widely used but the duties it covers differ considerably, ranging from leadership, with genuine political responsibilities, of a local authority to an essentially honorary representative role. As can be seen from the national reports we received, the implications of the term “executive” are similarly varied, something not realised by quite a few of the experts who understand the word to mean public servants appointed to implement local policies. To clarify this essential matter, it is no doubt appropriate to draw a distinction between the “functional” or administrative meaning of the word “executive”, which means overall organs and services appointed to implement the decisions voted by the assembly and which can indeed take in municipal administration, and the narrower, political meaning - the political organ responsible for the implementation of local policy.
8. A third problem is the report’s scope, which, as originally planned, was no doubt over-ambitious. The four-page-long, 37-question questionnaire sent to each of the experts representing Charter signatories was originally intended to cover local authorities of all levels not forming a characteristic federal or regional level of the composite state. While some experts took the trouble to give, in some cases, remarkably detailed replies covering each level of local government in their country (some countries have as many as three levels) and, in federal systems1, describing the range of rules according to the responsibilities vested in the federated entities, quite a few experts concentrated on the bottom tier of authorities without giving any information about the higher tiers. It would undoubtedly be of interest to highlight the various possible approaches to institutional structure at the different levels of local democracy, but the report focuses on the communes/municipalities which form the basic level of decentralisation, while giving occasional information about the other levels of local government.
3. LOCAL DEMOCRACY AND RELATIONS WITH THE PUBLIC
3.1. Representative democracy and direct democracy
9. In all countries, local democracy is based on representation of the local community by an assembly directly elected by the people. This basic principle is long established in many European countries, except Malta, which is a special case, and leaving aside the communist experiment in the past in central and eastern Europe. The question is to what extent it is compatible and combinable with direct democracy.
10. There are very few countries which have a historical tradition of direct democracy. Croatia and Macedonia, or even Slovenia and the German Lander of Bavaria and of Baden Württemberg, are exceptions, which doubtless have not a little to do with the rather special experience of Yugoslavia. Interestingly, there does not seem to be very much difference in this matter between the central level and the local level, and local authorities’ proximity to the citizen seems not to be crucially linked to the use of the referendum, or - as we shall see - to electoral turnout (see below). In the vast majority of European municipalities, both the size of the population and the complexity of the matters to be dealt with rule out the purest form of direct democracy - a meeting of the population to manage local affairs. Spanish municipalities with populations under 100 are however managed by a council open to all the people of the village, as are Portuguese parishes with maximum populations of 150. In Austria the people may be called to an assembly, which however takes no decisions and is more in the nature of a forum for debate. Similarly, in Macedonia popular assemblies may be convened at the request of 10% of the electorate and in Slovenia at the request of 5% of the electorate.
11. Analysis of direct democracy presupposes clarification of a vocabulary matter - the meaning of the term referendum - which can blur comparisons if we are not careful. Although the word sometimes has other meanings in the domestic law of Council of Europe member states, we shall confine its use here to procedures in which the local population is required to take a genuine decision binding the local authorities, and we shall therefore be using the term “popular consultation”2 for procedures whose outcome is a mere opinion given by the population which is not binding on the local elected representatives, with whom, in law, the final decision rests.
12. Austria3, Bulgaria, Croatia, the Czech Republic, Finland, Germany, Hungary, Iceland, Italy, Macedonia, Malta, Poland, Romania, Slovenia, Spain, and Ukraine allow local referendums; local referendums seem not to be impossible in Estonia, Lithuania and the United Kingdom, where, however, there is no legal framework and the practice is virtually non-existent. However, the availability of referendums in local democracy does not necessarily mean that direct democracy is actually practised: despite the absence of figures4 - except for Luxembourg, where there have been six popular consultations since 1988, Malta, where just the one referendum is reported, in Valletta, and Sweden, where local assemblies have agreed to only two popular consultations out of the 70 or so requested by citizens - it is evident from the reports that direct democracy procedures are very little used in practice and that consequently their impact on the representation system is very slight. Certainly one may gain the impression, from trends in positive law, that use of direct-democracy methods (mainly popular consultation) is encouraged in some countries, such as Austria since 1984, Belgium since 1995, France since 1992, Luxembourg since 1988, the Netherlands since 2001 and Ukraine since 1997. This has to be qualified, however: in the cases of Belgium, France and Luxembourg , what we really have is a lifting of representative democracy’s absolute monopoly and the introduction of a legal framework, of varying degrees of strictness, governing popular consultation, which was previously merely tolerated. Austria and, to a lesser extent, Italy seem to be the only countries where the various methods of direct democracy have been increasingly used since the 1980s, though in Spain people are often given informal opportunities to give their views on matters of minor importance but of direct concern to them (such as choosing a street name). Because the very existence of local communities is at stake in mergers or de-mergers of municipalities, some countries (such as Cyprus and Estonia) have provision for popular consultation in these cases. The Czech Republic had to apply a brake to prevent referendums from creating municipalities of fewer than 300 people.
13. Referendums or popular consultations can be organised at the instigation of a given number of people (this is the procedure known as the popular initiative). The number of people required varies a good deal: between 10 and 20% of the population at municipal level in Belgium, from 6 to 30% in the Czech Republic, 20% of electors in Croatia, between 10 and 25% in Hungary, from 20 to 25% in Luxembourg, 20% in Macedonia, 8% of electors (with a required minimum of 5,000) in Portugal, and 5% of electors in Slovenia. Malta has only the abrogative referendum, at the request of 10% of the municipality’s population, and this is also the position in Slovenia. Denmark, Finland, Romania and Sweden do not recognise the popular initiative and only the local authority can instigate a popular consultation or a referendum, whereas in France 20% of the electorate can request a popular consultation, though the municipal council is not bound to accede to the request. There is sometimes a minimum participation requirement if voting is to count: between 20 and 10% of the population at municipal level in Belgium, and 50% in Macedonia and Romania. In some countries the right of petition takes a particular form. The local authority can be petitioned on a specific matter, but subject to certain requirements: for example, in Croatia the request has to be made by at least 10% of electors, in Estonia and Finland 2%, in Macedonia 10%, and in Slovenia and Hungary 5%. In Sweden a proposal has been put forward to give each resident such a right. Mechanisms of this kind differ from the referendum in that it is the local authority’s representative organ and not the population which decides the matter.
14. Analysis of this legal framework prompts two thoughts. First, legal reform does not seem inherently capable of bringing about a genuine change in political life when there is no real historical tradition of direct democracy (direct democracy being a question of custom and attitude rather than statute law), which is the position in quite a few countries, as some experts stressed (Albania, Czech Republic, Denmark, Lithuania). Second, the legal framework for direct democracy may, paradoxically, turn out to be a straitjacket at the local level, with Parliament sometimes imposing too severe restrictions for fear of abuses.
15. In 13 Council of Europe member countries which do not allow popular consultation, representative democracy retains a monopoly of decision-making. Those countries are Belgium, Denmark, France, Greece, Ireland, Latvia, Luxembourg, the Netherlands5, Norway, Portugal and Sweden, plus Cyprus, which makes no use of either of the two forms of direct democracy, and Turkey, which uses direct democracy only in certain exceptional cases, notably in rural areas.
16. Proportional voting is used in 3/4 of the states and seems to be an European standard. Voting methods at different levels of government tend to be the same. Ukraine is notable for extreme instability of electoral law, which changes with every election and is currently once again being amended. Nine countries use the majority voting system (France - with variants according to the level of government and the size of municipality - the United Kingdom, Hungary in municipalities with populations under 10,000, Luxembourg in municipalities with populations under 3,500, Slovenia in small municipalities, Poland in municipalities with populations under 20,000, Ukraine and Greece) or mixed voting (Hungary in municipalities with populations over 10,000), although the majority system is preponderant (Italy and France in municipalities with populations over 3,500). In this group of countries an element of proportional voting is used, varying according to the size of the authority. There are minimum vote requirements in Croatia, Estonia, Romania (5%), France (3% in regional elections) and Sweden (3% in county elections).
17. Terms of office vary between three and six years:
• 3 years: Albania, Estonia, Lithuania, Malta;
• 4 years: Bulgaria, Croatia, Czech Republic, Denmark, Finland, Iceland, Ireland, Greece, Latvia, Macedonia, the Netherlands, Norway, Poland, Portugal, Romania, Slovenia, Spain, Sweden, Ukraine;
• 5 years: Cyprus, France (for regional councils), Turkey;
• 6 years: Belgium, France (municipal and district councils), Luxembourg.
18. Terms of office vary according to Länder from 4 to 6 years in Germany and five to six years in Austria.
19. Only nine countries, most of them in northern Europe (Denmark, Estonia, Finland, Hungary, Ireland, the Netherlands, Norway, Portugal and Sweden) allow foreigners (ie nationals of countries not members of the European Union in the case of EU member countries) to vote in local elections, on certain conditions. Malta allows them to vote, subject to a reciprocal arrangement, and the United Kingdom allows Commonwealth citizens to vote.
20. As a rule voting is not compulsory, except in two Austria Länder and five countries (Cyprus, Greece, Turkey, Luxembourg and Belgium - though the abstention rate is still between 35 and 40% in Turkey, and came to 15% in the 1994 municipal elections in the Walloon Region (Belgium) and in Luxembourg in 1999). In all other countries, where voting is not compulsory, abstention rates have been:
• around 15% in Bulgaria;
• 17.7% in Iceland (1998) and 18.6% in Sweden (with a clear upward trend from 1982 to 1998; elections for all government levels are held the same day);
• 10 to 30% in Austria;
• around 30% in Denmark, Italy and Malta;
• 30 to 40% in France and Ukraine;
• 35.97% in Spain (1999);
• 38% in Latvia (2001 - slight downward trend) and Albania (2000);
• 40% in Macedonia, Portugal and Norway;
• 41.7% in Slovenia;
• 42.3% in the Netherlands (2002);
• 44.1% in Finland (1999);
• 48% in Croatia (2001);
• 49.15% in Romania (2000);
• 50% in Ireland (1999);
• 51.2% in Estonia, clearly up on 1989 (28%);
• 54.34% in Hungary (1998);
• 60% in the United Kingdom and 60.1% in Lithuania (1997).
21. Although, ideally, we should be undertaking further detailed studies enabling comparisons to be made over time and between different types of election, it is quite clear that, in general, abstention rates are rising. Moreover, the new democracies in central and eastern Europe typically have higher abstention rates than western Europe although these rates can fluctuate considerably in a very short space of time. Compared with abstention rates for national elections, rates for local elections are 10 to 15% higher in Norway and Denmark, 15% in Romania, 20% in Slovenia, 20 to 30% in the Netherlands and 30% in Hungary. The position is similar in Latvia, Macedonia, Poland and the United Kingdom, though exact figures were not given. Abstention rates are a little lower for local elections than central elections in Albania, Estonia and Italy. Rates are much the same for all elections in France and Portugal. In addition to the alarming abstention rates exceeding 50% in six countries, it is worth noting that the notion of local-authority people-friendliness is contradicted by a higher abstention for local than national elections in nine countries, with the opposite in only three countries.
22. As regards procedure for supervising the lawfulness of elections, countries can be grouped in two categories: on the one hand are those countries where appeals lie with the courts (Finland, France, Greece, Hungary, Italy, Luxembourg, Portugal, Spain), which may include the supreme court (Austria, Cyprus); on the other are those countries where appeals must be lodged with a specialist electoral body (or a minister, as in Iceland and Norway), particularly to electoral boards for the different levels of government, as in Albania, Croatia, Estonia, Latvia, Lithuania, Macedonia, Malta, the Netherlands, Romania, Slovenia, Sweden, Turkey and Ukraine; in Belgium the appeal body is the provincial executive in the case of municipal elections and the assembly itself in the case of provincial elections, with the same arrangement in Denmark. Further appeal to the courts would nonetheless seem to be guaranteed in most countries.
3.2 Relations between local authorities and the public
23. Leaving aside direct-democracy procedures, it is difficult to summarise the ways in which the public can be brought into implementation of local policy – a matter which is entirely overlooked by the Charter, making the latter seem somewhat outdated in this respect. Outside those spheres where there is joint central and local responsibility and where public involvement in decision-making is frequently governed by detailed rules laid down at the higher level (among other things, as regards public enquiries in planning, environmental matters etc), regulation is to a large extent left to local authorities’ discretion, as is to be expected, and desirable, within their fields of self-government. This report will therefore confine itself to one or two general points concerning an abundance of differing approaches reflected in a vast number of activities.
24. Advisory councils are fairly widespread in Belgium, Italy, Spain, Portugal, France (in towns of some size) and Denmark in the case of senior citizens and foreigners. In contrast there seems to be little public involvement in local policy-making in Cyprus and Turkey. The publication of local-authority by-laws is generally regulated at central level, but may also be left to local authorities’ discretion (Cyprus and Ukraine), the principle of publication being laid down in law in Croatia, Estonia and Hungary. The methods of making decisions public vary, and are evolving. The most traditional approach is entry in an official register, accompanied by public display (indicating, at the very least, the matter which has been regulated) on panels or in local-authority premises (Belgium, France, Luxembourg), while the most modern method is publication on local authorities’ Internet sites (the Croatian, Estonian, Finnish, Icelandic, Irish, Latvian and Netherlands experts particularly drew attention to this, which does not of course mean that this method is not used in other countries). A third method is publication in the local press (Romania) or the regional press or a local-authority newsletter. A legal requirement to publish an official newsletter is uncommon at the local level (Macedonia is the exception), possibly because local authorities are involved in far less decision-making of general concern than central government, and of course depends on the size of authority (in Belgium, for instance, the ten provinces each have an official gazette, but not the 589 municipalities, while in France municipalities with populations over 3,500 have digests of decisions). The rules on administrative transparency, with a public right to consult administrative documents, apply to local authorities. The rules may be general ones applying to all public administration or special rules for local authorities.
25. Whether there is a local institution such as an ombudsman or mediator of course depends on each country’s administrative traditions and the size of the authority. In principle, local authorities are free to introduce an ombudsman/mediator if they wish: the institution exists in several Belgian municipalities, in many Italian municipalities (the “difensore civico”), and the United Kingdom at the different levels of government. In Cyprus the central mediator’s field of responsibility expressly takes in the municipalities. Local authorities are also covered by the mediators appointed by the State and, where appropriate, the Autonomous Communities in Spain and the national ombudsman in Estonia, Iceland, Ireland, Macedonia, Malta, Norway, Romania and Sweden; there are plans along these lines in Luxembourg. In the Netherlands the municipalities can use the national ombudsman’s services provided they pay for them.
26. Few countries place a general obligation on local authorities to inform the public of general policy. Only a few examples can be given:
- in Lithuania, Romania, and , since 2002, Macedonia and Latvia, the local assembly has to produce an annual report for the public;
- Danish law requires local authorities to make a two-yearly progress report on the main local public services, whether run by the authority itself or contracted out;
- Spain’s law of 2 April 1985 contains a general provision which is worth mentioning as a general principle: Article 69 states: “Local authorities must provide as full information as possible on their work and promote involvement of all residents in local affairs”;
- a similar obligation exists in Finland and Norway;
- United Kingdom taxpayers have to be informed how the tax yield is used, and the new executive bodies will have a duty to publish their proposals in advance and to make public the decisions they take;
- although it is impossible to summarise the relevant rules, which differ from one Land to another, Austrian law generally requires municipalities to inform those affected by a project, and there is sometimes a duty to inform, or even consult, specific groups (the young, people with disabilities, senior citizens, etc).
27. In some cases there is a similar obligation to inform local assemblies. In Belgium, for instance, the provincial executive must, within three months of taking office, submit a general policy programme, to be published in the administrative gazette, while municipalities must append to their budgets and accounts a similar report, which is of course available to the public. The French expert drew attention to various compulsory reports of this kind at the different levels, but said that such reports seldom circulated outside and therefore had only a very limited role in informing the public.
28. Many local authorities publish newsletters (particularly in Estonia, France, Hungary, Latvia and Malta) even though there is no legal obligation to do so. The Finnish expert said that such newsletters were becoming rare as being a somewhat inefficient and obsolescent information supply method, while the French expert said such newsletters were often an exercise in trumpet blowing rather than a source of objective information. The Hungarian expert drew attention to an obligation on local authorities to hold a public hearing for the community at least once a year. The Latvian and Romanian experts stressed that local elected representatives were required to be available at certain times so that the public could consult them.
29. At meetings of the assembly in Albania, Latvia, Macedonia, Malta and Portugal the public are allowed to put questions. Local authorities themselves may introduce such an arrangement, as happens in Austria (at the start of the assembly sitting) Belgium, Denmark and the Netherlands.
4. INSTITUTIONAL STRUCTURE OF REPRESENTATIVE LOCAL DEMOCRACY
4.1 The different types of representative local democracy
30. It is well known in constitutional law that the distinctions which classical theory tries to draw between parliamentary and presidential systems have to do with the relationship between the executive and the legislature and with separation of powers, granted however that the differences between the two forms of democracy are more a question of degree than of kind. In the parliamentary system, the executive is responsible to the assembly and dismissible by it on conditions and with arrangements which vary. In the presidential system, on the other hand, the executive is unmistakably and organically independent of the assembly and answerable to it in far fewer cases, and the procedure involved comes under criminal law rather than the political sphere. A further difference, in theory, between parliamentary and presidential systems is that in the latter the assembly is dismissible by the executive, but not in parliamentary ones. The factors which the experts used in the national reports to differentiate between the two forms of local democracy tend, however, to relate to the method of appointing the executive. The method is regarded as, on the whole, of a parliamentary nature if the executive is elected by the assembly, and of an, on the whole, presidential nature if the executive, like the assembly, is directly elected by the people.
31. As with classification of local democracies, some experts were loath to use the separation of powers as a descriptor of relations between the local executive and the local deliberative body, arguing that these bodies were not really akin to a government and a parliament. As is well known, the separation of powers is very much an issue in the Congress of Local and Regional Authorities of Europe in the context of the executive organ’s responsibility to the assembly (see below). The European Charter of Local Self-Government makes the executive organ “responsible” but does not say how it is to be called to account.
The reference to classify different regimes into parliamentarian or presidential does not take account of a huge diversity of situations at local level and will be only used as a formal reference.
32. Local democracies leaning towards the parliamentary type are found in Albania, Belgium, Croatia, the Czech Republic, Denmark, Estonia, Finland (the expert categorised the system thus on the ground that the local executive can be dismissed by the assembly), Iceland, Ireland, Latvia, Lithuania (with, however, a tendency for the mayor to have a dominant position, depending on political circumstances), the Czech Republic, Luxembourg, Malta, Poland, Romania (as regards counties), Spain, Sweden and France, though according to the Spanish and French experts this is in theory only. Hungary, Italy (since the 1993 reform), Macedonia, Turkey, Ukraine, Portugal and Romania (municipalities only) have local democracy of an, on the whole, presidential type. The parliamentary model seems commoner than the presidential one: the former is found in 18 countries, the latter in only seven, though since the 1990s it has observably spread (four countries in central and eastern Europe in the last decade; Italy went parliamentary in 1993; Ireland, Belgium and Lithuania may move in that direction if planned reforms come to fruition and, in Germany, it applied initially only to Bavaria and Baden Württemberg but spread to the other Länder during the 1990s). There seems no particular pattern to countries’ membership of one or other group except that the parliamentary model seems strong in the European Union save in Italy and Portugal.
33. Northern Europe (the Scandinavian countries and, subject to the reforms under way, the United Kingdom) is in a category of its own, unified by what is known in constitutional law as the assembly system. The practical feature reflecting the assembly’s primacy, as we shall see when we come to analyse the various types of executive organ, is that the assembly appoints a number of executive committees, whose composition is sometimes determined by the balance of political power within the assembly (Denmark and Sweden,). This type of arrangement is sometimes termed “monist” (as opposed to “dualist”), especially in the Netherlands)6, Denmark being a characteristic example. In addition, however, the national experts stressed what they saw as various differences between the members of this group of countries - it was suggested that Finland had a mixed system and Sweden a dualist one.
34. The idea of the local assembly as the supreme organ is well established in many countries regardless of the type of assembly regime. At the local level many national constitutions in fact recognise only the existence of an assembly and say nothing whatever about an executive organ. However, it is in the matter of the assembly’s primacy that quite a few experts see a divorce between the position in legal theory and the situation in actual fact (in particular in Turkey and, on account of the role of city managers, Ireland). This mainly affects parliamentary-type local democracies, with the executive tending to monopolise the actual power at the assembly’s expense, for a number of reasons: the technicality of the matters dealt with, the number of matters dealt with, and the fact that the executive commands the expertise (Belgium, Estonia, Malta, the Netherlands). Spain and France are regarded, in reality and contrary to theory, as having presidential rather than parliamentary systems. In Spain this is because of the system of “closed” electoral lists, so called because they are controlled by the political parties, and in France it is because there is no tradition of the assembly’s supervising the executive.
4.2 The local assembly: its significance and how it functions
35. The importance attaching to the local assembly as an organ of local democracy can be gauged from a series of criteria, which we have tried to rank.
4.2.1 Assembly members’ rights
36. Except in one matter, which would not seem to raise any problems in practice, there are no significant divergences between countries, all of which recognise local-assembly members as having the following rights:
• access to administrative information and documents: assembly members’ right to consult administrative documents has gradually lost significance as the same right of members of the public has progressed. In Cyprus, though, that right does not apply in matters which are not on local authorities’ agendas. In France, in municipalities with populations over 3,500, municipal councillors must be sent a memorandum containing short explanations when they are sent the meeting agendas. In Lithuania the right includes the right to ask local public servants for explanations, and in the Netherlands assembly members are entitled to assistance in their work from local public servants;
• the right to visit local authority administrative services and premises: this is not an official right in a number of countries (eg Austria, Cyprus, Finland, France, Luxembourg, the Netherlands, Romania, Sweden and the United Kingdom) though in practice it seems not to cause any problems - no-one is going to stop assembly members from making such visits if they wish;
• the right to put questions to the executive organ: this is recognised in all countries, with written questions in some cases, oral in others; Belgium has a formal arrangement on the “question time” model (it is a legal requirement with regard to the provinces, and municipalities can adopt it in their rules of procedure), and similarly in Croatia, Finland, France, Italy, Luxembourg, Sweden and the United Kingdom;
• the right to request a meeting of the assembly: the request has to come from at least five members in the United Kingdom, a fifth of the members in the Netherlands, a quarter of the members in some Austrian Länder, Belgium, Spain, Finland and Macedonia, a third of the members in other Austrian Länder, Denmark, France, Portugal, Romania, Sweden and Ukraine) and half the members in Cyprus;
• the right to have an item added to the agenda: this is a right of all assembly members only in Belgium, Denmark, Lithuania, Luxembourg, Macedonia and Malta. Elsewhere the rules on calling an assembly meeting also apply to drawing up the agenda.
37. It is worth noting that in the Netherlands, where greater local democracy is a topical issue, assembly members are entitled to assistance in their duties from local public servants.
4.2.2 Institutional links between the assembly and the executive organ
38. Although they are seldom taken into consideration, the institutional rules governing dealings with members of the executive organ of course affect the assembly. Elected representatives who have duties within the local executive generally continue as members of the assembly and therefore combine two capacities, which is of course the rule in countries with what we have termed an assembly system. The position is different only in Bulgaria, Croatia, Portugal, Lithuania, Luxembourg and the Netherlands. There, such an assembly member gives way to his or her substitute; a reform under which assembly members appointed as deputy mayors step down from the assembly came into force in the Netherlands on 7 March 2002 with a view to introducing more dualism into local democracy.
39. The arrangements for presidency of the assembly are an even more telling indicator of how much autonomy the assembly actually has. The arrangement whereby the head of the executive organ automatically presides appears to be commonest, though in some countries the mayor, while presiding over the assembly, is not really regarded as a member of the assembly and has no vote in it (, the Netherlands and Slovenia, where the legislation has been amended to ease tensions where a mayor and an assembly are on opposite political sides). The oddness of this approach is especially apparent with regard to the assembly’s function of supervising the executive organ, and is something which the debate on improving local democracy should take a look at. A group of 11 countries where a president is elected by the assembly instead of having the head of the executive preside nonetheless forms a substantial exception: it comprises Iceland, Greece, Bulgaria, Albania, Italy, Macedonia, Portugal, Romania (at the municipal level), Sweden (where the elected president is generally an experienced politician, though without any great political influence), the United Kingdom and Ireland.
4.2.3 Public assembly meetings
40. It will come as no great surprise that public meetings of the local assembly are the rule and meetings in camera the exception. The rule is generally imposed by law, and for some countries the experts did not mention any exceptions (France). The logical consequence of this is that assemblies have no discretion to discuss items in camera (Austria, Denmark, Italy, Lithuania). Discussion may, or must, be in camera in a few cases specified in the legislation, particularly when it concerns staff matters (Austria and Belgium), private life or protection of economic interests (Denmark) or citizens’ basic rights (Spain).
41. In some countries, however, assemblies are empowered to decide which items they wish to discuss in camera (Albania, Cyprus, Hungary, the Netherlands - at the request of at least one-fifth of the members present - and Romania), sometimes with special majority requirements (three-quarters in Greece, two-thirds in Belgium and Luxembourg) or solely on certain specified grounds (Belgium, Luxembourg, Macedonia) such as law and order or serious drawbacks of public discussion. In Austria, Belgium, Macedonia, the Netherlands and Romania it is expressly provided that the publicness requirement applies to all discussion of budgets or accounts. Although meetings are in principle public, in some Ukrainian municipalities only journalists are allowed to attend meetings, and members of the public cannot.
4.2.4 Rules governing assembly deliberations
42. The basic rule is of course that decisions are by a majority of the members present, subject to quorum requirements (for the sake of simplicity these were left out of the analysis). In some countries, however, an assembly decision requires a special majority in certain cases:
• three-fifths in Albania in matters regarding public assets or taxation;
• in Spain a two-thirds majority to alter local-authority boundaries, set up sub-municipal authorities or change a municipality’s name;
• in Finland and Ukraine a two-thirds majority to dismiss the mayor;
• in Italy and Slovenia a two-thirds majority to approve the municipality’s statutes;
• in Romania a two-thirds majority for borrowing, management of public or private assets, development programmes, town and regional planning decisions, the voluntary sector, co-operation with other public authorities, gifts and bequests, dismissal of deputy mayors or dismissal of the municipal secretary;
• in the United Kingdom a two-thirds majority for the assembly to override the executive.
• There are also special majority rules in Austria, Croatia, Portugal and Hungary.
4.2.5 Frequency of assembly meetings
43. The annual frequency of assembly meetings is also a good indicator of the importance attached to the assembly as an organ of local democracy. There is no clear European standard as regards the rules applied in Council of Europe countries, as the following information shows:
• at least once a month: Greece, Albania, Belgium (except in the holiday moths of July and August), Cyprus, Denmark (except in July), Spain (in municipalities with populations over 20,000), Latvia, Malta and Romania (municipalities);
• every two months: Bulgaria, Spain (municipalities with populations of between 5,000 and 20,000), Hungary and Romania (counties);
• every three months: Austria, Croatia, France, Iceland, Lithuania, Luxembourg, Macedonia, Slovenia, Spain (municipalities with populations under 5,000) and Ukraine;
• five times a year: Portugal (municipalities);
• there is no legal minimum laid down in Norway, Finland, Italy, the Netherlands, Sweden (where 47 municipal councils met seven or more times in 2000, which the Committee on Local Democracy considered inadequate) or the United Kingdom.
44. It should nonetheless be stressed that this information refers to the minimum number of meetings required by law and that, in practice, local assemblies mostly seem to meet once a month. In addition, to gauge the real importance of an assembly’s work, account needs to be taken of meetings of specialist committees containing only some of the assembly’s members but in some cases, of course, performing extremely important preparatory work for assembly deliberations.
4.2.6 Role of the minority political opposition in local authorities
45. In most countries there is no particular rule to help the opposition exert some influence on the majority. However, this has to be set against the fact that, as we have seen, most countries have a proportional system, with the result that majorities are mostly coalitions and that the opposition are not rendered completely powerless by the system. In Cyprus there is frequently no stable majority at municipal level, which often leaves the executive in search of a majority to approve its proposals. In Finland, too, temporary or ad hoc coalitions are not uncommon. In some countries (Belgium, Denmark Finland, France - in municipalities with populations over 3,500 - and the Netherlands), the composition of assembly committees must reflect the composition of the assembly itself, which guarantees an opposition presence on them and in some cases keeps the opposition fully informed of municipal affairs; in Belgium recent legislation has increasingly sought to ensure that, at the very least, each political group is represented in bodies coming under the municipality (eg public services or intermunicipal activities), and there are special rules aimed at maintaining pluralism by ensuring representation of all ideological or philosophical tendencies in the bodies that manage cultural (in the broadest sense) services and facilities.
46. Five countries stand out for their efforts to give the opposition some leverage:
• although such initiatives may seem unstartling and a matter of common sense, France, since the early 1990s, has been outstandingly innovative with question and answer sessions for municipal councillors, an annual sitting of the assembly devoted to considering opposition proposals, and municipal newsletters in which the opposition have a voice;
• in Sweden several municipalities and counties have introduced a system under which some opposition members occupy full-time or part-time paid posts and have political secretaries paid by the municipality;
• in three countries (Spain, Sweden and France) local political groups receive a degree of support: in Spain it is now an established legal principle that political groups are equal and that each is entitled to municipal funding for its work; the same applies in France as regards equipment, premises and even staff in municipalities with populations over 100,000, and in Sweden as regards financial allocations and premises in municipalities;
• in Italy committees performing supervisory functions must be chaired by the opposition;
• in some Portuguese and Romanian municipalities an opposition member is appointed deputy mayor, and in Iceland a seat on the executive is traditionally set aside for the main minority party.
4.3 The local executive
47. Analysis of the local executive requires terminological clarification to avoid misunderstandings. The word “executive” may cause some confusion in the context of systems of local democracy in Council of Europe member states, particularly as in English usage it is plainly ambiguous. It is therefore important to specify that, in the present report, “local executive” is used in the political sense of the elected representatives with a political mandate who form the local “government”, and not in the administrative sense of the, in principle politically neutral, body of local public servants. We also have to be on our guard in that the same word as used in English and French to describe local democracy in Council of Europe member countries may not, in practice, have the same meaning in the one language as in the other. “Maire” in France and “mayor” in the United Kingdom are the same word but the person they refer to does not at all have the same duties in the two countries.
4.3.1 Existence of an executive organ
48. Odd though it may appear to many observers to whom the executive organ is a familiar institution playing a key role and even, in many cases, a preponderant one in local democracy, like its equivalent at national level, there is some discussion as to whether certain countries really do have a local executive organ, although it is universally accepted that executive functions must be performed by one body or another. Additionally, debate may be fuelled by Article 3.2 of the European Charter of Local Self-Government, which states that the right to local self-government “shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsible to them”: the words “may possess” suggest that the local authority may do without an executive and have a council or assembly as its sole organ.
49. From all the replies from the experts, it would seem that Croatia is the only country with absolutely no executive organ in certain local authorities which nonetheless do not practise direct democracy: in municipalities whose population is under 3,000 the assembly implements its own decisions; municipalities with populations between 3,001 and 10,000 can decide, in agreeing their statutes, whether they will elect an executive organ or have the assembly perform executive functions. In some countries, particularly the Scandinavian ones, there is a view that local authorities have no executive organ. This, for instance, was the view expressed by the Danish expert, who said that there was a mayor elected by the assembly from among its members and who headed the local authority’s administrative services, and that executive authority was wielded by committees composed of between five and seven members appointed by the assembly from among its own members. Interestingly, precisely the opposite opinion was expressed concerning Sweden, which has much the same system; the Swedish expert took the view that Sweden had not one but several executive bodies appointed by the assembly on a proportional basis, the particular feature of the Swedish system being that members of these “executive boards” did not necessarily have to be members of the assembly and were independent of it.
50. There seems no obvious reason why such committees, which, as already pointed out, are characteristic of what we have termed assembly systems (see above), cannot be regarded as executive organs, even though this means that the executive function is often divided among a number of committees, which seems a reasonable explanation of why they have less influence than the executive organs we traditionally meet with in most Council of Europe countries. It may in fact be wondered whether the drafters of the Charter did not have this distinctive type of local executive in mind, as suggested, in Article 3.2, by the plural in “may possess executive organs”. Be that as it may, the commonest model - Ireland is an exception with its unusual city-manager system - is of course the single executive organ (which can be one person or a collegial body) institutionally separate from the assembly.
4.3.2 Dual-function executive organs
51. There are cases where a local authority has functions which it performs on behalf of a higher authority. This organisational approach, which, as regards the way it operates (in terms of supervision, funding, responsibility, etc), is not always markedly different from self-government, is sometimes treated as the distinctive legacy of the Napoleonic model, but it is also an administrative method characteristic of federal systems, and can even be regarded as a particular form of applying the subsidiarity principle to implementation of policy.
52. Although there is no guarantee that the question on this complex and abstract matter was uniformly interpreted by all the experts, countries would appear to divide here into two groups: Belgium, Bulgaria, Greece, France (municipal level only), Germany, Hungary, Italy, Lithuania, Luxembourg, Romania (municipal level only) Spain and Turkey (provincial level only), which all have a dual function system of some kind, and Cyprus, Finland, Iceland, Latvia, Macedonia (with a few very limited exceptions), Norway, Sweden and the United Kingdom, which have not adopted this approach. Ukraine is a worrying very special case from the standpoint of local self-government: 75 to 80% of powers wielded at the local level are regarded as delegated by the central level, and whole areas of local administration fall under both local and central government, which can, for example, result in the head of the local finance department being appointed by the Minister of Finance.
4.3.3 How the executive functions
53. The aim in this part of the report is to see whether the executive is collegial or an individual. The simplicity of the issue is apparent only, as the occasional difficulty in interpreting the experts’ replies testifies. Here, countries divide into two groups of roughly the same size:
• the executive organ is collegial in Austria, Belgium, the Czech Republic (except municipalities where the assembly has fewer than 15 members), Estonia, Finland, Iceland, Italy, Luxembourg, the Netherlands, Norway and Portugal. Decisions, in theory, are taken by vote, except in Sweden, where decisions are by consensus (and where it has been known for four members out of seven (!) to express dissenting opinions);
• the executive organ is an individual - the mayor in Albania, Croatia, Cyprus, France, Hungary, Latvia, Lithuania, Macedonia, Romania, Spain and Turkey, and a manager in the special case of Ireland.
54. The situation is more complex than the individual/collegial divide would suggest: even where there are deputies to the head of the executive (as in France, with the mayor) the executive organ may still be treated as an individual. How the executive organ is classified also depends on how members of the executive assisting the head are appointed and how responsibilities are delegated within the executive. Clearly a system where deputies are appointed by the head of the executive or hold responsibilities which the head has delegated to them7 is indicative of one person’s pre-eminence and the dynamics of the executive organ will be those of a one-person body rather than a collegial one. The terminology relating to persons involved in the executive function may in fact be a further indication - the French word “adjoint” (“deputy”, but in the sense of “auxiliary”) clearly points to the mayor’s primacy. It should likewise be kept in mind that the existence of a genuinely collegial executive organ does not preclude the head’s also having statutory powers of his/her own and which he/she alone exercises, possibly, by virtue of duality of function, on behalf of a higher authority (see above).
4.3.4 How the executive is appointed
55. The crucial distinction to be made here is between the system in which the executive is indirectly elected by the local assembly and the system in which it (or at least its head) is directly elected by the people. The system of indirect election of the mayor is the most traditional and is used in 11 countries: the Czech Republic, Denmark, Estonia, Finland, France, Iceland, Latvia, Lithuania, Norway, Spain8 and Sweden.
56. The other system - direct election of the mayor by the population, a system which has been spreading markedly since the 1990s - is used in 13 countries: Albania, Austria (in six Länder, following a 1994 constitutional amendment allowing it), Bulgaria, Germany (in most Länder), Hungary, Italy (since 1993), Macedonia, Slovenia, Romania, Turkey, Ukraine and the United Kingdom (under the “new arrangements”); the possibility of introducing it is under discussion in federal Belgium’s three regions and Lithuania. In Portugal the whole executive is directly elected by the proportional method, and the candidate who heads the list which receives the most votes automatically becomes mayor. Although the electoral system is usually so arranged that the directly elected executive has a majority (particularly in Italy and Turkey), some difficulties have arisen in a few countries which use direct election (in particular, Hungary and Macedonia), less because of simultaneous election of a mayor and a politically different assembly (although this is not uncommon in Germany) than where tensions later arise within the majority supporting the mayor. Such problems are solved either by legislative adjustment of the system (eg in Slovenia, where the directly elected mayor now has the presidency of the assembly, and in Austria in the Länder concerned), or by political negotiation (eg in Romania, where, however, extreme cases can be resolved by dismissal of the mayor or dissolution of the local assembly, and Ukraine, where the ultimate solution of dismissing the mayor is likewise possible, though the mayor is also empowered to call a referendum on whether the council should be dissolved early).
57. There is a third system, in which the head of the local executive is appointed by central authority. This system is now used in very few countries. In Belgium, the mayor (“bourgmestre”) is appointed by the Crown (ie the internal affairs minister), though the deputy mayors who, together with the mayor, make up the collegial executive are elected by the municipal council from among its members9. The position is the same in the Netherlands. The different methods of centrally appointing members of the executive are worth underlining because they are relevant to analysis of dealings between the assembly and the executive (see below):
• in Belgium, appointment involves an official presentation decision by the municipal council, and in law the candidate presented must, legally, have the support at least of the majority of elected representatives on his/her list and, in practice, of a majority of the municipal council. The provincial governor delivers an opinion on the presentation. The Crown is not legally bound by the presentation, though in most cases the presentation is acceded to so that the mayor appointed has a majority that will support his/her policies. The presentation may be rejected if the candidate does not have the right qualifications, in particular if there is a probity problem (in practice, appointment of anyone who is the subject of legal proceedings is deferred);
• in Luxembourg, appointment involves a written candidature to the minister, but this procedure is unofficial even though the need to appoint mayors who have the support of a majority is felt particularly acutely since censure motions can be brought against the executive in the municipal council;
• in the Netherlands appointment, until recently, was preceded by the municipal assembly’s drawing up an outline of duties and by a recommendation to the Crown from the province’s government commissioner. This procedure, which had long been controversial, was amended by legislation of 16 July 2001 whereby the council recommends two names to the internal affairs minister and may decide to hold a referendum on which of the two candidates should be placed first in the recommendation; the council must heed the result if the turnout exceeds 30%, and the minister must accept it except in special cases. Although the procedure seems similar in these three countries, the Netherlands has a very distinctive system where the mayor is not so much a political figure as a kind of independent senior official who, in the course of a career, may serve in several municipalities, one after the other.
58. It is worth noting that the method of appointing members of the executive is not necessarily the same as for appointing the head of the executive. In Spain, deputies are appointed or dismissed by the mayor, whereas the mayor is appointed by the assembly. In addition to the method of appointing the leader of the executive, these factors no doubt have to be borne in mind in assessing whether the different forms of local democracy in Council of Europe member states tend towards the parliamentary or towards the presidential.
4.4 Relations between the assembly and executive
4.4.1 Apportionment of responsibilities between the assembly and the executive
59. There appear to be hardly any explicit principles governing apportionment of responsibilities, which often involves two lists, some matters being assigned to the assembly, others to the executive. While the assembly generally has responsibility for making the rules, and the executive for implementing them by taking the individual decisions required, there are exceptions to that principle (Cyprus), particularly in staff management (Malta and Belgium) and management of buildings and land (Lithuania), which are matters in which certain detailed decisions may fall to the assembly.
60. The basic thinking is that as the representative assembly is the supreme organ of the local authority, it makes sense for it to deal with the most important matters, such as - obviously - the budget10 and taxes. In some countries, also, any matter not expressly assigned to an organ falls, by default, to the assembly as part of its residual responsibilities, and the executive’s responsibilities are all assigned ones (this is the position, for instance, in Belgium, France, Greece, Luxembourg, the Netherlands and Estonia - since a 1999 amendment of the local authorities legislation - and it also applies in the Scandinavian countries, which have a monist system based on the assembly’s primacy).
4.4.2 Primacy of the executive over the assembly
61. Executive primacy over the assembly seems fairly general. While this is understandable in presidentially-oriented systems where, logically enough, direct election gives the executive an autonomy which is an acknowledged aim, it runs counter to the theory on which parliamentary or monist systems are based. While, in these systems, primacy of the executive seems a not easily avoidable result of the type of relations which a representative organ tends to have which an executive organ, specific reasons for it were also put forward, such as ineffectiveness (France) or non-existence (Turkey) of machinery for assembly supervision of the executive, assembly members’ short term of office (three years in the case of Estonia), the absence of any democratic traditions (Albania) and the characteristics of the city-manager system (Ireland).
62. In some countries there is discussion about shifting the balance of the system rather more towards the assembly, though the executive’s dominant role has not really been called in questions. Examples of this are Spain since 1997, with the “Local Pact” reforms, the Netherlands, where reform is under way following a major report (“Dualisme en lokale democratie”) by a committee of experts, which gave rise to a new law on the dualism of local government that came into force on 7 March 2002, the United Kingdom, following the white paper, “Local Leadership: Local Choice”, and Ireland, where, however, it may be wondered if a switch from the time-honoured city manager system is possible.
Several ways forward are conceivable. The first question is whether the assembly cannot be relieved of some management tasks so as to allow it to concentrate on its supervisory functions. Assembly delegation of tasks to the executive is a possibility worth considering in this context. Here, countries divide into two groups: on the one hand are countries where delegation of responsibilities is prohibited (Cyprus, Greece, Italy, Latvia, Luxembourg, Malta, Portugal, Romania, Slovenia and Ukraine), on the other those where it is allowed (Croatia, Estonia, Lithuania, Spain - here all responsibilities can be delegated if delegation is not explicitly forbidden by law - and Turkey) or where it is even in frequent use (France, Hungary, the Netherlands and Spain for public contracts and staff matters) so as to lighten the assembly’s workload and make local management more efficient, though there are some basic responsibilities (the budget and taxation) which can never be delegated. Secondly, an attempt could be made to promote more effective assembly supervision of the executive. Countries where the local executive must present a political programme at the start of its term of office are few and far between. Countries which have this requirement are Belgium (provinces only), France (regions only), Italy, Albania (municipal level), Luxembourg and the Netherlands (where it happens in practice without being a legal requirement). There are also occasions when the executive must report to the assembly (France, Portugal, Romania, Turkey - which has a politically important start-of-the-year report on the previous year on which a vote is taken - and Ukraine), in particular when the budget is approved (Belgium at municipal level, Finland and Sweden).
4.4.3 The issue of the executive organ’s responsibility to the assembly
63. Nearly all the experts took the view that, in their national systems, the local executive was responsible to the local assembly. In replying affirmatively to the question on this subject, they generally based themselves on a requirement that the executive keep the assembly informed and reply to questions from assembly members (Latvia, the Netherlands), or on the assembly’s being empowered to dismiss the executive (we discuss the mechanisms involved below), or the assembly’s being able to replace the mayor if he/she is grossly negligent or repeatedly contravenes the obligations which the legislation on local government places on him/her (in some countries such as Denmark the dismissal decision has to be ratified by the internal affairs minister and thereafter by the courts).
64. Only a few experts took the view that the executive was not responsible to the assembly (Cyprus, Greece), on the ground that the requirement to inform the assembly or to answer questions from assembly members was too limited to formally amount to genuine responsibility in the parliamentarian sense of this term (Belgium, France). Other experts expressed a different point of view with regard their countries, but it seems that the ambiguity of the notion of responsibility itself is questioned. These differences are indicative of the problems of interpreting Article 3.2, which we will attempt to resolve in the last part of this report. “Non-responsibility” of the executive is grounded in the argument that politicisation is not conducive to sound administration (Belgium), or in the traditional concept of local authorities as administrative rather than political organs (France). The occasional deadlock in which the executive and the assembly may find themselves is resolved by central government, which can step in either to dissolve the assembly or, in those very few cases where its conduct may warrant that, to dismiss the executive (France, Romania).
4.4.4 Calling the executive to account
65. To be carried, a motion of no confidence generally requires only a majority of the assembly (Croatia, Estonia, Finland, Lithuania), the exception being Austria, where the majority required is two-thirds; in Luxembourg, where the system was introduced in 1988, a motion of no confidence can be adopted only if the assembly has rejected the budget. As we are dealing here with bodies traditionally regarded as administrative rather than political, it might have been expected that continuity of management would be a prime consideration. It is surprising therefore that there is a requirement that a censure motion be constructive only in Spain11. Interestingly, the executive can also be called to account politically in some countries where it is directly elected by the people:
• the mayor can be dismissed by a two-thirds majority (three-quarters in cities) of the assembly in Turkey and by a majority of the assembly in Ukraine;
• in the relevant Austrian Länder the carrying of a motion of no confidence needs confirmation by a referendum, in which an absolute majority is necessary;
• in Italy, the carrying of a motion of no confidence by an absolute majority automatically results in the assembly’s being dissolved and therefore in new elections.
5. INTERPRETATION OF ARTICLE 3.2 OF THE EUROPEAN CHARTER OF LOCAL SELF-GOVERNMENT: THE ISSUE OF THE EXECUTIVE ORGAN’S RESPONSIBILITY IN THE LIGHT OF THE WAY IT IS APPOINTED
66. Article 3.2 of the European Charter of Local Self-Government states that the right to local self-government "shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsible to them. This provision shall in no way affect recourse to assemblies of citizens, referendums or any other form of direct citizen participation where it is permitted by statute". This provision, which is neither clarified nor supplemented by any other provision of the Charter, is no less crucial than tricky to interpret as regards the basic question of what the requirement that the executive organ be responsible to the lower council or assembly actually means and entails.
5.1 Must the executive be dismissible by the assembly for the responsibility requirement to be met?
67. The basic question is what degree of responsibility is necessary to meet the Charter requirements. Must the executive be dismissible by the assembly in order to be regarded as responsible to it? As already stated, the Charter gives no explanation and must therefore be interpreted, and this is an outstandingly tricky legal exercise to which several considerations are relevant.
68. prime consideration is the meaning of the term "responsibility" in ordinary usage. The term would appear to have at least two different meanings. Firstly, it can simply refer to a body’s having to account for its acts. This interpretation is supported by the explanatory report to the Charter, which seems to use the word "subordinate" in place of the word "responsible"12. If we give the word this meaning, an executive organ is responsible to an assembly to the extent that it has to comply with the assembly’s decisions and must report to the assembly on its performance of its duties. As thus construed, responsibility is close to the English-speaking world’s concept of accountability. Clearly, though, this accountability is fully meaningful only if the executive is dismissible by the assembly if it fails to perform to the assembly’s satisfaction. This basically political form of responsibility is the second possible meaning of the term. It refers to traditional requirements inherent in parliamentary systems. This second meaning matches the legal concept of responsibility as used in public law with regard to the organisation of authority. Some people will object that it is unlikely that the authors of the Charter used the word in such a strict sense given that that kind of political accountability is foreign, at the local level, to the tradition of administrative law. To this others will respond that that approach is outmoded and that the Charter and the Congress of Local and Regional Authorities undoubtedly view local authorities as political bodies.
69. It is noticeable that, so far, no state has deemed it necessary, in ratifying the Charter, to lodge a reservation with regard to the Article 3.2 requirement of responsibility which would tend to indicate that, from their own viewpoint at least, their legislation is in conformity with the rule. In this respect, member states’ laws, and changes in them, are relevant to interpretation of Article 3.2, although it is scarcely entertainable that the concept of responsibility used in Article 3.2 was intended to have a different meaning according to the particular member state in which the provision is being applied. Such a system would be completely lacking in coherency. We should also add that no account should be taken here of the rules providing for the dismissal of mayors or members of an executive body for illegal or immoral conduct since these are forms of supervisory control over individuals applicable only in particular cases or relatively exceptional circumstances (Denmark, Bulgaria). Because of their limited scope, they cannot really be considered to meet the responsibility requirement. If we leave aside the states that have not yet ratified the Charter13 and, for the reasons given below, those in which the executive is elected directly by the people, the only countries where the assembly cannot dismiss the executive are currently Cyprus, Bulgaria, Denmark, Norway, the Netherlands and the United Kingdom, in other words 6 of the 34 countries that have ratified the Charter. It is tempting to add, with regard to Denmark, Norway and the United Kingdom, that the question of responsibility is not really an issue in these assembly-based systems precisely because there is no clear distinction between the executive and the assembly, although this argument may seem somewhat pedantic to those who argue that, in essence, the assembly’s specialist committees are tantamount to executive organs (see above). It is interesting to note however that the United Kingdom and Norway have begun testing out systems in certain local authorities which reflect a tendency to set up executive bodies that are institutionally distinct from the assembly and one of the precise characteristics of which is increased political responsibility to the assembly.
70. Changes in national legislation seem therefore to be moving in the direction of the second interpretation of responsibility in which it is possible for the assembly to dismiss the executive organ while abiding by any statutory rules on the subject. Logic dictates that this requirement will be all the greater in cases where the local executive was not elected by the local assembly but appointed by central government. At first sight it is difficult to see how this form of appointment might be compatible with local self-government, since the latter is based on the election of representatives by the inhabitants of the local authority and this is precisely what prevents any hierarchical relationship from being established between the latter and central government. Nonetheless, appointment by central government cannot in itself be regarded as a breach of the Charter provided that the legal status of the executive organ affords it the degree of self-government required by the Charter14.
71. The Council of Europe has itself taken up the position that an executive body needs to be politically dismissible in order to be really responsible to the local assembly. Article 2(1) of the appendix (Charter of the Congress of Local and Regional Authorities of the Council of Europe) to Statutory Resolution (2000) 1 reads: “Allowing for exceptions foreseen in a transitory provision of the present Charter, the CLRAE shall be composed of Representatives who shall be chosen from among holders of a local or regional authority electoral mandate”. Just such a transitional provision was in fact adopted and states: “As an exception to Article 2(1), non-elected persons responsible to an elected local or regional body may be Representatives in the Congress, provided they can be dismissed individually by, or following a decision of, the aforesaid directly elected body and that such a power of dismissal is stipulated by law”. This provision, adopted by the Committee of Ministers on 15 March 2000, is undoubtedly relevant to interpretation of Article 3.2 of the European Charter of Local Self-Government. If the Congress of Local and Regional Authorities adopted that approach, it would be falling into line with the European Union Committee of the Regions at whose proposal an amendment was made in 2001 to Article 263 of the EC Treaty. Article 263 had merely stated that the Committee of Regions was composed of representatives of local and regional authorities. The Nice Treaty amended it to state that representatives of local or regional authorities must either hold an electoral mandate or be politically responsible to an elected assembly in order to have a seat on the committee.
5.2 Freedom in principle to decide how to organise an executive organ
72. Under the Charter, the national legislature or, as appropriate, the local authority itself are free to make provision for an executive organ as they see fit. As we have seen, they may decide not to have an executive organ, but if they decide to set one up, as happens in the vast majority of local authorities, they have a wide range of options and can even split the executive function among a number of committees under what we have termed an assembly regime. This freedom of choice matches the many different approaches to setting up an executive in Council of Europe member countries, as summarised in the present report. For example, executive functions, including powers of varying degrees, can be vested in a mayor or a collegial body, or the management of municipal affairs may be entrusted to an administrative service under a politically neutral officer.
73. While councils or assemblies must be elected by direct suffrage, Article 3.2 says nothing about appointment of executive organs. Logically, therefore, the responsibility requirement in Article 3(2) of the Charter cannot be interpreted as ruling out or absolutely requiring this or that method of appointing the executive organ. The fact is that, in principle, the Charter has no requirements regarding the procedure for the appointment of the executive. As will be seen below when we review the various models encountered in the Council of Europe member States, there is no fundamental or obvious relationship between the various methods of appointment and the requirement of accountability to the assembly. The only restriction on this freedom of organisation is set out in Article 3.2 of the Charter and relates to the organisation of the relations between the assembly and the executive. If an executive organ has been set up it must be organised in such a way that it is responsible to the assembly in the way we have just described.
74. All of this applies most obviously to the method of appointment by central government. Although, in the absence of any statutory provision on the matter, the parallelism principle would seem to prevent a local assembly’s dismissing an executive organ appointed by central government, that possibility is not necessarily precluded. There may be provision in statute law allowing the assembly to dismiss a centrally appointed organ. This applies, for example, to Luxembourg’s collège des bourgmestres et échevins under the 1988 revision of the Municipalities Act. A centrally appointed executive organ that cannot be dismissed by the assembly does not meet the Charter’s requirements, not only from the standpoint of responsibility to the assembly but more generally in terms of the existence of local authorities "endowed with democratically constituted decision-making bodies" as referred to in the preamble to the European Charter of Local Self-Government.
75. The same applies to any suggestion that the executive organ has to be elected by the assembly or by the population. Election by the assembly is no guarantee that the executive organ can be dismissed by the assembly: the method of appointing a body does not necessarily have a decisive bearing on the rules governing it. In various Council of Europe member countries, for example, there are bodies which, in law, are totally independent from the authority which appoints them and which, for that reason, are called "independent administrative authorities". It all depends, firstly, on the content of the legislation setting out the rules governing the bodies, and secondly, on the legal environment in those cases where there is no legislative provision. A telling illustration of this is that statute law’s silence on the question of dismissal of the executive organ by the assembly which elected it is generally interpreted as not allowing such dismissal, for local authorities are traditionally treated (as we have pointed out) as administrative entities in which the concept of political responsibility yields precedence to the requirements of continuity of administrative management.
76. The same is true where the executive organ is directly elected by the population. At first sight it might be supposed that this method of appointment would cause problems from the standpoint of the requirement that the executive organ be responsible to the assembly: is it conceivable for a directly elected executive body to be dismissible by an assembly? Odd though it may seem, cases of that kind are met with in practice and we have given a few examples (see above). It should be noted, however, that certain special arrangements are laid down in such cases to protect the overall consistency of the system, such as the requirement in Austria that the assembly’s dismissal decision be put to a referendum or, in Italy, automatic dissolution of an assembly taking such a decision so that the electorate can settle the dispute between two directly elected organs. Be that as it may, a system in which the executive organ is directly elected satisfies the Charter, even where that organ is not dismissible by the assembly. The question whether such a requirement is inherently to be ruled out in the case of directly elected organs would appear to be settled by the second sentence in Article 3.2 of the Charter which states that the provisions of the first sentence – and therefore the responsibility requirement which they contain – "shall in no way affect recourse to assemblies of citizens, referendums or any other form of direct citizen participation where it is permitted by the statute". Admittedly, this popular involvement consists solely in direct democracy of one kind or another; however, the significant point is that a decision of the population makes it possible to dispense with the requirement of responsibility to the assembly. Direct election of the executive organ is undoubtedly a decision of the population, which can be regarded as a form of direct participation in management of local affairs. Apart from the fact that the Charter has very little to say about the organs of local government15, it has become outdated and been outstripped by events on this issue. In 1985, when the Charter was signed and the authors of Article 3.2 set the requirement that the executive organ must be responsible to the assembly, it is likely that they overlooked cases in which the executive was directly elected because they were rare at the time and there was no way of predicting the enthusiasm with which this method has been embraced in recent years. In such cases, the question of the executive’s responsibility is not so much a matter of whether the assembly can dismiss the executive as one of the means by which it can supervise its activities to ensure that it always satisfies the requirements of Article 3.2. After all, it should always be borne in mind that Article 3.2 gives local councils and assemblies priority where it comes to exercising the right to local self-government. A system in which most powers are concentrated in the hands of the executive may be considered to be at variance with Article 3.2 of the Charter even if the executive organ is directly elected16.
1 Representatives of unitary states sometimes underestimate this complication, which was highlighted by the German expert.
2 The dividing line between popular consultation and public enquiries is not always clear.
3 Except three Länder which have provision only for popular consultation.
4 Whether because the experts did not mention them or because there is no systematic compilation of them.
5 Except in the appointment of mayors, for which referendums are allowed. A constitutional amendment to bring in referendums is planned for 2005.
6 A monist setup is also characterised by the assembly’s holding all local powers not explicitly vested in the executive organ.
7 The French expert states that local assemblies responsible for electing deputy mayors are powerless to influence the scope of the responsibilities which the mayor delegates to them.
8 Except in municipalities with populations under 100, where he/she may be directly elected by the people, the mayor is elected by an absolute majority of the assembly from among those persons heading the political parties’ electoral lists; if there is no absolute majority, the councillor heading the list which received most votes is proclaimed mayor.
9 The governor is similarly centrally appointed, as the representative of central authority in the province, whereas the mayor is primarily a municipal institution.
10 The Ukrainian expert pointed out that decisions of the assembly were very general, even in the financial sphere, where the budget was not detailed and often came to a mere two or three pages.
11 There the mayor can also bring a motion of no confidence when certain important decisions are being taken.
12 According to the explanatory report “This right (to local self-government) normally entails a representative assembly with or without executive bodies subordinate thereto, …”
13 It would seem logical to take no account of any states which have merely signed the Charter, or indeed states which have not even signed it, as such states have not undertaken to comply with the Charter’s principles in their law and therefore conclusions as to how the Charter is to be interpreted can hardly be drawn from their legal systems.
14 In other words that the organ cannot be regarded as being more representative of a higher-level authority than the local authority and that it must be able to act outside the hierarchical authority of central government so that its actions are supervised only to the degree authorised by Article 8 of the Charter.
15 Article 3, which is the only article to deal with the subject, goes under the extremely general heading of “Concept of local self-government”.
16 To gain a better understanding of this new problem, which raises the question of the balance to be struck between local authority bodies where the executive is elected directly by the inhabitants, it would be a good idea to propose holding a European conference during which elected representatives and experts from various countries which have recently decided to adopt this system would have the opportunity to describe their experiences with a view to providing details of the legal and practical consequences of this type of reform and highlighting its advantages and drawbacks compared with the traditional system of appointment of the executive by the assembly.