MCL-17(2011)Inf.
Council of Europe Conference
of Ministers responsible
for Local and Regional Government
17th Session, Kyiv, 3 - 4 November 2011
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Document for information |
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The European Charter of Local Self-Government and the impact of Community law on local authorities in member states |
Report for the European Committee on Local and Regional Democracy
and the Congress of Local and Regional Authorities
By
Gérard MARCOU and Jean-François AKANDJI-KOMBÉ,
Professors at the Sorbonne Law School, Paris I Panthéon-Sorbonne University
Contents
Introduction 5
I. The principle of Member States’ institutional autonomy:
a fundamental principle of the European Union 8
A) The principle and its limits 8
1) Institutional autonomy, an essential principle and a right
of the state 8
2) A principle with varied implications 9
3) A principle with limited scope but in no way affecting state
powers in respect of local government 11
B) The European Union’s non-empowerment where local authorities
are concerned 12
1) Observance of substantive Communicity in the exercise
of powers 12
2) Texts of derived law relating to local authorities confirm
respect for institutional autonomy 14
3) Strengthening of the principle of member states’ institutional
autonomy by the Treaty of Lisbon 16
II. Exclusiveness of Member States’ international jurisdiction
in respect of local authorities 17
A) The EU’s lack of international jurisdiction in the ambit of the
Charter of Local Self-Government 18
1) The Unions’ lack of implicit jurisdiction in the ambit of the
Charter of Local Self-Government 18
2) Residual propositions 19
B) Member States’ exclusive international capacity in respect of their local
authorities 20
1) Exercise of states’ international jurisdiction in respect of local
authorities and EU law 20
2) The example of bilateral or multilateral treaties on
transfrontier co-operation between Member States 21
C) Member States’ obligations regarding the application of Community law
do not detract from their obligation to comply with the Charter of Local
Self-Government 22
1) An obligation in domestic law 22
2) The Charter as the source of an obligation of conduct for
Member States in the functioning of the EU 23
3) Local and regional authorities’ participation in certain procedures
in the Community framework does not release states from their
obligation towards the Charter in the Community framework 25
D) The potential of the Union’s common foreign and security policy where
local authorities re concerned 26
III. Proposals for ensuring compliance with the Charter of
Local Self-Government in the policies of the European Union 27
1) Exclusion of the EU’s accession to the Charter 27
2) Recourse to Article 351 TFEU 27
3) Role of the Committee of Ministers of the Council of Europe:
examination of an annual report prepared by the CDLR on the
development of Community law as regards its impact on the
honouring of the Charter undertakings 28
4) Bring the impact of Community law within the scope of the
machinery for monitoring the Charter’s application 28
5) A memorandum of understanding between the EU and the
Council of Europe introducing evaluation of the proposals for
directives or regulations prepared by the Commission in terms
of their impact on member states’ compliance with the Charter 29
6) Role of the Congress of Local Authorities: the impact of Community
law on the application of the Charter could give occasion to restore
this organ to its primary mission of ensuring compliance with
the Charter 29
Introduction
The extension of Community powers and the proliferation of European Union policies have resulted in steady expansion of the norms of Community law,[1] which apply in member states to all subjects of law under their jurisdiction. This involves regulations of the Parliament and the Council, which are directly enforceable; directives whose provisions are sufficiently precise to generate rights for nationals of member states and be relied on in domestic courts; decisions by the Commission, which may concern decisions or conduct of those subjects of law in the areas where it has the power to act, eg in the field of competition; and the many communications which pave the way for the development of secondary law.
As is true of all other subjects of law within European Union member states, local authorities must abide by Community law in areas where its norms apply to them and may also rely on it to their benefit or in their defence in domestic or Community courts, for instance with regard to state aid. Local authorities are not the same as other subjects of law, however. In view of the obligation of loyalty which requires states to ensure the uniform application of Community law throughout their territory, local authorities are public authorities in respect of whose acts member states may be held liable in Community courts and which, like all administrative bodies, are required to give the application of Community law precedence over conflicting domestic provisions. As the Court of Justice has ruled, when a provision in a directive is unconditional and sufficiently precise to be relied on by individuals, not only domestic courts but also “all organs of the administration, including decentralised authorities such as municipalities, are obliged to apply it”, in other words, “administrative authorities, including municipal authorities, are under the same obligation as a national court to apply” it (ECJ 22 June 1989, “Fratelli Costanzo Spa v. Comune di Milano”, Case C-103/88, paras 32 and 33). Community law does not therefore make any distinction between local authorities and other authorities within state administrative bodies. This position is explained by the nature of the European Union, which is a union of states, or a “Staatenverbund”, to use the term employed by the German Constitutional Court; only member states have obligations under the treaty towards the Union and the other member states.
All member states of the European Union have, however, also signed and ratified the European Charter of Local Self-Government of 15 October 1985 within the context of the Council of Europe. The Charter is an international treaty under which the signatory states undertake to abide by a number of fundamental principles concerning the status and powers of their local authorities. They entered into these undertakings because they believe that “local authorities are one of the main foundations of any democratic regime” (Preamble to the Charter, para 3).
These undertakings tie in with the principles on which the European Union is founded. According to the preamble to the Treaty on European Union, the signatory states declare that they draw inspiration from the “universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law”. In this context, within the European Union, it is therefore entirely legitimate for member states to ensure compliance with their commitments regarding local self-government, which is seen as “one of the main foundations of any democratic regime”.
It should be noted here that the Charter of Local Self-Government does not in any way set out an organisational model for states or local government which states parties must follow. The principles which it lays down may be implemented in constitutional and administrative systems which vary greatly but which share common values. Even only superficial comparison of the reforms which have affected local government systems in the signatories to the Charter in recent decades suffices to show that its application has not resulted in harmonisation of the systems.
In the functioning of the European Union, however, it seems that member states have not paid sufficient attention to the effects of Community policies and norms on local self-government, ie on the commitments they entered into upon ratifying the Charter of Self-Government. Yet according to the Committee of the Regions, 50% of the legislative acts of the European Union affect local authorities. This concern is not entirely new. It should be noted that it was at the time of the Single European Act that the subsidiarity principle was brought to the fore again – at the behest of the German Länder, which were worried about their constitutional rights being weakened by the process of European integration. The same question arises today concerning local authorities.
The concept of local self-government is defined in Article 3 of the Charter:
“1 Local self-government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population.
2 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.”
The concept therefore comprises both freedom of action and institutional autonomy based on the democratic principle. The Charter also defines the scope of local self-government (Article 4, paras 2 to 4):
“2 Local authorities shall, within the limits of the law, have full discretion to exercise their initiative with regard to any matter which is not excluded from their competence nor assigned to any other authority.
3 Public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen. Allocation of responsibility to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy.
4 Powers given to local authorities shall normally be full and exclusive. They may not be undermined or limited by another, central or regional, authority except as provided for by the law”.
Paragraph 2 corresponds to what is often called the “general competence clause” and paragraph 3 to the principle of subsidiarity. The purpose of paragraph 4 is to protect local powers; however, the paramount nature of Community law can have the effect of resulting in limits of this kind which are outside the forms laid down by the Charter.
Article 9 of the Charter concerns the financial requirements for local self-government. Under paragraph 2, the financial resources of local authorities must be “commensurate” with their responsibilities and, under paragraph 4, the financial systems on which these resources are based must be of a sufficiently diversified and buoyant nature to keep pace with “the real evolution of the cost of carrying out their tasks”. Yet the implementation of Community law often results in increased costs for local authorities.
Member states’ obligations under the Charter of Local Self-Government necessarily therefore are relevant in the functioning of the European Union and the new provisions introduced by the Lisbon Treaty provide a new basis for this interpretation. These are obligations of the states, not of the European Union as such, as the principle of the institutional autonomy of member states means that they have sole competence as regards the system and the functions of local government (I). The European Union also does not have international competence concerning local authorities in member states, which again have sole competence here, meaning that the European Union could not itself undertake to abide by the Charter; member states’ obligations to comply with Community law do not therefore detract from their obligations to comply with the Charter of Local Self-Government (II). To improve the protection of local self-government within the European Union, monitoring by the Council of Europe of the application of the Charter by states must be extended to the policies of the European Union; that is the aim of the recommendations which will be made (III).
I. THE PRINCIPLE OF MEMBER STATES’ INSTITUTIONAL AUTONOMY: A FUNDAMENTAL PRINCIPLE OF THE EUROPEAN UNION
The principle of Member States’ institutional autonomy is a fundamental principle of the European Union. It cannot disable the obligation to ensure uniform application of Community law, but justifies Member States’ invoking the Charter of Local Self-Government against provisions of Community law that would interfere with local self-government (A). A scrutiny of Community law reveals that the provisions directly affecting local authorities set aside the institutional aspects, placed in the exclusive remit of the state authorities; the Treaty of Lisbon strengthened this reservation of state jurisdiction (B).
A) The principle and its limits
Because it is fundamental itself while also linked with other cardinal principles of Community law, the principle of institutional autonomy, benefiting the state alone, though nurtured by fresh implications has at the same time undergone a growing limitation of its scope for the sake of the requirement that the common law be effective and efficacious, without this causing a transfer from the state governments to the Union of authority to organise local government.
1) Institutional autonomy, an essential principle and a right of the state
Established as early as 1971 by the CJEC (11 February 1971, Fleischkontor, case 39/70; 15 December 1971, International fruit company, cases 51/71-54/71), member states’ institutional autonomy is affiliated to “the general principles on which the institutional system of the [Union] is based and which govern the relations between the [Union] and Member States” and to what is known as the principle of sincere co-operation laid down by Article 4 § 3 TEU (CJEC, 21 September 1983, Deutsche Milchkontor, case 205/82-215/82). Though not yet expressed in terms of case-law, it is no less definitely linked with the stipulation of respect for Member States’ national identity (Article 4 § 2 TEU) and with the principle of subsidiarity (Article 5 TEU). On the whole, institutional autonomy truly has the character of an essential principle of Community law, and could be virtually perceived as a fundamental right of Member States too.
This construction of the principle is mainly conducive to the implementation and application of Community law which, as we know, rest primarily with state authorities in a Union which is administratively decentralised to a large extent. In this context, institutional autonomy, in the same way as constitutional autonomy in international law, essentially expresses the freedom secured to states as to the choice of the structural and procedural arrangements for discharging their duty of execution. Still, it is also plain that in its scope the principle exceeds the ambit of execution of Community law, and also finds an earlier application to the participation of states in the process of framing that law.
Finally, it is important to recall that the autonomy in question belongs to states. The law of the Union contains no stipulation of this type in favour of local authorities. Of course, at least one CJEC judgment could cast doubt on this, where the Court takes pains to specify the criteria of these authorities’ “autonomy from the institutional, procedural and economic points of view”. Accordingly, the European court holds that “In order that a decision taken by a regional or local authority can be regarded as having been adopted in the exercise of sufficiently autonomous powers, that authority must first have, from a constitutional point of view, a political and administrative status which is distinct from that of the central government. Next, the decision must have been adopted without the central government being able to intervene directly as regards its content. Finally, the financial consequences of a reduction of the national tax rate for undertakings in the region must not be offset by aid or subsidies from other regions or central government” (CJEC, 3rd chamber, 11 September 2008, Unión General de Trabajadores de La Rioja, cases C-428/06-434/06).
But such an interpretation would discount the rather peculiar context of this case. The Court was asked whether the tax facilities granted by a local or regional authority to the enterprises established within its boundaries should be regarded, because they did not benefit enterprises established elsewhere in the territory of the state, as state aids prohibited by Article 107 of the TFEU. Now, according to the case-law, the reference framework for determining the effects of aid liable to affect competition in the internal market is not necessarily the territory of the state. It may also be the framework of an infra-state authority, provided that it enjoys sufficient autonomy. It was in this and only this perspective that the CJEU was prompted to state the criteria mentioned earlier which, significantly, are not derived from the law of the Union but inferred from the national constitutional rules. So this case-law may be construed as confirming the institutional autonomy of the state.
This exclusive relationship with the state has its ultimate expression, moreover, in the Community sanction for disobeying the law of the Union. Thus, whatever the authority or entity in charge of implementing or enforcing this law at domestic level, the state alone will be answerable to the CJEU for any breaches committed, without being able to invoke as a vindicating fact the responsibility devolved on another entity than itself.
2) A principle with varied implications
The principle of autonomy has various facets which have resulted in a distinction being drawn between institutional autonomy in the strict sense and procedural autonomy.
The former essentially concerns the apportionment of powers at domestic level for the purposes of implementing the law of the Union. As the CJEU pointed out very early on, “when provisions of the treaty or of regulations confer powers or impose obligations on Member States for the purposes of the implementation of Community law, the question of how such powers are to be exercised and whether the states may entrust the implementation of such obligations to specific national authorities is solely a matter for the constitutional system of each state” (International fruit company judgment, loc. cit.). This reference to “authorities” is to be given a broad construction as meaning both legal entities to which the power may be devolved and the authorities which will be empowered to act on their behalf. For example, regarding the implementation of directives, this freedom will determine the choice not only of the state institution – Government or Parliament – responsible for transposition, but of also the tier – state or infra-state – whose duty it will be to take the requisite measures for this purpose. Concerning precisely the latter case, the CJEU re-emphasises that “each Member State is free to delegate powers to its domestic authorities as it considers fit and to implement the directive by means of measures adopted by regional or local authorities” (CJEC, 25 May 1982, Commission v. Netherlands, case 96/81). Thus, what is true for the implementation of directives is also true for the internal implementing measures which the regulations may require, having regard to the CJEC precedent that “the fact that a regulation is directly applicable does not prevent the provisions of that regulation from empowering a Community institution or a Member State to take implementing measures”, the main inference of which is, “in the latter case the detailed rules for the exercise of that power are governed by the public law of the Member State in question” (CJEC, 27.9.1979, Eridania, case 230/78).
Autonomy also presupposes, apart from freedom in the internal apportionment of powers, freedom to settle the rules which are to govern official actions for implementing the law of the Union and the surety for its application. This is what is conventionally termed procedural autonomy. It firstly concerns the administrative governance of acts carried out by the national authorities: competence, type of act, drafting procedure, stipulations of content, etc. But it also concerns the system of “sanctions”, that is all means of legal constraint which in each Member State ensure compliance with the law in the event of conflict over its application. This aspect is indubitably the one which has generated the most extensive case-law. The main outcome is that the rules of form and substance for ensuring full, due application of the law of the Union, and for penalising certified infringements of this law, are in principle those of national law.
3) A principle with limited scope but in no way affecting state powers in respect of local government
The principle whose configuration we have established is not absolute, however. Autonomy is not sovereignty. Thus states enjoy the freedom described above only within certain limits set by compliance with the duty of sincere co-operation stipulated in the treaties as well as by preservation of the effectiveness of Community law. In this way, over recent decades growing regulation of state autonomy has been witnessed. This is carried out by means of acts of the institutions and by judicial process. Case-law most of all has singled out the principles from which these limits are derived. Generally speaking, two sets of considerations, of graded importance, are mainly contemplated by the case-law.
The first set consists of what is conventionally termed the stipulation of equivalence, that is the obligation imposed on states to “ensure … that infringements of Community law are penalised under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance” (CJEC, 21 September 1989, Commission v. Greece, case 68/88; 24 October 2009, Danske Slagterier, case C-445/06). It must be so, both for the protection of the rights which individuals derive directly from the law of the Union and in the matter of action to establish liability for infringement of Union law (eg CJEU, 26 March 2010, Transportes urbanos y servicios generales, case C-118/08).
The second set of considerations contemplated by the case-law concerns the effectiveness and the operability of Community law, whose requirements exceed those of the principle of equivalence. Indeed, effectiveness and operability require Member States, especially national justice, to set aside any domestic procedural provision that might prevent the common law from having all its effects and being fully implemented on the national territory, including cases where such a procedural provision was mandatory for national law. Thus it is no accident if, pursuant to the principles stated above, the judge-made European construction of a real judicial enforcement system for Community law has been witnessed. This system of course by no means extends to all aspects of the assurance that the law will be applied, since it only embodies the requisites for effectiveness and operability of European law and is applicable only where national law does not afford equivalent or stricter protection. However, it appreciably narrows, in important respects, the states’ theoretical margin of autonomy.
At all events, that is the effect attaching to the assertion by the CJEU of a right to a judicial remedy (notably CJEC, 15 May 1986, Johnston, case 222/84; 25 July 2002, Unión de pequeños agricultures, case 50/00 P; or 13 March 2007, Unibet, case C-432/05), of a power vested in the national courts to take such provisional measures as they deem expedient in respect of any act of domestic law (CJEC, 19 June 1990, Factortame, case C-213/89; 21 February 1991, Zuckerfabrick, cases C-143/88 and C-92/89; 24 October 2001 (order), Dory, case C-186/01 ), to apply specific rules to the public authority’s liability for beach of the law of the Union (CJEC 5 March 1996, Brasserie du pêcheur and Factortame, joined cases C-46/93 and C-48/93; 26 March 1996, British Telecommunications, case C-392/93; 4 July 2000, Haim, case C-424/97), to raise of their own motion allegations of infringement of the law of the Union (cf. CJEC, 11 July 1991, Verholen, cases C-87/90-89/90; 27 June 2000, Oceano grupo editorial, cases C-240/98 to C-244/98; 7 June 2007, Van der Weerd, cases C-222/05-225/05), or to apply a specific res judicata regime (CJEC, 3 September 2009, Fallimento Olimpiclub, case C-2/08), all rights and powers being directly founded on the law of the Union.
The fact remains that on close scrutiny, the upshot of these limitations is not interference by Community law in the states’ institutional arrangement and resultant impact on the status of local authorities. Being essentially focused on the procedural aspects of institutional autonomy, the Community system discussed above can only influence their exercise of powers of their own under national law. This is amply borne out in case-law, but above all in derived law.
B) The European Union’s non-empowerment where local authorities are concerned
To the extent that they exercise their own powers, local authorities must abide by the substantive Community law relating to them. On the other hand, Community law leaves local government institutions and powers in the remit of Member States.
1) Observance of substantive Community in the exercise of powers
In the exercise of their powers, local authorities are subject not only to the law but also to Community law. This stipulation was accepted by the drafters of the Charter of Local Self-Government. The Explanatory Report to the Charter states under paragraph 1 of Article 4: “an exception applies in the case of Member States of the European Community insofar as Community Regulations (…) may stipulate application of a specific measure at a given level of administration.”
A good example of this is provided by the water directives. In almost all European countries, organising or ensuring the supply of water for human consumption is the responsibility of the municipalities and their groupings. They are thus required to comply with the standards laid down by Directive 98/83/EC on the quality of water intended for human consumption, in particular the parametric values determined by Annex I. However, the directive contains no institutional provision, especially where it provides that “the competent authorities or other relevant bodies shall decide what action … should be taken” to prohibit or restrict consumption of water posing a potential heath hazard (Article 8.4). Nonetheless, accommodation of the differences between the regions of the Union must not detract from “the establishment of the framework of laws, regulations and administrative provisions laid down in this Directive (preamble, para. 4). Furthermore, Directive 2000/60/EC establishing a framework for Community action in the field of water policy has institutional implications. It provides for the establishment of river basin districts for which member states identify “the appropriate competent authority”, which frames a plan of management, and for the “active participation” of all parties concerned (Articles 3, 13 and 14 in particular). However, the directive leaves each Member State to determine the competent authority, although the preamble affirms that the success of the directive relies on “close co-operation and coherent action at Community, Member State and local level”, as well as on involvement of the public (para. 14).
It may be inferred from this example that local authorities are subject to the substantive law of the European Union to the necessary extent, according to their responsibilities defined by the Member State’s legislation. Accordingly, extension of the local government remit makes local authorities more alert to the application of Community law. But their position vis-à-vis the stipulations of Community law is no different from their position vis-à-vis national law, or from that of the other entities at which the stipulations of Community law are directed.
In so far as local authorities (or their corporations as in the United Kingdom) are legal entities, addressees of a decision or for whom a decision of a Union organ is “of direct and individual concern”, they may lodge a petition with the Community court on the basis of Article 263 of the Treaty on the Functioning of the European Union, as might be done by an enterprise or any other subject of law. It should be noted that Article 263 features an extension of the right of petition compared to Article 234 (para. 4) of the parent treaty on the European Community. Indeed, it adds the possibility for any natural or legal person to institute proceedings “against a regulatory act which is of direct concern to them and does not entail implementing measures”. The same would apply to a local public company with legal personality. This type of action usually concerns government grants, but a local authority does not yet seem to have availed itself of the new Article 263.
Local authorities are still more directly concerned by the Community legislative acts which regulate competition in sectors hitherto subject to a system of public monopoly or of conferment of sole rights. But they have been unequally affected depending on their purview. For example, the impact of Regulation 1370/2007/EC of 23 October 2007 potentially affects all local authorities; after lengthy negotiations, local authorities retain the possibility of operating on their own account the public passenger transport services or assigning them, competitively and without the possibility of appeal, to an internal operator (Article 5). Conversely, in the energy sector, not all local authorities, in the European Union, are responsible for electricity or gas. Where responsible, they are henceforth subject to the sector’s rules of competition as regards the provision and regulation of access to the networks (cf. Directives 2009/72 and 73). Finally, in the field of electronic communications, the current issue of switching to “broadband” causes local authorities to fear that the rules of competition may hamper their initiatives in the least attractive territories for private operators (cf. French Senate report on the digital coverage of the territory, July 2011, no. 760).
In these various areas, European Union’s priority goal is the attainment of the single market relying on the regime of competition. In the framing of Community norms, another consideration should therefore be the implications of these measures for the independence of local authorities in discharging their responsibilities, according to the principles enshrined in the Charter of Local Self-Government.
2) Texts of derived law relating to local authorities confirm respect for institutional autonomy
Although the European Union has no jurisdiction whatsoever over the organisation and the powers of local authorities, there are several legislative acts directly concerning them. These texts refer to the constitutional and administrative organisation of each state.
a) Nomenclature of territorial units for statistics
The European Community long since established a Nomenclature of territorial units for statistics (NUTS) whose purpose, according to the regulation currently in force (1059/2003 of 26 May 2003, subsequently amended in line with the enlargement of the Union), is to allow the production of harmonised regional statistics. The nomenclature consists of three rank-ordered levels, not administrative units and not destined to become so. According to Article 3, “existing administrative units within member states shall constitute the first criterion used for the definition of territorial units”. A territorial unit may correspond to an administrative unit or comprise several administrative units of a state to arrive at territorial units which are comparable according to the population thresholds defined for each of the three levels by the Regulation. A state’s territorial reforms may prompt redefinition of its territorial units for statistics, not the reverse. It happens that certain Member States take account of territorial units for adjusting to the needs of the European Union’s regional policy (Greece, Romania…) but by their own decision, not pursuant to a political orientation of the European Union.
b) “Partnership” in the regulations on the structural funds
Since 1988, the successive regulations on the structural funds have made “partnership” one of the guiding principles in the implementation of the European Community’s regional policy at the institutional level. According to Article 11 of Regulation No 1083/2006 reiterating the terms of Regulation No 2052/1988), partnership is defined as close co-operation between the Commission, the Member State concerned and the competent authorities which it designates at the national, regional or another level. Since 1988, the object of partnership has remained the same: the preparation, financing, monitoring and evaluation of actions; however, since the 1999 regulation it has applied to each stage of programming.
Whereas in the early formulations, the organisation of partnership was entirely subject to the discretionary power of the Member State, the texts became more binding while upholding the principle of institutional autonomy. The 1993 regulation introduced “economic and social partners” into the partnership, and that of 1999 threw it open to “any other appropriate body”.
The 2006 regulation still allows Member States the greatest freedom in organising the partnership: “Each Member State shall organise, where appropriate and in accordance with current national rules and practices, a partnership with authorities and bodies such as:…”; it nevertheless adds “urban” authorities to local and regional authorities. But since the 1993 regulation, the concept of partner has implied that authorities distinct from the state are meant, and regional or local authorities can only be decentralised authorities. According to its terms, reiterated in the subsequent regulations and particularly that of 2006: “The partnership shall be conducted in full compliance with the respective institutional, legal and financial powers” of the partners (2006 regulation: Article 11, para. 2), which is binding on the state from the moment when it has determined the partners. But whereas under Article 15 of the 1999 regulation the partners only gave an opinion on the plans that the Member State submitted to the Commission, with which lay the decision giving effect to them, the 2006 regulation provides that “the national strategic reference framework” shall be prepared by the Member State “after consultation with relevant partners” (Article 28) and that each “operational programme” shall be prepared by the Member State “in consultation with the partners referred to” in Article 11. Other provisions arrange for the partners’ participation in the monitoring committees of the structural funds.
It can therefore be asserted that the partners’ place in the attainment of goals pursued by the structural funds has been progressively consolidated. It carries certain rights for the designated partners (the partner categories, according to the terms of Article 11 of the 2006 regulation), particularly as regards respect for their functions held as of right. On the other hand, there does not exist in Community law for any regional, local or other authority a right to be designated as partner within the meaning of Article 11, which is consistent with the principle of Member States’ institutional autonomy. If such a right were to exist, it would have to be of national origin. But consolidation of the partnership is in keeping with the spirit of the Charter of Local Self-Government.
c) Territorial co-operation
The European structural funds lent decisive impetus to co-operation between local authorities of different countries, the possibility of which is provided for in the Charter of Local Self-Government (Article 10.3) as a component of local self-government. Local authorities can thus participate in the attainment of “an ever closer union among the peoples of Europe”, according to the famous formula in the Preamble to the Treaty of Rome.
Regulation No 1083/2006 gives new scope to what it now calls “territorial co-operation”. But according to Regulation No 1080/2006 on the ERDF, this co-operation has a functional and material, not an institutional, approach. The operational programmes can associate not only local or regional authorities but also state administrations and private partners.
Regulation No 1082/2006 instituting the “European grouping of territorial co-operation” (EGTC) is the legal instrument provided to serve as a basis for certain territorial co-operation programmes (its members must be located in the territory of Member States). The preamble recalls the Council of Europe acquis in the field of transfrontier co-operation and points out that the frameworks established by that body of achievement (essentially the 1980 Madrid Convention and Additional Protocol) are not to be circumvented, nor are common rules for this co-operation to be determined (para. 5). The EGTC is endowed with legal personality and performs the functions assigned to it by its members which, however, “shall be limited to the facilitation and promotion of territorial co-operation…” (Article 7.2); it may manage funds (Article 6), but cannot exercise powers of discipline or regulation. The creation of an EGTC is never an obligation, but the initiative of creating it belongs to its potential members, hence to the local authorities as well as to states or federate or regional powers (Article 4). Local authorities may therefore take the initiative. The authorities of the Member State must give their consent, in the light of national law (Article 5.3) and the assignments given to the EGTC must all fall within the competence of every member “under its national law” (Article 7.2).
3) Strengthening of the principle of member states’ institutional autonomy by the Treaty of Lisbon
The new provisions introduced by the Treaty of Lisbon strengthened the principle of institutional autonomy. According to Article 4.2 TEU, in fact, “The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government (…)”. This phrasing is borrowed from the draft treaty establishing a constitution for Europe (Article I-5). It is the first treaty expression of recognition of local and regional authorities, but is explicitly associated with the “fundamental structures, political and constitutional, of member states”, which it behoves the Union to respect. It follows that “local and regional self-government” is the sole responsibility of member states.
The provisions also introduced by the Treaty of Lisbon concerning services of general interest can likewise serve as props to local self-government. The reservation on respective powers of states in Article 14 of the Treaty on the Functioning of the European Union benefits local authorities according to the national legislation. So does the one in protocol no. 26 on services of general interest, to the effect that treaties in no way detract from Member States’ power to provide, organise and have performed non-economic services of general interest.
In conclusion, the principle of Member States’ institutional autonomy signifies an absolute reservation of states’ competence to settle their territorial organisation and the status and powers of their local authorities. Community law acknowledges this competence, as indicated by the cautious nature of its provisions where they have an institutional dimension. The outcome is that it rests with the European Union Member States to look after the observance of the Charter of Local Self-Government, not only in the internal order and in the implementation of Community policies, but also in the functioning of the European Union
II. EXCLUSIVENESS OF MEMBER STATES’ INTERNATIONAL JURISDICTION IN RESPECT OF LOCAL AUTHORITIES
Once it has been established that, in the internal legal order of the Union, the powers implicit in the obligations embodied in the European Charter of Local Self-Government belong not to the Union but to the states, and that they are even corroborated by the principle of state institutional autonomy, it still remains to be ascertained whether or not the Union holds powers in the international order that might affect the implementation of the Charter or even allow it to accept the obligations arising from the Council of Europe instrument in place of its Member States.
In that respect, one cannot help observing that the somewhat restrictive principles governing the determination of the Union’s capacity to conclude international treaties do not permit such an eventuality to be contemplated. It will be inferred from this, firstly, that the states retain undivided power to make international commitments in the fields under consideration and, secondly, that the obligation for member states, also parties to the Charter, to abide by it remains unmitigated and should be duly allowed for in their participation in the Union. Even so, it cannot be completely ruled out that the powers which states hold in respect of local government are intertwined, when exercised at international level, with those of the Union, or that those borne by the Union in respect of foreign policy, security and defence have some effect on the organisation of local government.
A) The EU’s lack of international jurisdiction in the ambit of the Charter of Local Self-Government
Article 216 TFEU, systematising the case-law of the CJEU, provides that “The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope”. There is no need to dwell on the first possibility. The constituent treaties do not contain the definition of any explicit international authority concerning the institutional organisation of states. Consequently, the only remaining possibility to be raised is that of implicit or implied powers, together with the outcome for the Council of Europe Charter in cases where states have ratified it before acceding to the Union.
1) The Union’s lack of implicit jurisdiction in the ambit of the Charter of Local Self- Government
The case-law of the CJEU as it stands lately shows that in the absence of express conferment of powers in the constituent treaties, the Union’s authority to conduct international dealings may implicitly follow from other provisions of the same treaties or from acts of the institutions, but also that it may have its source in the internally oriented powers secured to the EU, or in the fact that that the agreement to be concluded is liable to affect the operation of internal rules. To ascertain whether or not the Union has the capacity to make international undertakings on any such account in the area under consideration here, the best method is still the one recommended by the CJEU, that is to make a “specific analysis of the relationship between the agreement envisaged and the Community law in force” (Opinion No 2/00 of 6 December 2001).
As the object of the Council of Europe convention is known (see introduction), it need not be further discussed except to recall that it solely concerns establishing and adjusting the status of local authorities, hence the territorial organisation of the state.
This statement of the object of the instrument suffices for us to realise that there is little or no connection between it and the law of the Union. As was demonstrated above (I-B), primary law and derived law contain no provision enabling the institutions of the Union to act, on an internal level, in the two areas mentioned (establishing and adjusting the status of local authorities).
The conclusion is therefore that the conditions for the Union to exercise authority, even if shared with member states, to make international commitments are not fulfilled.
2) Residual propositions
a) The undertakings of the States Parties to the Charter of Local Self-Government are not affected by their accession to the EU
Nor could it be argued that states having acceded to the Union subsequent to the ratification of the Charter would be concerned by the issue of reconciling the international and Community undertakings of states as propounded by Article 351 TFEU. According to this article, “The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treaties. To the extent that such agreements are not compatible with the Treaties, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established. Member States shall, where necessary, assist each other to this end and shall, where appropriate, adopt a common attitude” (For recent applications of this, see CJEC, Grand Chamber, 3 March 2009, Commission v. Austria, case C-205/06, and Commission v. Sweden, case 249/06). In theory, for there to be incompatibility between the agreements concluded by the state prior to its accession and the law of the EU, there would have to be interference between the two classes of provisions, which as we have seen does not occur in this instance. The situation of future Union recruits will not be altered in this regard by the entry into force of the Treaty of Lisbon.
However, there remains the case concerning Article 4 § 2 of the TEU arising from the Treaty of Lisbon, providing that “The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government”. Could this provision lead to a situation requiring the application of Article 351 TFEU? On first examination, one would not think so, because this provision does not appear to embody endorsement of action that might prompt the Union to take measures likely to be of direct relevance to the status of local authorities. Quite the contrary; the outcome of this a priori for the Union is rather a duty, to respect the territorial structures which the state has adopted together with the legal identity which it has imprinted on them. Now this duty, which reinforces the institutional autonomy of states as has been observed, should be deemed to have as its corollary the obligation for the Union to refrain from adopting acts whose object is the organisation or the functioning of these state entities. This being so, it cannot be completely ruled out that a contrary interpretation of Article 4 § 2 may prevail in the Union. If so, the outcome would be the appearance in the derived law of legal elements impinging on the Council of Europe Charter, perhaps to the point of incompatibility. Reliance on Article 351 TFEU would therefore be imperative to resolve the conflict between the Charter, which would then have the character of a “prior” treaty within the meaning of this provision, and the Treaty of Lisbon. The resultant solution will be described below.
b) The applicability of EU powers in relation to international organisations
There remain the possibilities for the Union to conclude association agreements with international organisations (Article 217 TFEU) or to enter into any appropriate form of co-operation with the Council of Europe (Article 220 TFEU). These possibilities are at all events no more apt to provide the Union with a ground for assuming in member states’ stead the obligations arising from the Charter or even for being a party to it in conjunction with them. One reason is that the Charter is not an instrument creating, according to the definition given by Article 207 TFEU of association agreements, mutual rights and obligations vested in both entities. The second reason is that an international undertaking is evidently not one of the means contemplated for the “appropriate forms of co-operation” referred to in Article 220 TFEU. Moreover, if it were, there would be the question of the capacity of the Council of Europe, as a plain intergovernmental organisation, to assume obligations of the type contained in the Charter of Local Self-Government.
B) Member States’ exclusive international capacity in respect of their local authorities
Thus the obvious fact must be faced that the powers implied by the Council of Europe instrument belong, in international treaty relations, to member states alone. But in spite of everything, might the exercise of this power not create areas of friction with the law of the Union? Appearances notwithstanding, this is not a simple question to answer. Various possible instances of this power will be discussed before illustrating the thesis with transfrontier co-operation agreements.
1) Exercise of states’ international jurisdiction in respect of local authorities and EU law
The answer to the question raised earlier will depend primarily on the purpose of the international agreement.
The first instance is where the agreement in question, whether concluded between Member States of the Union or between a Member State and third states, has the strict purpose of promoting local self-government. Such an agreement would conceivably be centred on administrative co-operation between the local authorities of the states concerned, and could provide for the organisation of technical and political co-operation in matters concerning the status and protection of local elected representatives or more broadly local governance or exchanges of best local practice. Having regard to these purposes, the interactions of such an agreement with the law of the Union will be virtually nil for the reasons already mentioned.
But undertakings restricted to what forms the object of the Charter of Local Self-Government will admittedly be rare. The co-operation agreements which states reach on behalf of their local authorities or empower them to conclude will more plausibly relate, besides strictly institutional aspects, to the object of a policy. This may be, for example, environment, culture, education, trade, etc. Such purposes obviously adumbrate the instruments that sustain them in the ambit of Union policies. State authorities or local authorities, where signatories to these, will then logically be bound to observe the rules of competence laid down by the constituent treaties, as well as the provisions of derived law. On the first point, that is ascertaining what transpires from observance of the rules of competence, it will need to be asked whether the subject-matter of the treaty comes under the category of exclusive powers of the Union, that of shared powers, or that of supporting powers (respectively dealt with in Articles 3, 4 and 6 of the TFEU). In the case of exclusive powers, member states are deemed to have forfeited all contracting power, whether among themselves or with third states; in the second case they will be able to act only in so far as the institutions of the Union have not availed themselves of their own power, and in the third they will be able to act freely (cf. Article 2 TFEU).
2) The example of bilateral or multilateral treaties on transfrontier co-operation between Member States
The exclusive international capacity of member states is again apparent in the multiple treaties signed in the 1980s and 1990s to assist co-operation among the local authorities of the signatory states. These treaties sometimes led to co-operation agreements between local authorities whose projects were able to benefit from the support of the European structural funds. Apart from the 1977 agreement on transfrontier co-operation by Denmark, Finland, Norway and Sweden (none belonging to the European Community at the time, and Norway has not acceded), the other treaties all refer to the Madrid Convention of the Council of Europe. The list may include the 1986 Benelux Convention, the 1991 German-Dutch agreement of Isselburg-Anholt, the 1993 Franco-Italian agreement, the Bayonne treaty between France and Spain, the Karlsruhe agreement by Germany, France, Luxembourg and Switzerland, and lastly the 2002 Brussels Franco-Belgian agreement, the Mainz agreement between the German Länder, the Wallonia Region and the German-speaking Community of Belgium, and a few other less formalised agreements. The common relevance of these agreements to our concerns is that they preclude making local authorities subjects of international law and that the application of the conventions signed on this basis always comes under the domestic law of one of the signatory states. While they have sometimes permitted the creation of permanent structures with legal personality, they have always precluded (with the exception of the Benelux convention) the transfer of prerogatives of sovereign authority to these structures.
C) Member States’ obligations regarding the application of Community law do not detract from their obligation to comply with the Charter of Local Self-Government
If states have sole competence to make international undertakings as regards the rights, obligations and powers of their local authorities, they also bear sole responsibility under public international law for honouring their undertakings. This obligation exists as regards the European Charter of Local Self-Government, even though it does not embody a means of sanction. It is a binding obligation within the domestic legal system but, to the extent that the legal system of the European Union exists in its own right while being integrated with the national one, is extended by an obligation of states in the functioning of the European Union. The obligation is not confirmed to procedures for enhancing the participation of local authorities or regional authorities in the Union’s policies. Finally, in the absence of linkage between the treaties on European Union and the Charter of Local Self-Government, it does not avail against states that their undertakings towards the European Union override their undertakings in respect of the Charter of Local Self-Government.
1) An obligation in domestic law
The Charter of Local Self-Government is an international treaty giving rise to obligations in international law for the signatory states. It is the typical treaty with force of law: states undertake to abide by the treaty’s stipulations, but its clauses generally do not give rise to mutual obligations with the possible exception of Article 10 of the Charter, since co-operation between local authorities of different states or their participation in international associations of local authorities presuppose that their governments raise no impediment to this. Compliance with the provisions of the Charter therefore cannot be made subject to any condition of reciprocity. In all States Party to the Charter, according to domestic law its authority is higher than or equal to the laws and it can therefore be directly pleaded before the national courts, without prejudice to the case of states retaining a strict dualistic system (United Kingdom), and to the directly enforceability of its provisions. The obligations of each state may be different, depending how many paragraphs are accepted (Article 12) and the authorities in respect of which they are accepted (Article 13), or the territories specified (Article 16).
Unlike the European Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, the European Charter of Local Self-Government embodies no machinery for applying sanctions or monitoring its application. However, Article 14 of the Charter provides that “Each Party shall forward to the Secretary General of the Council of Europe all relevant information concerning legislative provisions and other measures taken by it for the purposes of complying with the terms of this Charter”. The Explanatory Report specifies that “This article is intended to facilitate the monitoring of the application of the Charter in the individual Parties…”. Subsequently, the Council of Europe progressively established a monitoring apparatus.
In 2000 the Committee of Ministers instructed the Congress of Local and Regional Authorities to “ensure, in particular, that the principles of the European Charter of Local Self-Government are implemented” (statutory resolution of 15 March 2000), and this mission was confirmed by the statutory resolution of 2 May 2007 (2007)6 on the Congress of Local and Regional Authorities (Article 2.3) supplanting the previous instrument. The European Committee for Local and Regional Democracy (CDLR) is also mandated to look after “the intergovernmental acquis of the Council of Europe in the field of local and regional democracy and in particular the European Charter of Local Self-Government, the European Outline Convention on Transfrontier Co-operation of Territorial Communities or Authorities and the Protocols thereto and the Convention on the Participation of Foreigners in Public Life at Local Level” (Committee of Ministers, 1073rd meeting, 9-14 December 2009). Finally, the Congress of Local and Regional Authorities approved the report presented by the Finnish Minister for Public Administration and Local Authorities, recommending enhancement of co-operation between the Congress and the CDLR concerning the monitoring of the application of the European Charter of Local Self-Government (Recommendation 282(2010) of the Congress on follow-up to the Council of Europe Conference of Ministers responsible for Local and Regional Government – Utrecht, 16-17 November 2009).
These provisions show not only that the European Charter of Local Self-Government is indeed the source of legal obligations, but at the same time that supervision of its application is still unorganised.
2) The Charter as the source of an obligation of conduct for Member States in the functioning of the EU
The obligation of the States Parties to apply the European Charter of Local Self-Government in the domestic legal system extends into the framework of the European Union. Of course, the European Union as such has no obligation under the Charter, but member states, also bound by the Charter, have the obligation to act, within the Union’s intergovernmental functioning, ensuring that the decisions in which they co-operate do not directly or indirectly detract from the undertakings which they accept in the framework of the Charter. By the very fact that the legal order of the European Union is integrated with the national legal order of each of member states, they must ensure that the application of Community law is compatible with the European Charter of Local Self-Government.
The construction of European citizenship also gives this obligation a foundation. Having been progressively constructed from the Treaty of Maastricht onwards, it is extended and reinforced by the Treaty of Lisbon, especially through the provisions introduced in title devoted to Democratic Principles in the new text of the Treaty on European Union, and in those appearing in the text of the Treaty on the Functioning of the European Union, in the second part dealing with “Non-discrimination and citizenship of the Union”. According to Article 10.3 TEU, “Decisions shall be taken as openly and as closely as possible to the citizen” and Article 20.2 TFEU provides that “Citizens of the Union shall enjoy the rights (…) inter alia (…) the right to vote and to stand as candidates (…) in municipal elections in their Member State of residence, under the same conditions as nationals of that State”, subject to detailed arrangements adopted by the Council (Article 22.1).
Now, participation in local elections would carry less weight if local self-government was not safeguarded. To that extent, the application of the principles of the European Charter of Local Self-Government is a condition for Union citizenship to unfold at local level. Article 3 of the Charter closely associates local self-government, as “the right and the ability” of a local authority “to regulate and manage a substantial share of public affairs” (para. 1), with the exercise of this right by councils or assemblies elected by the citizens or directly by the citizens themselves (para. 2). By seeing to it that they honour their own undertakings in the functioning of the European Union, the States Parties to the Charter further the development of Union citizenship at local level.
Article 4 of the Charter on the scope of local self-government is particularly important from the standpoint of the obligation of the European Union Member States to fulfil their undertakings under the terms of the Charter in the functioning of the Union, and especially in the decision-making processes. According to paragraph 6 of this article, “Local authorities shall be consulted, insofar as possible, in due time and in an appropriate way in the planning and decision-making processes for all matters which concern them directly”. To the extent that the obligations of states under the Charter impinge on the functioning of the European Union, this provision requires member states, not the European Union, to consult the local authorities or their associations on draft Community acts of direct concern to them, whether legislative acts or acts specific to the implementation of policies in which the local authorities participate.
The obligation of states to ensure compliance with the Charter in the functioning of the European Union could be countered by the terms of Article 351 TFEU. According to this article, “The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treaties” (1st paragraph). The European Charter of Local Self-Government is in fact a treaty subsequent to the entry into force of the treaties on the European Communities or the European Union, but this objection cannot be sustained for two or more reasons.
The first and principal reason is the lack of connection between the treaties establishing the European Community and the European Charter of Local Self-Government. Article 351 conforms to the solution set out in Article 30 of the Vienna Convention on the Law of Treaties for resolving conflicts between international conventions. But, for there to be a conflict, there must be successive treaties dealing with the same subject-matter. The Court of Justice interprets this condition quite broadly; the aforementioned article has general scope and applies to any international agreement, whatever its object, likely to have an effect on the application of the Treaty (CJEC 14 October 1980 Attorney general v. Juan C. Burgoa, case C-872/79, para. 6). But the principle of Member States’ institutional autonomy and its various implications preclude any jurisdiction of the Union over the organisation, regulation and powers of member states’ local authorities.
The second reason, presuming the first to be refuted, hinges on the fact that anteriority is a relative concept. Firstly, owing to the successive enlargements not all member states are in the same chronological position today in relation to the Charter and to the treaties of accession that sealed their membership of the Community and then the European Union. For the new Member States in Central and Eastern Europe, accession is subsequent to the entry into force of the European Charter of Local Self-Government where they are concerned. Since the Charter is not a treaty creating mutual obligations, the objection that the other States Parties already belong to the Community does not hold. The Court of Justice takes accurate account of states’ accession dates and of the intentions which they expressed about the maintenance in the meantime of the bilateral agreements which were in force between them (for example, CJEC 23 November 2003 Budjovicky Budvar, Narodni’ Podnik v. Rudolf Ammersin GmbH, case C-206/01, particularly paras. 161-170).
Furthermore, the chronology may be altered by the effect of the revisions of the treaties, at least if their interconnection is influenced by the revisions. An agreement is not in fact subsequent unless a European norm already exists in the field which it covers, and the Treaty of Lisbon introduced for the first time the provisions which attach “local and regional self-government” to “national identities, inherent in [the] fundamental structures, political and constitutional” of member states to be respected by the European Union (Article 4.2 TEU). In this case, the European Charter of Local Self-Government is a “prior” international agreement, and it should fully enjoy the protection prescribed by Article 351, if one accepts that it is capable of influencing the application of the treaty. The effect of this article, as assessed, is not to create obligations towards the Union owing to an earlier treaty, but to enable the states bound by a prior treaty to continue honouring their undertakings, and the Union must then accept the application of these stipulations by the states concerned (CJEC 14 October 1980 Attorney general v. Juan C. Burgoa, paras. 8 and 9).
3) Local and regional authorities’ participation in certain procedures in the Community framework does not release states from their obligation towards the Charter in the Community framework
For many years, precisely because of the growing impact of Community norms on local government, numerous proposals have been made and numerous measures introduced to foster the participation of sub-national entities in the framing of Community policies and acts.
The Commission White Paper on European Governance of 25 July 2001 (COM(2001)428 final) set the objective of “reaching out to citizens through regional and local democracy” (p. 12) and ensuring the participation of regional and local authorities in the framing of policies (p. 13). In its “White Paper on multilevel governance” of June 2009 (CdR 89/2009 fin cm), the Committee of the Regions defines governance as “co-ordinated action by the European Union, member states and local and regional authorities, based on partnership and aimed at drawing up and implementing EU policies”.
Various provisions of Community law reflect this stance. Besides participation by regional ministers in the delegation to the Council of member states so desiring (which does not concern local authorities as such), the role of the Committee of the Regions, albeit consultative, has been broadened, consultation of it having become compulsory in a larger number of fields, and it may turn to the Court of Justice to enforce respect for the functions vested in it; the regulations implementing the policy of cohesion make arrangements for “partnership” as regards programming and its implementation, which involves the local authorities (vide supra); the Community acts regulating various sectoral policies create the conditions for local authorities’ participation (as in the sector of water).
But this participation cannot stand for a guarantee of local self-government. For one thing, the national and European policies alike are steered by the national governments and the authorities of the Union; participation of local authorities can thus operate to the detriment of local self-government. This is of course never absolute, but it presupposes that there is room for local decision-making, protected by the constitution and by the law, and accepted by the upper echelons of the public authorities. In addition, the limit to governance is governability. The mere thought of the difficulties of governing the Union with 27, and soon far more, members is enough to be afraid of the stagnation and confusion that might result from genuine involvement of local and regional authorities (nearly 91 000 of them today) in European policies. The implication is that there is no alternative to devolution, whether at the level of the states or of the Union, to give local and regional democracy its proper chance. That is why the States Parties to the European Charter of Local Self-Government must see to it that the principles of the Charter are complied with in the functioning of the European Union as in the internal order, and must not rely on successive advances in multilevel governance.
D) The potential of the Union’s common foreign and security policy where local authoritiesare concerned
New questions concerning the application of the Charter may nevertheless arise with regard to the provisions of the Treaty of Lisbon on the international action of the Union. It will be recalled that what is designated by this treaty as “external action” (Title V of the TEU) does not come within the Community purview but is placed in the intergovernmental framework comprising, on the one hand, the common foreign and security policy (Article 23 ff. TEU) and on the other hand the common security and defence policy (Article 42 ff. TEU). At first glance, it may appear surprising to relate these policies to local authorities. However, the fact is that the new definition of the objectives pursued by the action of the Union (Article 21 § 2 TEU) is so broad that initiatives directed at local authorities are not to be excluded. Consider for example the objective of consolidation and support for democracy, rule of law, human rights and the principles of international law, which might very well prompt actions on behalf of local self-government. Other actions affecting local authorities could also follow from the other goals of external action, that is preservation of international peace and security, support to sustainable development, encouragement of the inclusion of countries in the global economy, promotion of sustainable development, or assistance to the populations of countries or regions facing disasters.
These are of course only potentialities, but they command attention. Two observations concerning them will suffice. The first is that if these potentialities were to become realities, the actions which the Union would then decide would only concern, as external action requires, the local authorities of non-member countries. The second is that anyway one cannot see how, on the basis of such principles, the Union’s action could clash with the demands of local democracy and self-government.
III. PROPOSALS FOR ENSURING COMPLIANCE WITH THE CHARTER OF LOCAL SELF-GOVERNMENT IN THE POLICIES OF THE EUROPEAN UNION
The following proposals are intended to strengthen the guarantees for application of the European Charter of Local Self-Government on the basis of the convergence in values that exists between the Charter and European Union law. They include both legal measures and also a political dimension.
1) Exclusion of the EU’s accession to the Charter
Consideration has sometimes been given to seeking the accession of the EU to the European Charter of Local Self-Government, in the same way as the Lisbon Treaty provides for in the case of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 6.2, TEU). However, this precedent cannot be transposed here. The area covered by the treaties clearly does extend to fundamental rights and, once again, the Lisbon Treaty confirmed that the EU Charter of Fundamental Rights has the same legal value as the treaties (Article 6.1).
In contrast, as has been shown, the treaties do not grant the European Union any powers concerning territorial organisation or the system and functions of local authorities. As underlined in Articles 4 and 5 of the Treaty on European Union, the European Union exercises only those powers conferred upon it in the treaties, while all other powers remain with member states. The European Union cannot therefore accede to a treaty whose purpose lies outside its area of competence.
2) Recourse to Article 351 TFEU
European Union bodies could not invoke member states’ obligation of loyalty to the Union against their undertaking to apply the principles of the European Charter of Local Self-Government in the functioning of the European Union. On the one hand, the Charter is outside the area of competence of the European Community (European Union); it cannot therefore be regarded as a subsequent treaty within the meaning of Article 351 TFEU. On the other, it was only the Lisbon Treaty which introduced (in Article 4.2 TFEU) a provision that affects the area covered by the Charter. In relation to this new provision, the Charter is an earlier treaty and the states parties are required to reconcile their undertakings under the Charter and in the European Union and cannot give precedence to the imperatives of the European construction process, eg the Single Market.
3) Role of the Committee of Ministers of the Council of Europe: examination of an annual report prepared by the CDLR on the development of Community law asregards its impact on the honouring of the Charter undertakings
While European Union member states are required to ensure compliance with their commitments under the European Charter of Local Self-Government in the functioning of the European Union, the Committee of Ministers and the CDLR need to play a larger part in monitoring application of the Charter principles. Only the ministers representing the states parties to the Charter will have the necessary authority to alert their governments if necessary and make appropriate representations at European Union bodies.
To this end, an annual or biennial report prepared by the CDLR on the development of Community law and its impact on local authorities would enable the problems and risks to be highlighted. Such a report should be based on the main areas of responsibility of local authorities in member states and focus on an in-depth study of the problems identified so as to put forward convincing arguments to the ministers.
If appropriate, the Committee of Ministers could adopt joint positions on the issues submitted to it. In that case, they would probably have more impact if changes in the Committee Ministers’ rules of procedure allowed separate voting by ministers representing member states of the European Union.
4) Bring the impact of Community law within the scope of the machinery for monitoring the Charter’s application
At present, monitoring of the Charter’s application is probably too widely dispersed between the Congress of Local and Regional Authorities and the CDLR. Above all, however, it only concerns compliance with the Charter at domestic level. As has been shown, states’ legal obligation extends into the area of the functioning of the European Union. Monitoring activities concerning states parties which are also members of the European Union should therefore take account of the relevant states’ action in the functioning of the European Union and in implementing Community law from the angle of compliance with the principles of the Charter.
This measure would be all the more important since it is not unusual for Community law to be exploited for political purposes, with national governments blaming the European Union for measures which they fear they would be unable to push through themselves. It would also be a means of interesting the Commission in this Council of Europe activity, as it could be to its benefit.
5) A memorandum of understanding between the EU and the Council of Europe introducing evaluation of the proposals for directives or regulations prepared by the Commission in terms of their impact on member states’ compliance with the Charter
Drawing on the new wording of the Lisbon Treaty which gives it anterior status, the Charter could be used as a basis for prior evaluation of planned regulations or directives of the Parliament or the Council of the European Union from the angle of their possible impact on the principles of local self-government.
The best arrangement here would be a memorandum of understanding between the European Union and the Council of Europe, as that would require the Commission to take part and would involve Council of Europe thinking in the drafting process from the outset.
However, as draft Community legislation is published, it would be possible to monitor proposals and prepare evaluation reports even without such a memorandum. The Congress of Local and Regional Authorities could be involved here and adopt recommendations. For the reasons stated earlier, it would be desirable for recommendations also to be adopted by the Committee of Ministers.
6) Role of the Congress of Local Authorities: the impact of Community law on the application of the Charter could give occasion to restore this organ to its primary mission of ensuring compliance with the Charter
The Congress of Local and Regional Authorities should have a major role to play in the efforts to be made to ensure compliance with the Charter in the functioning of the European Union.
On the one hand, it has experienced elected representatives and great administrative capability within its services, both of which should be used to produce high-quality reports that catch the attention of governments and MEPs.
On the other, the Congress could give political weight to the work carried out.
There could be some division of labour between the Committee of the Regions and the Congress of Local and Regional Authorities. The former would focus on the involvement of local and regional authorities in the drafting of Community policies, while the latter would have to ensure compliance with the principles of the European Charter of Local Self-Government both in the states parties and also in the functioning of the European Union.
[1] This traditional term will be used here to refer to the law of the European Union since the Lisbon Treaty.