Workshop on

“The Elaboration of a European Charter on Multilevel Governance:

A Strengthened Commitment to a Multilevel Democracy”

Brussels, 22 June 2010

Speech by Andreas KIEFER, Secretary General of the Congress of Local and Regional Authorities Council of Europe

Mr President,

Members of the Committee of the Regions,

Excellencies,

Ladies and Gentlemen,

First of all, I would like to express my gratitude to the organisers of this Atelier, the Committee of the Regions and its Commission for Citizenship, Governance, Institutional and External Affairs, for inviting the Congress of Local and Regional Authorities of the Council of Europe to contribute to the elaboration of a Charter on Multilevel Governance.

I wish to thank in particular the Commission’s President, Mr Luc Van den Brande, who is a good friend of the Congress and who has been the driving force behind the White Paper on Multilevel Governance, adopted one year ago. Last October, the Congress Bureau adopted its opinion on the White Paper, in which it welcomed “the initiative to establish a pan-European consensus on multilevel governance between the EU and the Council of Europe based on the European model of protection of fundamental rights and the strengthening of the regional and local dimension of the subsidiarity principle”[1].

We are convinced that the Congress and the Committee of the Regions are natural partners in defining the relationship between the different levels of government in Europe. This has also been reaffirmed in our co-operation agreement, first signed in 2005 and then revised in November last year, and this explains our great interest to be directly involved in the work on the new Charter.

Ladies and Gentlemen,

The White Paper outlines the relationship between the principle of subsidiarity and multilevel governance: the first indicates the responsibilities of the different tiers of government, while the other provides a framework for their interaction.

However, back in 1985, the Council of Europe and its Congress already ensured a legal basis for multilevel governance within a member State – through the principles laid down in the European Charter of Local Self-Government[2] and applied to relations between the national (State) level, regional level and local level. The Charter is the first international legally binding instrument for local democracy, which remains to date the main reference point in this domain, and which inspired the UN decentralisation guidelines worldwide. It is in this Charter that the cornerstone principle of subsidiarity was codified for the first time. To date, the Charter has been signed and ratified by 44 member states of the Council of Europe, and its ratification is obligatory for any new member, as it is regarded as a key treaty.

One objective of a future Charter on Multilevel Governance, as we see it, is to take the principles set out in the Charter of Local Self-Government to a higher plane, and apply them to relations between the EU, the member State and the subnational level (local and regional). Once the sharing of responsibilities between these levels is defined from the viewpoint of effectiveness and efficiency, another objective is to establish a mechanism for coordinating their action within a partnership of equal players, rather than through a classical system of hierarchical subordination. This would entail joint participation of the different tiers of government in policy-making, joint ownership of these policies and their joint implementation.

The White Paper points out that multilevel governance must be understood also as a process for integrating the objectives of local and regional authorities within the strategies of the European Union. Here, too, the Congress has been advocating and indeed advancing this process at the level of the Council of Europe member states since the very creation of its predecessor, the Conference of Local Authorities of Europe, in 1957. The entry into force of the European Charter of Local Self-Government in 1988 gave legal footing and a new boost to these efforts.

I have noticed that in the presentation of reference documents distributed to us, the reference to the Charter of Local Self-Government indicates that there is no institutional system to monitor the Charter’s implementation. I beg to differ. In fact, the Congress of the Council of Europe was set up in 1994 exactly for the purpose of monitoring its implementation, and remains a sole European body legally tasked to do so by the Committee of Ministers of 47 European countries. To assist us in this mission, we have set up a group of independent experts having expertise in legal systems of all European countries. I strongly believe that our experience in this matter is directly relevant to the discussion on the implementation mechanism, to be provided in the Charter on Multilevel Governance.

Ladies and Gentlemen,

The task of monitoring the implementation of the Local Self-Government Charter enables us to prepare country-by-country reports on the situation of local and regional democracy in member States, observe local and regional elections – and we appreciate the Committee of the Regions’ active participation in the observation missions of the Congress – and to engage in the dialogue with national governments on the implementation of our recommendations. Finally, this legal mandate obliges member states, as parties to the Charter, to extend their full co-operation and respond to our recommendations.

I would like to elaborate on this monitoring mechanism in greater detail, since monitoring is crucial for a multilevel governance system – as acknowledged in the White Paper itself, which devotes an entire section to this issue, and by many contributors in the consultation process For instance, Professor Nicolas Levrat from the University of Geneva, who is one of the discussants in this Atelier, had this to say in his contribution to the 2008 ateliers, I quote: “…tools that allow the monitoring and in fine the possibility for the citizens to evaluate the success of policies (and actors behind them) within a scheme of multilevel governance [are] a precondition for allowing a dedicated legitimising process of actors within [this scheme] [3].” (end of quote)

Indeed, as the custodian of the European Charter of Local Self-Government, the Congress has been monitoring the situation of local and regional democracy in Europe since 1995. Our monitoring process involves regular visits to the country, by our rapporteurs and members of the group of independent experts, or fact-finding missions in reaction to specific situations of alleged violations of the Charter.

During these visits, the Congress delegation meets a wide range of interlocutors at the highest level: government ministers responsible for local and regional authorities; members of national and regional parliaments responsible for territorial issues and financing; local and regional elected representatives – mayors, governors, municipal and regional councillors, as well as their associations; the President of the Constitutional Court, as well as national, regional and local ombudsmen; expert specialists and representatives of civil society, including NGOs and trade unions.

The Congress debates, in plenary sessions, the reports prepared as a result of these visits, and adopts recommendations, which are transmitted to national governments through the Committee of Ministers, highlighting the shortcomings and proposing measures to improve the situation. The governments are then invited to report to the Congress on the implementation of the recommendation, which usually takes the form of an exchange of views between government officials and Congress members during plenary sessions.

However, the most substantial follow-up is achieved by checking the situation through follow-up visits and further monitoring reports. As part of its current reform, the Congress is now set to expand this activity and establish the pace of monitoring each country at least once every five years. In 2010, we will already have carried out around 15 monitoring missions, compared to the previous average of five missions per year. Moreover, we intend to organise targeted post-monitoring assistance programmes, which would address the issues of major concern and specific shortcomings, and which would involve both national and territorial authorities.

This is why the Congress has been in direct contact with national authorities and is holding regular discussions with them, which helped us to bear influence on shaping national legislation and administrative practice, and to elaborate tools to complement the existing legal framework.

However, our efforts today are not limited to the national level – we are also in the process of defining an international agenda. One of the most recent examples is the Chaves Group, set up by the decision of the Ministers responsible for Local and Regional Government. This Group, which had its first meeting yesterday in Paris, has local and regional authorities, represented by the Congress, working together with national governments on improving the situation of local and regional democracy in Council of Europe member states. This is a clear example of the kind of multilevel governance that this project of the Committee of the Regions is seeking to achieve.

As I have already said, I am speaking about 47 member states of the Council of Europe, which include all of the members of the European Union. This truly pan-European dimension not only allows us to draw a complete picture of the situation of territorial democracy on the entire continent, but also gives us access to the practical experience, and practical solutions, of more than 200,000 local and regional communities.

However, we do not have access to decision-making at the European Union level, and this is where the initiative of the Committee of the Regions plays a crucial role – in engaging the European Union into a system, the basis for which has been established by the European Charter of Local Self-Government.

It is clear that EU legislation has impact on local and regional government. To give just one example, I could mention the Service Directive which provides for the creation of contact points for foreign service providers, which may be seen as interfering with the established competences of local authorities who are responsible for construction permits, permits for enterprises, etc.

This is why it is imperative to make sure that the European Union, first and foremost, respects the principles of the European Charter of Local Self-Government. In this regard, the recognition of the subsidiarity principle in Article 4 of the Lisbon Treaty is of fundamental importance. In the long run, we could also envisage considering EU accession to the Local Self-Government Charter, along the lines of its accession to the European Convention on Human Rights.

Second, we are convinced that any new concepts and principles to be included in the Charter on Multilevel Governance must be complementary and in addition to those already established by the Council of Europe and its Congress, in particular in the European Charter of Local Self-Government. The Charter’s effectiveness has already been proven by the fact that today, the conditions for good governance are to be found primarily in member states – the fact confirmed by consultations on the White Paper[4].

The new benchmarks foreseen for the implementation of the EU Charter must not be below those already set in the Council of Europe treaties. In drafting this new Charter, we must therefore first identify both potentially conflicting points and consensual ones, vis-à-vis the European Charter of Local Self-Government and other Council of Europe instruments.

In this regard, we can certainly use the past monitoring experience of the Congress, to use it not only to shape the Charter on Multilevel Governance but also to amend further the existing Charter of Local Self-Government. The latter has already begun to be done, with the first Additional Protocol on the right to participate in the affairs of a local authority[5] opened for signature in November last year.

 

Furthermore, the Congress decided, in March this year, to include the question of the human rights implementation at local and regional level as part of its monitoring. We are convinced that ensuring equal protection of human rights in local and regional communities is as much, if not more, a matter for territorial authorities as it is for national governments and the EU. We are also convinced that this matter should be part of the multilevel governance framework.

In this regard, it is encouraging to see that the White Paper stresses in particular that promoting and preserving the European model of protection for fundamental rights must be responsibility shared by all tiers of government. Indeed, the implementation of human rights at local and regional level is a prerequisite of democracy and good governance. In fact, in the opinion on the White Paper, the Congress Bureau emphasised that the co-operation agreement between the Council of Europe and the EU Agency for Fundamental Rights “could lead to a strategic triangle for the strengthening of human rights between the Congress, the Committee of the Regions and the Agency[6]”. We strongly believe that this is a path worth exploring.

If we are to draw lessons from our monitoring experience, applicable to the Charter on Multilevel Governance, I would emphasise four major points. First, there must be a clear delimitation of competences for each level set in law, to avoid overlapping and confusion but, most importantly, to restrict ad hoc delegation of responsibilities leading to unfunded mandates. This brings me to the second point: adequate local and regional financing, means matching the responsibilities, the lack of which is a major shortcoming across Europe. The same goes for local and regional property issues – an additional protocol on this matter to the Local Self-Government Charter, proposed by the Congress, was not accepted by national governments, so more work needs to be done.

Third, we need practical measures to guarantee genuine independence of local and regional authorities and non-interference in decision-making. This point is underpinned by the first two, and goes to the heart of the problem: you cannot create a community of equal partners when some depend on others for competences, money and decision-making authority.

Finally, the new Charter should provide a framework for greater innovation and citizen participation at all levels of government. I have already mentioned the protocol on democratic participation at local level; I would also refer you to the European Strategy for Innovation and Good Governance at Local Level[7], adopted by the Council of Europe in 2007, which essentially sets out the principles of relations between authorities and citizens at the community level. I should point as well to our recent initiative, the European Local Democracy Week, which is proving to be an excellent tool for involving citizens and having them enter into dialogue with their local authorities, which could be reflected in the new Charter.

Ladies and Gentlemen,

While there is a substantially developed legal framework at local level, we still have a lack of legally binding principles as far as regional governance is concerned. It is true that Article 13 of the European Charter of Local Self-Government stipulates that “each Party may […] specify the categories of local or regional authorities to which it intends to confine the scope of the Charter”. However, this is not nearly enough. At the same time, this issue is of crucial importance to multilevel governance in Europe.

For more than a decade, the Congress has been trying to convince national governments of the necessity to elaborate a convention for the regional level, similar to the Local Self-Government Charter. In 1997, the Congress adopted the draft European Charter of Regional Self-Government, which received full support of the Council of Europe Parliamentary Assembly. However, this first project was not accepted by national governments as a binding instrument. Nevertheless, the Ministers responsible for Local and Regional Government adopted in 2002 the so-called “Helsinki principles” of regional self-government.

In 2008, the Congress adopted a draft European Charter of Regional Democracy[8]. It was not accepted in the form of a convention, either. Instead, drawing on the text of the draft Charter and the Helsinki principles, governments elaborated a Reference Framework on Regional Democracy[9], which was adopted by Ministers responsible for Local and Regional Government in Utrecht last November. Although not of a binding character, this reference framework represents an encouraging compromise and a new departure in our efforts.

The reference framework is a compilation and a synthesis of decisions by the Ministers and of the 2008 draft Charter of the Congress, serving as a reference point for any government wishing to begin a process of regionalisation or reform of its local and regional structures.

The reference framework is also a means of helping governments to strike the best possible balance in the apportionment of powers and responsibilities among different tiers of government. The text stresses the principle of subsidiarity, the principle of social and territorial cohesion and the need for solidarity among the components of a sovereign state (or "federal" loyalty).

Regional authorities, whatever their nature or particular institutional character, will now possess references and principles concerning their democratic structure, their organisation, competences and own resources, their place within the state, their relations with other authorities, and their relations with citizens.

This veritable code of rights and duties of regional entities will have two principal functions. The first will be to serve as a source of inspiration when countries decide to establish or reform their regional authorities. The second will be to act as a body of political reference principles on which the Congress can rely in monitoring regional democracy in the Council of Europe member states.

Although lacking the binding force of the European Charter of Local Self-Government, the reference framework nonetheless has a major symbolic value, because the standards it embodies have the general approval of the Congress and the Parliamentary Assembly of the Council of Europe, as well as the support of the Committee of the Regions and, more broadly, the regional community and its main associations. We can now work on the protection and improvement of regional governance, using this text as the basis, which is why I am convinced that this framework should be integrated into the Charter on Multilevel Governance.

Finally, our most recent effort in the field of regionalisation was the adoption, in October 2009, of the resolution and recommendation on regional with legislative powers: towards multilevel governance[10]. The Congress is convinced that such regions have a special role to play in establishing a multilevel governance system in Europe, and in achieving good governance thanks to their status, powers, finances and, most importantly, participation and joint decision-making at national level.

This is why we called for greater regional representation at both national and European level, which would create a direct link between international policy-making and domestic responsibilities of the regions. The Congress in particular encouraged member states to include regional representatives in national delegations to Council of Europe committees and working groups, and we believe that similar action is needed within the European Union. 

Ladies and Gentlemen,

Generally speaking, it is our conviction that the acquis of the Council of Europe and its Congress, the concepts and principles that they provide, must be integrated into the Charter on Multilevel Governance. In addition to the ones already included among reference documents, I would mention again Reference Framework on Regional Democracy, the European Strategy for Innovation and Good Governance at local level and the protocol on democratic participation at local level. I would also add the Convention on the Participation of Foreigners in Public Life at Local Level[11], as well as the 3^rd Protocol[12] to the Madrid Convention on transfrontier co-operation, providing for the establishment of Euro-regional co-operation groupings.

I strongly hope that these tools will feed into the future Charter on Multilevel Governance. Make no mistake: we do need a new instrument for the European Union, but we don’t need to reinvent the wheel in drafting one.

Thank you.