Local communities in the European multi-level governance system (Bolzano, 25-26 October 2012)

      “Monitoring activities of the Congress of Local and Regional Authorities”

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

      Check against delivery,

      Ladies and Gentlemen,

      First of all, I would like to thank the organisers for the initiative to discuss the role and place of local communities in a new system of multi-level governance which we are seeking to build in Europe. Indeed, the current economic crisis and the shortcomings of the existing democratic system on our continent compel us to look for a new model of governance which would better respond to citizens’ needs and expectations.

      One of the key features of this new, multi-level model is the clear delimitation of competences between different levels of government, based on the principle of subsidiarity. This principle establishes that the responsibility for running a municipality and for the delivery of public services should be conferred on the level where these services can be delivered most efficiently, and entails a transfer of competences from the national level to regional and local authorities, thus allowing for the decentralisation of power towards the level closest to the citizen.

      The principle of subsidiarity was established for the first time in history by the European Charter of Local Self-Government, a cornerstone treaty for local democracy adopted by the Council of Europe in 1985. The Charter lays down the legal basis for decentralisation and the development of local self-government on our continent, and as such represents the foundation for the system of multi-level governance as well.

      The core mission of the Council of Europe Congress of Local and Regional Authorities, which I represent, is to monitor the implementation of the European Charter of Local Self-Government in the 45 European countries that have ratified it to date. I should state briefly that the Congress is a political assembly of local and regional elected politicians from 47 member states of the Council of Europe, representing more than 200,000 grassroots communities of our continent.

      In my intervention today, I would like to present monitoring activities of the Congress as well as our key findings with regard to the situation of local and regional democracy in Europe.

      I would like to begin by presenting in greater detail the Charter itself and the monitoring mechanisms of the Congress, then speak about the main conclusions we can draw from our monitoring activities, and finish by our current efforts to ensure better reception of the Charter in domestic legal systems and to create a single, unified space of common standards in the field of local democracy in Europe.

      European Charter of Local Self-Government

      Ladies and Gentlemen,

      The European Charter of Local Self-Government is a key Council of Europe convention that can be compared to a Magna Carta for local communities. It was opened for signature on 15 October 1985, and entered into force on 1 September 1988. To date, it has been ratified by 45 European countries out of the 47 member states of the Council of Europe, and we hope that the two remaining countries – Monaco and San Marino – will adhere soon.

      The basic purpose of the Charter is to define the common European standards of local democracy, and to entrench and protect the most important rights of local authorities. Essentially, the Charter affirms the role of communities as the first level for practising democracy. It has established, for the first time in history, that citizens have a right to manage themselves a substantial part of their public affairs. The Charter requires that this right of citizens to local self-government be embedded in domestic law or in the Constitution in order to guarantee its effective implementation. Furthermore, the Charter lays down the principle of subsidiarity, which I have already mentioned, ensuring a transfer of competences to local authorities.

      Secondly, the Charter sets out the principles of the democratic functioning of communities. It stipulates that local governing bodies must be democratically elected, must have their own administrations and financial autonomy, and must be able to exercise their own duties – an autonomous sphere of action - without interference from any other authority, national or regional. We do not distinguish between the autonomous sphere and the area of transferred tasks and responsibilities by regional and/or national authorities. In German this would be called „eigener“ and „übertragener Wirkungsbereich“.

      The Charter guarantees the conditions of office of local elected representatives, their ability to exercise their functions freely, and their right to form associations of municipalities. It establishes a number of safeguards to protect the rights of local communities, such as:

      - local boundaries cannot be changed without community agreement;

      - the supervision of local authorities’ activities must be defined by law and address only the legality of local action, not the expediency of local decisions;

      - local authorities must be consulted on all matters affecting them;

      - and they must have the possibility of judicial recourse to defend their interests and protect their rights.

      The Charter stipulates in particular that local authorities must have their own financial resources, sufficient to fulfill their duties. Local financing must be a matter of national – or Länder / regions in federal countries - policy, and the government must guarantee this principle of financial autonomy, either through transfers from national funds or by allowing local authorities to levy taxes. Local authorities must be allowed to borrow from domestic markets, and the government must also help weaker communities through equalisation schemes. Finally, this principle means that the transfer of competences from a higher level must be accompanied by the transfer of matching financial means, necessary to carry out the tasks. This is a guarantee against the so-called unfunded mandates – an issue which is especially problematic during the current economic crisis.

      On 16 November 2009, an Additional Protocol on the right to participate in local authorities’ affairs was adopted to supplement the text of the Charter. The citizens' right to participate in the conduct of public affairs is a democratic principle enshrined in the Preamble to the Charter. The Additional Protocol details this right as the right to seek to determine or to influence the exercise of a local authority's powers and responsibilities. Its purpose is to bring within the scope of the Charter the right of any person to participate in the affairs of a local authority.

      The adoption of the Additional Protocol is the first step in our current efforts to broaden the application of the Charter by improving direct democracy at local and regional level. This first step was complemented in October 2011 by the Congress’ recommendation on increasing citizen participation at local and regional level in Europe.

      Another direction for broadening the Charter’s application is to lay stress on human rights. The work of local governments in a decentralised system has a wide range of human rights implications through public service provision, allocation of public resources, etc., and the Congress is now emphasising the crucial role of local and regional authorities in ensuring conditions for the full exercise of human rights in their communities.

      These examples show that the range of common European principles of local self-government is not closed, nor is it a final set of rules but actually a living material which is continuously developing. So the mission of the Congress is not only to control the compliance of what was requested years ago, but rather, to improve the application of these principles and standards.

      I would add that improving and strengthening the Charter’s application is of particular importance in the current time of the economic crisis, when we are witnessing, on the one hand, tendencies for recentralisation of competences by national governments and, on the other hand, for desolidarisation among different tiers of government and among local and regional communities themselves. Both undermine the balanced distribution of power and the good functioning of local democracy, whereas the implementation of the Charter restores the positive trends for decentralisation.

      Mechanism of the Charter’s implementation

      Ladies and Gentlemen,

      Let me now turn to the mechanism of the Charter’s implementation.

      This implementation is ensured, first and foremost, by the fact that the countries which have ratified the Charter are bound by its provisions. The Charter requires compliance with a minimum number of principles that form a European foundation of local democracy. States undertake to respect this core of basic principles to which no reservation is possible, such as:

      - the right of citizens to participate in managing public affairs;

      - the key rights of communities to enjoy autonomy and self-government, elect their local bodies and to have their own competences, administrative structures and financial resources;

      - or the right to judicial recourse in case of interference from other levels.

      Through these core principles, the Charter seeks to ensure the compatibility of the diverse structures of local communities in the Council of Europe member states.

      The Congress of Local and Regional Authorities makes sure that these principles are observed. We do so through our monitoring activities, which the Congress has been carrying out since 1995. Since that time, we have produced some 50 reports for 44 countries with recommendations to national and regional, as appropriate, governments. In June 2010, we revised our rules of procedure for monitoring, to make this exercise more regular, more objective and transparent, and more geared towards an effective follow-up and assistance to the authorities of the country. As a result, the Congress has established the pace of monitoring each country at least once every five years, with an average of 12 to 13 country missions per year since 2010.

      The Congress has developed several monitoring tools. One of them is the so-called regular country-by-country monitoring, which involves regular visits to the country by Rapporteurs of the Monitoring Committee of the Congress, accompanied by members of the Congress Secretariat as well as members of the Group of Independent Experts on the Local Self-Government Charter, established by the Congress to assist the work of its statutory committees.

      Another instrument of monitoring is the observation of local and regional elections. The Congress has been observing local and regional elections in member states, and recommends action to improve electoral frameworks and processes. Our election observation covers the whole legal framework for elections and the entire electoral process, to provide a comprehensive picture of the situation. Since 1990, the Congress and its predecessor, the Conference of Local and Regional Authorities of Europe, have carried out some 100 missions, to observe more than 70 elections in member states.

      Yet another available procedure is the fact-finding mission in response to alleged violations of the Charter, with 4 such fact-finding missions having been fielded since 2007. In addition, other instruments and tools of the Congress are the direct dialogue with national governments on specific issues and post-monitoring assistance to address issues of concern, of which I will speak later.

      Finally, ex officio reports by the Group of Independent Experts, prepared at the request of the Congress, could also be considered as a monitoring tool. The Group has prepared a number of comparative reports in relation to the various provisions of the Charter and their implementation in member states. By doing so, the Congress and other Council of Europe entities could be provided with a detailed interpretation of the Charter, specifying its requirements (for example, what are the financial sources of local governments, what forms of central-local government relations exist in member states, etc.).

      Monitoring visits and country reports

      I would like to say a few words specifically about our country reports and monitoring visits.

      Monitoring visits have a more or less standard procedure. The Congress sets a schedule (timetable) to prepare a specific country report and sends a delegation to the chosen member state, for one or two visits. During these visits, the delegation usually meets:

      • government ministers (national and regional)

      • members of national and regional parliaments

      • local and regional elected representatives (councillors, governors, mayors)

      • representatives of the associations of local and regional authorities

      • justices of constitutional and supreme courts

      • national, regional and local ombudsmen

      • representatives of civil society or stakeholders’ organisations

      After the visits, a draft country report is prepared by the Rapporteurs with the support of an expert and the Congress secretariat, which is circulated among the interested partners, who have the possibility to present their own views and comments. The reports are then discussed and approved in the Monitoring Committee. Finally, the Congress debates these reports in plenary sessions, and adopts recommendations highlighting the shortcomings and proposing measures to improve the legal framework as well as the administrative practice in order to comply completely with the Charter. These recommendations are transmitted to national governments through the Committee of Ministers of the Council of Europe. The governments are then invited to report to the Congress on the implementation of the recommendation. This usually takes the form of an exchange of views between government officials and Congress members during subsequent plenary sessions. The most recent example is the exchange of views with the Estonian Minister for Regional Affairs, Mr. Siim Kiisler, in the 23rd Congress Session on 18 October 2012.

      Conclusions from monitoring

      The experience gained during monitoring allows us, on the one hand, to take into account the diversity of methods and practices in implementing the Charter. On the other hand, this experience enables us to recommend optimal solutions and good practices suitable to the specific national settings. In addition, the interpretation by constitutional courts of the Charter provisions and legislation in the light of the Charter create the case-law which is crucial for the rule of law at the grassroots.

      For some recent examples, I would refer you to the decisions voted by the Austrian parliament in June 2011, as a direct implementation of three concrete Congress recommendations, following a national debate about federalism in that country which was triggered by our monitoring report. The details are contained in an article in the Yearbook on Federalism 2012. Also as a result of monitoring, the Estonian government has renewed its dialogue with local authorities, and Slovenia has ratified the Additional Protocol to the Self-Government Charter on citizen participation. By signing the Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority in 2012 Bulgaria has given new impetus to its local democracy following a monitoring report of the Congress. Finally, changes are underway in Russia concerning the return to direct elections of governors, which was one of our main recommendations in our recent monitoring of that country.

      If we are to draw lessons from this experience, I would emphasise the following recurrent points that are raised in Congress recommendations:

      - the proportionality between local competences and available resources;
      - a lack of consultations with local authorities, provided for under two articles of the Charter: Article 4.6, specifying that local authorities must be consulted, insofar as possible, on all matters of direct concern to them in due time and in an appropriate way; and Article 9.6 providing for consultations on the allocation of financial resources (in this regard, the Congress has just debated a report on the subject of consultations during its October session);
      - a third recurrent issue concerns matters of administrative supervision of local authorities by higher levels;
      - finally, a lack of the effective right to legal recourse, which in practice is often hindered by the existing filters (such as the requirement to lodge a legal complaint through a government agency) and which has been aggravated especially in this time of crisis.

      As to the general experience of monitoring visits, among the most common problems revealed by them, I could mention

      • a lack of clear delimitation of competences, including shared competences;

      • insufficient local financing: for example, one of the recent trends has been the disproportional allocation of financial burdens among the central and local governments;

      • ineffective coordination mechanisms in central/local government relations;

      • a lack of frameworks for or instruments of citizen participation in local public affairs.

      And finally, if we look at the most typical Congress’ recommendations, they often contain proposals

      • to establish appropriate structures and procedures in providing public services;

      • to improve the cooperation and coordination mechanisms between the central and local levels;

      • to provide for local government associations to have a voice in the preparation of local government budgets;

      • to provide guarantees for equal access to public services without discrimination against national minorities, as well as a system for the quality control of public services; and

      • to set up independent complaints’ mechanisms available for local citizens.

      Follow-up and post-monitoring

      Ladies and Gentlemen,

      We are fully aware that for this monitoring to be effective, we need to make sure that our recommendations are implemented. In order to improve the follow-up to its recommendations, the Congress is currently developing post-monitoring co-operation programmes with both national and territorial authorities, aimed at overcoming the existing problems and putting our proposals into practice.

      Through our monitoring and election observation, we have entered into substantial and targeted dialogue with authorities in the countries concerned, and are currently participating in Council of Europe Action Plans for Albania and for Ukraine, ensuring the implementation of its local and regional dimension.

      We have also begun preparing post-monitoring specific to our recommendations, with first seminars on the subject taking place in June and September this year. The September seminar in Sarajevo, for example, focused on the follow-up to the Congress recommendation on local and regional democracy in Bosnia and Herzegovina, and concretely on drafting a kind of “road map” for putting our proposals into practice. While we are fully aware that post-monitoring could be a long-term process, especially in complex national situations, what is important is to make sure that this is a continuing process, leading to concrete results.

      A “road map” to implement our recommendations would serve as a kind of insurance or guarantee, a contract to apply our proposals in the long term. Thus, we see post-monitoring as a partnership in which we do not simply make recommendations but also provide a continuing support and expertise through the political dialogue initiated during monitoring visits. We are convinced that the most substantial follow-up could be achieved only through regular contacts and discussions with the country’s authorities following these visits.

      Reception of the Charter in national legal systems

      Complementary to post-monitoring, the Congress is also working to make sure that the Charter provisions are properly incorporated into domestic law and legal systems of member states – what we call the “reception of the Charter into domestic legislation”. We are convinced that this process is of fundamental importance for the good functioning of local democracy in European countries. In October 2011, the Congress debated a report on the reception of the Charter by domestic legal systems, and decided to draft guidelines on the current interpretation of the provisions of the Charter, for use by legislative bodies, monitoring bodies and constitutional courts.

      The reception of international treaties into domestic law is a very complex subject, in part due to the wide variety of legal systems in Europe. It should be admitted that additional complications come from the fact that some of the Charter’s provisions are still rather vague, and it is sometimes very difficult to directly apply certain provisions. The question also arises whether the Charter can be used and quoted directly by national courts to base their judgments. Again, this will depend on the variety of traditions in our member States. It is not our goal to change these traditions, but we insist that appropriate measures are taken in each country to make sure that the Charter should take a proper place in relation to the legal mechanism for reception of international law in member States.

      The most direct way to make the Charter’s provisions more effective is through the recourse to national courts. Whatever the receiving system of international law in a country, once the Charter is ratified, the country is committed to abide by its letter. Therefore, the violation of one of its articles can be alleged in court either on the basis of the Charter itself, or based on the law derived from it. Therefore, it is always possible to appeal to a domestic court in case of an alleged violation of a principle laid down by the Charter. But the prerequisite is that, on the one hand, local authorities are properly informed about the Charter and its guarantees and, on the other hand, their right to legal recourse – guaranteed by the Charter – is effective in practice.

      We hope that the report we debated in October 2011 will inspire further reflection in member states, at all levels of governance, but also in courts, so that the reception of the Charter into domestic law is supplemented by legal guarantees of full compliance.

      Lifting of reservations and prospects for the future

      Ladies and Gentlemen,

      Finally, I would like to touch upon future prospects in relation to the Charter’s implementation.

      As I have said at the outset, our objective is to create a single, unified space of common standards in the field of local democracy in Europe. The European Charter of Local Self-Government establishes the minimum core of basic principles contained in the 20 compulsory paragraphs of the Charter that are binding on all member states. However, beyond this minimum core, states are allowed to make reservations to the other paragraphs of the Charter when ratifying it. Today, these reservations represent an obstacle to the harmonious application of the Charter’s principles. This prevents us from being able to create a common legal space, in which common legal standards of the Charter could be applied across the continent. For this reason, one of the Congress’ priorities today is to have these reservations lifted, and to make sure that we have, so to speak, a 100 per cent Charter.

      We began by analysing the grounds for such reservations in the first place, in a report on the subject debated in October 2011, and are pursuing efforts to change the circumstances that were used as justification for reservations, and to convince member states to lift them. Monitoring missions are very useful here, in order both to understand the current situation and to advise the countries in question to rethink reservations they have entered.

      We are pleased that these efforts are beginning to bear fruit. The analysis of the current situation shows that the number of reservations has decreased over the past years from 107 to 83 today, with Croatia and Slovakia withdrawing 10 reservations each, and Malta lifting 4 reservations last year.

      Today, out of the 45 member States that ratified the Charter, 24 countries have done so without any reservations. The 21 others entered a total of 83 reservations to the 30 non-compulsory paragraphs of the Charter contained in 10 Articles. Six countries (Bulgaria, Cyprus, Spain, Malta, Latvia and Romania) have only one reservation today and should be considered as “non-reservation-entering”. The countries that have entered the largest numbers of reservations are Turkey (9 reservations), Liechtenstein (8), and Georgia, the Czech Republic, Serbia and Switzerland (6 each). These countries alone account for almost half of all the reservations entered (41 out of 83).

      The Congress will continue to pursue its efforts in this regard.

      Ladies and Gentlemen,

      This concludes my comprehensive presentation of the Congress work on consolidating and strengthening the legal basis for local democracy in Europe, and I thank you for your attention.



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