Recommendation 78 (2000)1 on local and regional democracy in France

The Congress,

1. Recalling:

a. its Resolution 31 (1996) on the guiding principles for the action of the Congress when preparing reports on local and regional democracy in member states and applicant States;

b. in particular, paragraph 11 of this resolution, in which the Congress requests that over a reasonable period of time all member States be the subject of a detailed report on local and regional democracy;

c. that, on the basis of the above-mentioned paragraph, it has already prepared several reports on local and regional democracy in various European countries2;

2. Recalling that in November 1998, the Committee of Ministers of the Council of Europe invited it to continue its work on the preparation of country-by-country reports on the situation of local and regional democracy in all the member states;

3. Considering the willingness of the French governmental and parliamentary authorities to pursue the political debate on decentralisation in France, with a view to improving the legislative basis and conditions for the exercise of territorial authority, and wishing to contribute to this debate in a constructive manner;

4. Notes that, pursuant to this willingness, the French government has set up a Commission on Decentralisation, chaired by Senator Pierre Mauroy, former Prime Minister;

5. Having taken note of the report on local and regional democracy in France drawn up by MM. Moreno Bucci (Italy, L) and Jean-Claude Van Cauwenberghe (Belgium, R), rapporteurs, assisted by Professor Philippe De Bruycker (Belgium), following five official journeys by the rapporteurs between December 1999 and March 2000, including visits to Paris (twice), Boulogne-Billancourt, Lille, Metz, Bourg en Bresse and Ajaccio;

6. Wishes to express its gratitude to all the representatives of the French central and territorial authorities and academics who agreed to meet the rapporteurs during the above visits3 for their interest in the Congress's activities and their extreme helpfulness;

7. Considers it necessary to submit the following observations and recommendations to the French parliamentary and governmental authorities;

7.1 Concerning the decentralisation process and the administrative organisation of the territory:

7.1.1 Notes that the decentralisation process initiated at the beginning of the 1980s represented a break with the centralised tradition and was a successful attempt at reform of the state, in which success depended to a considerable degree on the gradual implementation of a number of major fundamental principles, particularly with regard to powers, finance and controls;

7.1.2 Notes, however, that this success cannot disguise the fact that the majority of territorial elected representatives view the decentralisation process as incomplete, against a background that is perceived as one of "re-centralisation";

7.1.3 Notes that metropolitan France still contains more than 36,000 communes, and that this aspect has implications on the on-going debate on decentralisation;

7.1.4 Notes that the strengthening of inter-communal co-operation, particularly through the Law of 12 July 1999, represents, inter alia, an attempt by the French authorities to furnish a pragmatic response to the historical fact that a great many communes exist, as opposed to purely and simply merging;

7.1.5 Notes that a phenomenon of territorial fragmentation is also occurring, albeit to a lesser degree, at the higher tiers formed by the 96 départements and 22 regions in metropolitan France;

7.1.6 Has doubts about the democratic legitimacy of certain types of inter-communal co-operation institutions which, having independent fiscal powers, constitute a de facto additional tier of territorial administration superimposed on that of the communes;

7.1.7 In the light of the foregoing, consider that:

a. the proliferation of inter-communal co-operation institutions endowed with ever more important powers, compounded by increased competition between the various authorities concerned, could well spark off a situation of political and administrative hypertrophy, with consequences in terms of cost and complexity potentially detrimental to territorial autonomy;

b. it is already necessary to give thought to how the territorial changes arising from co-operation between territorial authorities will be integrated into the future organisational and planning map of the national territory;

c. it could be useful to grant territorial authorities a wider degree of self-management, which could extend to the decision to merge certain administrative levels, even if they are of different types;

d. the democratic legitimacy of the most integrated forms of institutional inter-communal co-operation must be one of the fundamental questions in the debate on the future of decentralisation in France;

7.2 Concerning the question of territorial authorities' powers:

7.2.1 Welcomes the precise inventory contained in the decentralisation laws of the 1980s, which affords a great degree of clarity in the system for the distribution of powers;

7.2.2 Notes, however, that the objective of creating homogenous blocs of powers, in certain fields, has not been achieved, inter alia owing to countless and repeated transfers and delegations of powers regardless of legislation;

7.2.3 Notes that these transfers of powers are sometimes difficult to reconcile with the traditional general clause in respect of powers and are contributing to increasingly interlocking powers, with adverse effects on the development of local and regional autonomy;

7.2.4 Observes that this phenomenon is complicated by the practice of contractual arrangements, not only between local authorities of the same level, but also between different levels of power and with the state;

7.2.5 Expresses its concern that the exercise of power via contractual arrangements currently represents a method of administration in France which, while recognised for its efficiency and flexibility;

- escapes in certain phases the machinery of democratic control at territorial level;

- is sometimes felt by local and regional elected officials to constitute an imposition by the state;

- leads in certain cases to unavoidable competition between authorities;

7.2.6 Considers that the interlocking powers and use of contractual arrangements to define them has created a climate of uncertainty that requires speedy clarification by parliament;

7.3 With regard to the territorial authorities' financial resources

7.3.1 Welcomes the fact that:

a. during adoption of the above-mentioned laws on decentralisation, transfer of powers was accompanied by financial transfers from the state, with a view to averting a situation where decentralisation meant a transfer of costs from the state to the detriment of the territorial authorities;

b. the financial autonomy of French authorities is based on the fact that local elected representatives are free to set the rates of their taxes within the limits established by law;

c. municipal budgets account for almost 30% of all public expenditure, and 75% of public investment is currently carried out by the territorial authorities, representing a substantial share of public spending;

d. France is thus well above the average in terms of "own" taxation (25.7%), and well below the average level of transfers (49%) in the Council of Europe's member states4: this proposition is all the more impressive for being achieved in a context of municipal fragmentation;

7.3.2 Nonetheless expresses its concern that:

a. this situation is currently being gradually destabilised by a paradoxical development whereby territorial authorities' "own" taxation is decreasing at the same time as decentralisation seems to be making progress;

b. autonomous taxation by territorial authorities is effectively being eroded in the wake of various measures introduced over the past two decades via the annual finance laws;

c. these measures result in a government "take-over" of territorial authorities' "own" taxation, which the state compensates by additional subsidies to replace the losses arising from the abolition of local taxes, but which may not take account of real changes in costs arising from the exercise of these authorities' powers;

d. such a development is not without consequences for local and regional autonomy and democracy, since it is undeniable that a gradual state take-over of local taxation represents a loss of autonomy for territorial authorities, in that they are less and less free to secure their "own resources";

e. this development has inevitably generated concern among a number of territorial representatives, generally expressed by the idea that re-centralisation has been observable since the beginning of the 1990s;

7.3.3 Recalls in this context that "own" taxation is the principal means whereby territorial authorities may obtain resources, by to some extent deciding what rates to set. It is thus an essential basis for genuine autonomy;

7.3.4 Considers in this respect that:

a. the time has come to move away from a system of annual adjustments via finance laws, which do not reflect the overall picture and which set little store by the financial autonomy of territorial authorities;

b. a comprehensive reform of local and regional taxation is called for, which would entail consolidation of the fiscal autonomy of territorial authorities by strengthening financial equalisation between the territories5;

7.4 Concerning the status of local and regional elected representatives:

7.4.1 Is of the opinion that, in order to ensure that territorial elected representatives can freely discharge their mandate, it is appropriate to establish clearly the conditions for exercising their responsibilities under the law;

7.4.2 In order to avoid a situation where territorial elected representative become civil servants, general rules should be adopted to provide these representatives with appropriate remuneration and corresponding social security cover;

7.4.3 In order to encourage political involvement at local and regional level, it is very important, with regard to civil and criminal liability, that direct personal liability be limited to specific cases recognised by law. With this in mind, local and regional authorities should be granted their own legal personality;

7.5 Concerning relations between the central and territorial authorities:

7.5.1 Welcomes the fact that administrative supervision, which was particularly onerous when exercised a priori (before the decision had been taken or was enforceable) has given way to an ex post facto control of legality, which can be carried out only by a judge with respect to the administrative aspects and by the regional audit office with respect to the financial aspects;

7.5.2 Considers, however, that it is important not to encumber the decision-making process of territorial authorities with long and complicated authorisation processes that are liable to restrict their autonomy;

7.6 Concerning the exercise of state powers at territorial level:

7.6.1 Welcomes that fact that, since the renewal of decentralisation during the 1980s, devolution is no longer considered as a precondition, but as a necessary parallel to decentralisation, so that the decentralised authorities can at each step and increasingly identify an interlocutor at their level within the state administration who responds to their needs whilst respecting their independence;

7.7 Concerning the question of simultaneous office holding:

7.7.1 Has been receptive to comments by various French local elected representatives, who question the practice of simultaneous office holding by national and territorial elected representatives;

7.7.2 Is of the opinion that it is appropriate to restrict the practice of simultaneous office holding in order to valorise territorial elected representatives who assume their political responsibility only at local or regional level;

7.8 Concerning the political accountability of territorial executives to elected assemblies:

7.8.1 Notes that, with one exception, no political method is available to the elected assemblies of territorial authorities for the purpose of directly dismissing representatives of the executive whom they have appointed to prepare and implement their decisions;

7.8.2 Whilst conscious that the free choice exercised by citizens in elections is an opportunity for the latter to express their overall judgment of the work done by elected representatives, considers that it would be desirable to establish exceptional procedures for dismissal of territorial executives by the assemblies which appointed them. These procedures, which should be used in very specific cases, would restore to territorial assemblies political control over the local authority for which they have responsibility;

7.9 With particular regard to regional democracy:

7.9.1 Welcomes the fact that citizens have shown appreciation for the consolidation of a regional identity and that numerous important issues in French society are decided at regional level;

7.9.2 Notes that in recent years there has been a trend to use regions in response to the need to find solutions to problems arising at central level – particularly through contractual arrangements – rather than in response to citizens' requests for an administration that is closer to their needs;

7.9.3 Accordingly, considers that the regions, in the same way as the other territorial authorities:

a. must not be considered merely as managers for policies decided by the state;

b. should be involved much more closely in state decisions that concern them, particularly with regard to questions of powers, finance and the distribution of EU funds;

c. should be consulted about any project or decision concerning the future organisation of the territory;

7.9.4 With particular reference to the Corsican regional authority, encourages the government and parliamentary authorities to introduce a new status that will enable Corsica to adapt public decisions taken at central government level to the specific conditions of the island. With this in mind, and taking into consideration the solutions adopted for other European islands, it would be appropriate to:

a. strengthen the recognition of the specific nature of the territorial community concerned;

b. transfer substantial blocs of powers, particularly in the fields of regional planning, identity, culture, language and education;

c. study the possibility of endowing the Corsican territorial assembly with more important rule-making powers in the fields mentioned in paragraph b, in line with its insular and cultural identity, and strengthen its powers with regard to finance, without this engendering debate on the basic prerogatives of the central authorities;

7.10 With regard to the ratification of the European Charter of Local Self-Government and other Council of Europe conventions in the field of local self-government:

7.10.1 Regrets that France has not yet ratified the European Charter of Local Self-Government6, despite having signed this text immediately after its adoption in 1985;

7.10.2 In this respect, wishes to emphasise that, in the eyes of French law specialists and politicians themselves:

a. there is no constitutional obstacle to ratification of the convention;

b. the definition of the concept of "local self-government" contained in the European Charter of Local Self-Government7 does not differ from the concept of "free government" used in Articles 34 and 72 of the Constitution;

c. the European Charter of Local Self-Government currently offers viable solutions to some of the problems now posed by decentralisation in France, and that its ratification would not entail any disruption to the present system of territorial authorities;

d. French law is compatible with the majority of the Charter's principles: indeed, certain provisions of French law sometimes afford even more protection than those in the Charter or, since adoption of the decentralisation laws, are in perfect harmony with it;

7.10.3 Welcomes the fact that France has ratified the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities and that it has signed the two additional protocols, which should now be ratified;

7.10.4 Regrets that France has not yet ratified the European Charter on the Participation of Foreigners in Public Life at Local Level8, and therefore encourages the French authorities to sign and ratify this convention, in order to benefit from a European reference text with a view to the introduction of shared, innovative and democratic solutions concerning the integration of immigrants into the country's public life;

7.10.5 Notes that, despite the political willing displayed, France has not ratified the European Charter for Regional or Minority Languages following an opinion issued by the Conseil Constitutionnel.

1 Debated by the Congress and adopted on 25 May 2000, 3rd sitting (see doc CG (7) 7, draft Recommendation, presented by MM. M. Bucci and J.C. Van Cauwenberghe, Rapporteurs).

2 Italy, Turkey (1997), Albania, Bulgaria, Latvia, Moldova, the United Kingdom, Ukraine (1998), Germany, the former Yugoslav Republic of Macedonia, Finland, the Netherlands, the Russian Federation, San Marino (1999), Estonia, Czech Republic (2000), Slovenia (on-going).

3 These representatives are listed in Appendix 1 to this recommendation.

4 4th General Report on Political Monitoring of the Implementation of the European Charter of Local Self-Government: “The financial resources of local authorities in relation to their responsibilities: a litmus test for subsidiarity”, Congress of Local and Regional Authorities, Council of Europe, May 2000.

5 The Prime Minister has underlined the importance of this autonomy by setting up a Governmental Commission on Decentralisation: "Greater responsibility in taxation matters for local authorities could serve to embed local democracy more firmly in the minds of our fellow citizens", excerpt from a letter sent by Mr Lionel Jospin to Mr Pierre Mauroy, Chair of the Commission on Decentralisation.

6 See Appendix 2.

7 Article 3.1: "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".

8 See Appendix 3.



 Top

 

  Related Documents
 
   Meetings
 
   Other documents