Report on Local and Regional Democracy in Poland - CG (9) 21 Part II

Rapporteurs: Ms Kathryn SMITH (United Kingdom, L) and Mr Miljenko DORIC (Croatia, R)

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EXPLANATORY MEMORANDUM

I. INTRODUCTION

1. On the basis of Article 2.3 of the Committee of Ministers’ Resolution (2000) 1 which set forth that the Congress prepares country by country monitoring reports on the situation of local and regional democracy in member and applicant States, in June 2001 the Congress Bureau entrusted the Institutional Committee with the preparation of a full report on the situation of local and regional democracy in Poland.

2. For this purpose, the Institutional Committee appointed Mrs Kathryn Smith (United-Kingdom, L) as Rapporteur on local democracy and Mr Miljenko Doric (Croatia, R) as Rapporteur on regional democracy. In order to fulfil their responsibility, the Rapporteurs were assisted by Prof. Jean-Bernard Auby (France), Prof. Marie-José Tulard (France) and by Prof. Fabrice Hugot (France) experts. Mr Riccardo Priore, Ms Marta Turi and Mr Olivier Terrien, representatives of the Council of Europe’s Secretariat (Congress Secretariat), also assisted the Rapporteurs for the elaboration of the report and the organisation of their official visits to Poland.

3. The decision to draft a monitoring report on Poland was taken in compliance with the agreement between the Congress and the Committee of Regions to firstly assess the situation of local and regional democracy in the European Union applicant States. The Rapporteurs were requested to present a full report, accompanied by political proposals, to the Congress Mini-Session to take place in Strasbourg on 14 November 2002.

4. In order to prepare their report, the Rapporteurs made two official visits to Poland. The first visit took place in Warsaw on 16-17 May 2002. The second visit took place on 5-7 September 2002 in Warsaw and Bialystok1. On the occasion of their visits, the Rapporteurs met representatives from governmental, parliamentary, and territorial authorities, in accordance with the programmes prepared by the Ministry of the Interior and Administration - Public Administration Department. During the visits, the CLRAE Delegation experienced a friendly and co-operative atmosphere. In this respect, the Rapporteurs wish to express their gratitude to the Polish authorities for their welcome and the organisation of different meetings.

5. Further to the first visit, under the responsibility of the Rapporteurs, the Secretary of the Institutional Committee prepared a preliminary draft report, which was submitted to the Polish authorities concerned as a basis for an open and constructive discussion. On the basis of the comments provided by the Polish authorities on the occasion of the second visit2, the Rapporteurs finalised their report and, on 30 September 2002, presented it, together with a preliminary draft recommendation to the Institutional Committee for approval.

6. On this basis, the recommendation was adopted by the Congress at its Mini-Session of 14 November 2002 and addressed, together with the report, to the parliamentary and governmental authorities of the Republic of Poland via the Committee of Ministers. A copy of these texts was also sent to the Parliamentary Assembly of the Council of Europe, the European Parliament, the European Commission and the Committee of the Regions of the European Union.

7. The present report is divided into four parts. After the present introduction (Part I), Part II provides brief geographical, social and political background information, which also refers to the structure and the functioning of public institutions in Poland. Information on the position of the country within the Council of Europe and regarding its future possible accession to the European Union are also provided in this section.

8. Part III presents the current territorial administrative organisation of the country based on the recent reforms (1990 and 1998). It therefore describes the organisation and the functioning of local and regional self-government making a reference to the relevant constitutional and legal framework.

9. Part IV examines the above-mentioned legal texts notably regarding:

- the legal recognition of the principle of local self-government,

- the constitution and the powers of local councils and the executive bodies responsible to them,

- the administrative internal structures of local authorities,

- the conditions under which responsibilities at local level are exercised,

- local authorities’ responsibilities and financial (own and transferred) resources,

- the institutional relations between local authorities and State authorities (and the role representatives of central authorities at local and regional level),

- the right of local authorities to create associations and to participate in trans-frontier co-operation,

- the right of local authorities to judicial protection.

This examination is done taking into account the principles enshrined in the European Charter of Local Self-Government (ECLSG).

10. Part V of the report examines the current functioning of local and regional self-government in the country and examines the future perspectives of the decentralisation process. With this in mind, it focuses on the difficulties met in the implementation of the legislation based on territorial reforms. This analysis is carried out taking into consideration the comments made by the Polish representatives met by the Rapporteurs during their visits. The accession process of the country to the European Union and the impact of this process on local and regional democracy are also described in this part.

11. The final part of the report (VI) contains a summary of the main positive facts and the problems encountered. On this basis, it draws constructive conclusions, which should represent a support for the improvement of local and regional self-government in Poland.

II. BACKGROUND INFORMATION

12. Poland is located at the western end of the East European plain, on the shores of the Baltic Sea. It borders in the north Lithuania and the Kaliningrad region of the Russian Federation; in the West Germany, in the South Czech Republic and Slovakia; in the East Ukraine and Belarus. On the northern edge, the Baltic seacoast is 788 km long. Poland has direct links with the Scandinavian countries from the Baltic coast. The country is a vast plain. More than 96% of its surface area is no more than 500m above sea level. The soil is fertile and irrigated by 3 navigable rivers: the Vistula (1074 km), the Oder (854 km) and the Varta (808 km). Along the southern edge of this plain lies the Sudetes and Carpathian mountains.

Other data on the country: Total surface area : 312 700 square kilometres; Population (2000): 38.64 million inhabitants (124 inhabitants/km², 62% city-dwellers, 14% senior citizens and 30% under 15).

Capital: Warsaw (1.7 million inhabitants); Main towns: Lodz (815,300), Krakow (739,000), Wroclaw (640,000), Poznan (580,000), Gdansk (462,000) and Szczecin (418,000).

Currency (convertible): Zloty; GDP (2000); $161 billion ($155 billion in 1999); GDP/inhabitant (2000): $ 4,170 ($ 4,010 in 1999);

Working population: 59.5%; Literacy rate: 99%.

Main religion: Catholicism; Official language: Polish.

98% of the population are Polish; other ethnic minorities include Germans, Ukrainians, Belorussians and Lithuanians.

13. The current Polish Constitution was approved by referendum on 25 May 1997. The Republic of Poland is a democratic and sovereign state governed by the rule of law. The Parliament is composed of two chambers : the Diet (sejm) is composed of 460 members; the Senate of 100 senators. They are elected by universal suffrage for a 4-year period. The Head of State (President of the Republic) is elected by universal suffrage for a 5-year term of office, which can be renewed once. The President represents the Republic, appoints the Prime Minister and, with the latter’s approval, the ministers, who are answerable to the Diet. The President has the right of veto in Parliament but is not the head of the government.

There are more than 200 registered parties in Poland, which are frequently reconstituted. The parties in the Parliament are3:

- Democratic Left Alliance (SLD);

- Union of Labour (UP);

- Civic Platform (PO);

- Polish Peasants' Party (PSL);

- Self-Defence Party;

- Law and Justice (PiS);

- League of Polish Families;

- Representatives of the German minority.

14. Poland joined the Council of Europe in 1991 and, consequently, ratified the ECLSG on 22 November 1993, without reservations. The Charter entered into force in Poland on 1 March 1994.

On 19 March 1993, Poland also ratified the European outline Convention on transborder co-operation between territorial communities or authorities, which entered into force on 20 June of the same year. However, it should be noted that the Polish authorities did not ratify either the additional protocols to this Convention or the European Charter for regional or minority languages and the Convention on the participation of foreigners in public life at local level.

15. A Delegation for the European Union (EU) Pre-accession Negotiations was set up in Poland to co-ordinate the work of various ministries regarding the preparations for the country’s membership in the European Union and to develop the position of Poland in the negotiations.

Integration into the EU, alongside other aspects, implies the removal of barriers to exchanges between the two parties, as well as the adoption of the EU common set of principles, rules and norms (the acquis communautaire). 2004 is seen as the possible date when Poland will become member of the EU.

III. THE TERRITORIAL ORGANISATION AND THE MAIN FEATURES OF LOCAL AND REGIONAL AUTHORITIES

16. Further to the initial reform which restored the municipalities (gminas) after the40-year communist period (March 1990), in January 1999 a new important territorial reform was introduced by the Polish Parliament. On this basis, the territorial administration system now comprises three types of authority. The basic level (gminas) has been supplemented by an additional local level (powiats) and a regional level (voivodships). The self-government system in the capital city Warsaw was also recently amended.

The central government is represented in the voivodships by governors (voivods). The voivods are responsible for public security, for ensuring that national policies are executed within the voivodships and that the state institutions operating in the region perform their functions appropriately. They have direct responsibility aimed at controlling the legality of decisions taken by gminas, powiats and voivodships. The reform of central administration should be a corollary of the transformations in the territorial organisation. In fact, the government is no longer responsible for the tasks, which were devolved to local and regional authorities. In this respect, the 1998 reform needs to be further implemented.

17. The 2489 gminas (including the 65 cities enjoying the same rights of powiats) represent the basic level of public administration in Poland. By law, gminas take care of the most important collective needs of local communities. An average Polish gmina has 15,000 inhabitants. Rural gminas average is 7 thousand inhabitants (28 gminas under 2,500 and 7 gminas under 2,000). The largest urban gminas have populations of several hundred thousand inhabitants; the biggest one - Warsaw Centrum– has a population of about 1 million (September 2002). The creation of gminas is considered the success of Poland’s structural transformations. The 1998 reforms did not apparently reduce the significance and the role played by gminas.

18. The 315 powiats constitute the second tier of local self-government. By law, powiats are responsible for local issues, which, due to the subsidiarity principle, cannot be ascribed to gminas. Unlike gminas, which are responsible for all matters that have not been explicitly assigned to other levels of government, the powiats implement only those tasks that have been clearly defined for them by law. There is no dependence between the powiats and the gminas: each of them separately executes defined public tasks and responsibilities. The average powiat consists of 8 gminas with about 85,000 inhabitants.

19. The 16 voivodships are self-governing regions with populations ranging between approximately 1 and 5 million and an average population of about 2.4 million. By law, voivodships have independent legal identities, their own budgets and powers in the area of economic policies and regional development. They formulate and implement development strategies for their territory and provide a number of specific services to citizens. Regional development tasks are subject to the so-called “regional contracts” between central government and voivodships in connection with gminas and powiats concerned.

20. In accordance with the law in force (the law on the Local Self-Government in Warsaw adopted in 1994), the capital of Warsaw is composed of 11 gminas. One of these gminas is the city centre, Warsaw Centrum, which is divided into 7 boroughs with a population of 1 million habitants. All together, the other 10 gminas have about 700,000 population. The local councils of the 11 gminas are directly elected. The 11 gminas form a mandatory communal union headed by the Council of Warsaw, which is also directly elected. The 11 gminas possess legal personality and have constitutional guarantee. They have rights of ownership, other property rights and also appropriate budget. They are entitled to associate. In addition, the self-governing nature of these gminas is protected by the courts.

21. On 15 March 2002, the Parliament adopted a new law on the type of government for the Capital City of Warsaw. This law establishes that the capital of the Republic of Poland, the Capital City of Warsaw, is a gmina with the status of a city which enjoys the rights of a powiat. The new law will introduce a new system transforming 10 gminas and the 7 boroughs of central Warsaw into 17 “auxiliary entities” (plus one outside from Warsaw). It should be noted that the major difference between the gminas and the auxiliary entities is that these entities have no legal personality. Furthermore, they are not entitled to have own tasks and appropriate resources. It is up to the new City Council to determine the competences and resources available for them. The new law also establishes that the local councils of the auxiliary entities will be directly elected and the Council of the Capital City of Warsaw (also directly elected) will have the right to create, merge, divide and even eliminate these entities.

22. The new Law on the government of the Capital City of Warsaw caused major confrontations between the competent central authorities and a number of the local authorities concerned. This law is supposed to enter into force after the forthcoming local elections, which will take place on 27 October 2002 (first round) and 10 November 2002 (second round if necessary). A case is currently pending before the Constitutional Court concerning the legal basis of this law and the procedure following to adopt it. It is claimed that consultation with local communities were not executed in a proper way and – in consequence – the new law is being challenged as violating the European Charter of Local Self Government (Articles 4.6 and 5). Some complaints have been addressed to the Council of Europe as well. (see appendix 2).

23. The main principles of local democracy are enshrined in the Preamble of the Constitution. The provisions on local self-government are encompassed by Chapter VII of the Constitution (Article 163-172). Other articles, namely Articles 15-16, 184 and 191, also refer to territorial authorities and decentralisation of powers.

The Rapporteurs were informed that the Polish version of the European Charter of Local Self-Government includes the expression of ”territorial self-government” and that the term “territorial” refers to the local level exclusively. It means that the Charter applies to gminas and powiats and not to voivodships. The very same expression “territorial self-government” is used in the Constitution to refer to both local and regional levels. It means that the Constitution covers all the three levels of self-government, ie gminas, powiats and voivodships. In this respect, the Rapporteurs were surprised to learn that the same expression is used, by both the Polish Constitution and the Polish version of the Charter, to refer to different public entities. This formal confusion should be clarified by the competent authorities.

Furthermore, the Rapporteurs were also surprised to note that the official English version of the Constitution of the Republic of Poland4 uses the term “local self-government”. (The only exception is contained in Article 167.2 of this version also referring to “regional self-government”). As a matter of principle, one could expect that all official versions of the Polish Constitution contain the same terms.

24. The main laws (and subsequent amendments) concerning local and regional self-government are:

- Law of 8 March 1990 on Gminas self-Government;

- Law of 6 April 1990 on Employees of Local and Regional Authorities;

- Law of 12 January 1991 on Local Rates and Taxes;

- Law of 15 September 2000 on Local Referendums;

- Law of 7 October 1992 on Regional Audit Offices;

- Law of 7 July 1994 on Physical Planning;

- Law of 12 October 1994 on the Appeal Boards of Local and Regional Authorities;

- Law of 5 June 1998 on Powiats self-government;

- Law of 5 June 1998 on Voivodships self-government;

- Law of 16 July 1998 on Election Procedures for Gminas, Powiats and Voivodships;

- Law of 24 July 1998 on Amendments to certain Legislation governing the Distribution of Government Responsibilities, as a result of the reform of state organisation;

- Law of 28 July 1998 on Division of the Country into Three Tiers of Local Government;

- Law of 13 October 1998: Provisions introducing Legislation to Reform Public Administration;

- Law of 9 November 1998 on Sources of Income for Local and Regional Authorities;

- Law of 26 November 1998 on Public Finances;

- Law of 15 March 2002 on the reform of government of the Capital City of Warsaw;

- Law of 20 June 2002 on the direct election of mayors;

- Law of 15 September 2002 on principles for territorial self-government units to join international associations of local and regional authorities.

It should be noted that the laws on gminas (1990), and those on powiatsand voivodships (1998) were amended several times. With this in mind, on12 December 2001, a consolidated version of these laws was published.5 However, other changes were recently introduced by the Parliament (15 February 2002).

IV. EXAMINATION OF THE CONSTITUTIONAL AND LEGAL FRAMEWORK RELATED TO LOCAL AND REGIONAL SELF-GOVERNMENT AND ITS COMPLIANCE WITH THE PRINCIPLES ENSHRINED IN THE ECLSG6

25. Articles 2 and 3.1 of the ECLSG (constitutional, legal foundation and concept of local self-government). The very principle of local self-government is recognised by the Constitution, Article 15, which states that 1. “The territorial system of the Republic of Poland shall ensure the decentralisation of public power 2. The basic territorial division of the State shall be determined by the statute, allowing for the social, economic and cultural ties which ensure to the territorial units the capacity to perform their public duties.” Article 16 of the Constitution stated that: “The inhabitants of the units of basic territorial divisions shall form a self-governing community in accordance with law” and that “Territorial self-government shall participate in the exercise of public power. The substantial part of public duties, which territorial self-government is empowered to discharge by statute shall be done in its own name and under its own responsibility”. Article 166.1 of the Constitution completes these provisions establishing that “Public duties aimed at satisfying the needs of a self-governing community shall be performed by units of territorial self-government as their direct responsibility”.

The Law of 8 March 1990 on Gminas (hereafter LG), Article 2.1 and the Law of 5 June 1998 on Powiats (hereafter LP), Article 2.1, also recognise that gminas and powiats perform public tasks provided for in the law, on their own behalf and responsibility.

26. Article 3.2 of the ECLSG (elected councils and their executive bodies) is implemented by the Constitution (Article 169), stating that “1. Units of local self-government shall perform their duties through constitutive and executive organs. 2. Elections to constitute organs shall be universal, direct, equal and shall be conducted by secret ballot. The principles and procedures for submitting candidates and for the conduct of elections, as well as the requirements for the validity of elections, shall be specified by statute.”

This provision is specified in the LG and in the LP, which also refers to municipal and district councils and executive boards. New legal provisions in this respect were established by the law on direct election of mayors of March 2002. (see paragraph 24)

Concerning executive bodies accountability, Article 169.3 of the Constitution states that ”the principles and the procedures for the election and dismissal of executive organs of territorial self-government shall be specified by statute”. On this basis, the executive board for territorial self-government (elected by the council) and/or his/her head can be dismissed by a qualified majority of the councillors by secret ballot. The only exception to this rule refers to the directly elected mayors of gminas who, following the recently adopted law, can be dismissed by the population directly.

The electoral system is governed by the Law of 16 July 1998 on Election Procedures to gminas and powiats councils and voivodships diets. This law was amended in 2002; it now stipulates new rules on electoral campaigns and campaign financing.

Concerning other form of direct citizen participation in local public life, Article 170 of the Constitution states that “Members of a self-governing community may decide, by means of referendum, matters concerning their community, including the dismissal of an organ of territorial authorities established by direct election. The principles and the procedures for conducting a local referendum shall be specified by statute”.

The LG’s amendments, introduced in February 1996 added, a new provision to the effect, which is Article 5a, that local inhabitants may be consulted in situations provided for by law and in relation to matters of importance to the municipality. Principles and procedures for consulting local inhabitants must be established by municipal council decision. By the same law, inhabitants (and their organisations) may also submit various proposals to the municipal council and attend its meetings. Similar forms of direct participation exist in powiats and voivodships.

More particularly, Article 12 of the same law establishes that “Decisions of self-taxation for public purposes by the gminas inhabitants and the removal of the gminas councils before the end of its term of office are exclusively made by way of gmina referendum.” Similar rules apply to powiats as well.

27. Article 4.1 and 4.2 of the ECLSG (scope of local self-government) is directly implemented by the Constitution, which refers to local authorities responsibilities. Article 163 of the Constitution establishes that “Territorial self-government shall perform public tasks not reserved by the Constitution or statutes to the organs of other public authorities”. In particular, Article 164.3 of the Constitution states that gminas shall perform all tasks of territorial self-government not reserved to other units of territorial self-government”. This is confirmed by LG, Article 6: “Gminas perform all public tasks of local significance that have not been reserved by law to other entities” (NB: positive implementation of Article 4.2 of the ECLSG referring to the principle of general competence). In this respect it should be stressed that, unlike gminas, powiats and voivodships implement only those tasks that have been clearly defined for them by law.

Article 166.2 of the Constitution states that “If the fundamental needs of the State shall so require, a statute may instruct units of territorial self-government to perform other public duties (…)”.

The LG and the LP define the responsibilities of local authorities in a quite detailed way (see Article 7 of LG, Article 4 of LP).

28. Article 4.3 of the ECLSG (principle of subsidiarity) is formally expressed in the Constitution and in the relevant laws. In its preamble, the Constitution recognises itself as “based on the principle of subsidiarity in strengthening the powers of citizens and their communities”. As a result, Article 15 of the Constitution also states that “1. The territorial system of the Republic of Poland shall ensure the decentralisation of public power 2. The basic territorial division of the State shall be determined by statute, allowing for the social, economic and cultural ties which ensure to the territorial units the capacity to perform their public duties.”

As already mentioned, with regard to the city of Warsaw, the law of 1994 (still in force) includes provisions which enable the 11 gminas with appropriate budget, own tasks and legal personality. However, according to the new law on the city of Warsaw, (issued on15 March 2002), these competencies have been transferred to the city level. As already mentioned, it will up to the City Council to determine the tasks and resources delegated to the so-called auxiliary entities, consequently leaving these entities in a more dependent position. The Rapporteurs do not know if the decision to change the self-government system of the capital city was done by weighing up the extent and nature of tasks and requirements of efficiency and economy.

29. Article 4.4 of the ECLSG (extent and limitation of local authorities’ responsibilities). A distinction may be drawn between compulsory and optional tasks. Whereas compulsory tasks are imposed by law, optional tasks derive from a relevant decision by the council of a given local or regional authority (in the case of own tasks) or from a contract between the relevant organs of the local or regional authority in question and the appropriate organ of a higher authority (in the case of delegated tasks). Such contracts are normally signed by the voivod on behalf of the state.

In listing areas of competence, the Laws on municipalities and powiats often assign the same area to more than one authority. As a general rule, each tier performs those public tasks specified by law whose scope is appropriate to their territory.

Article 87.2 of the Constitution states that “enactments of local regulations issued by the operation of organs shall be a source of universally binding law of the Republic of Poland in the territory of the organ issuing such enactments”.

Article 166.2, which states that “If the fundamental needs of the State shall so require, a statute may instruct units of territorial self-government to perform other public duties. The mode of transfer and manner of performance of the duties so allocated shall be specified by statute.”

30. Article 4.5 of the ECLSG. No legal provisions refer to the possibility for local authorities to adapt the exercise of delegated powers to local conditions. However, legislation (or contracts) may delegate government tasks, including the organisation of elections and referendums, to municipalities. The performance of delegated tasks may also derive from an agreement between a municipality and a government body.

A powiat may delegate tasks within its remit to a municipality on a well-founded request from the latter, in accordance with conditions set out in an agreement on the matter. Powiat tasks must not infringe on the municipal sphere of Activity.

The Activities of voivodships must not violate the autonomy of powiats or gminas. Voivodships are responsible for performing specific public tasks not exclusively assigned to government organs by law.

31. Article 4.6 of the ECLSG (general principle of consultation of local authorities in the planning and decision making process for all matters which concern them directly). Apart from the indirect reference made by the first part of Article 16.2 of the Constitution, which states that “Territorial self-government shall participate in the exercise of public power …” the general principle of consultation of territorial authorities is not explicitly mentioned in the Constitution.

However, concerning the planning process, the Law of 7 July 1994 (and subsequent amendments) refers to the participation of local and regional authorities in economic and physical planning at national level.

The LG and the LP do not refer to any general principle of consultation of local and or regional authorities in the decision making process for all matters, which concern them directly.

A standing “Joint-committee” composed of representatives of local, regional and central authorities, was established by the Council of Ministers in 1993 for the first time. The joint committee is composed of Government and self-government representatives. The Prime Minister appoints members of the Government part. The self-government members are representatives of self-government associations. This committee is consulted by the Government on all draft laws concerning local and regional interests. A new joint committee was re-established by the current government in March 2002. The Working Regulation of the diet provides that the Speaker of the Parliament (Marszalek) upon receiving a draft bill concerning self-government issues is obliged to consult self-government organisations.

32. Article 5 of the ECLSG (protection of local authorities boundaries). Article 15.2 of the Constitution states that “The basic territorial division of State shall be determined by statute …” but does not specifically refers to the right of consultation of local communities when changes in local boundaries are decided.

However, as already mentioned, Article 170 of the Constitution, more generally, stipulates that “Members of a self-governing community may decide, by means of referendum, matters concerning their community, including the dismissal of an organ of territorial self-government established by direct election. The principles of and procedures for conducting a local referendum shall be specified by statute.”

Article 4.3 of the LG states that “The Council of Ministers, through a regulation, creates, amalgamates, divides and abolishes gminas in consultation with the inhabitants concerned”. It should be noted that the LG makes no reference to the consultation of local communities as set forth in the ECLSG.

Article 3.2 of the LP states that “The Council of Ministers, through a regulation, creates, amalgamates, divides and abolishes powiats in consultation with the interested gminas councils, powiats councils and voivodships seimiks”.

Concerning the city of Warsaw, the new law (March 2002) states (Article 5.2) that “The council of the capital city of Warsaw, after consultation with residents or on their initiative, passes resolutions to create, to merge, to divide and to eliminate such auxiliary entities” (i.e. the future possible 17 auxiliary entities).

33. Article 6.1 of the ECLSG. (administrative structures of local authorities). Article 169.4 of the Constitution establishes that “The internal organisational structure of units of territorial self-government shall be specified, within the statutory limits, by their constitutive organs”.

Article 33.2 of the LG states that “The organisation and the functioning of the (gmina) offices are defined in the organisational rules of procedure adopted by the gmina council on the motion of the executive board”. Article 33.7 of the LG states that the legal status of self-government employees are defined in a separate law7”. Article 35.1 of the LP states that “The organisation and the functioning of the powiat’s administration are defined in the organisational rules of procedure adopted by the powiat council on the motion of the executive board”.

Article 36.1 of the LP establishes that “The organisation and the principles of operation of the powiat’s administrative units are defined in the organisational rules of procedures adopted by the powiat executive board (…)”. Article 36.2 states that “Special conditions or rules on appointment, dismissal and also employment and termination procedures concerning managers and employees of powiats services, inspectorates and guards as well as powiats’ organisational units are laid down in a separate law”. Article 37.1 of the same law states that “The powiat council appoints and remove the powiat secretary and powiat treasurer, on recommendation of the starosta”.

These provisions confirm that:

- the election (and dismissal) of members of the executive board, including its chair, and the appointment (or dismissal at the request of the chair of the administrative board) of the secretary and treasurer (who Laws as chief accountant for the budget) of a local or regional authority fall within the exclusive competence of that authority’s council.

- appointment and dismissal of heads of units and institutions run by local and regional authorities are the responsibility of those authorities’ administrative boards.

34. Article 6.2 of the ECLSG (conditions of service of local staff). This matter is regulated by the Law of 5 April 1990 (and subsequent amendments) on employees of local and regional authorities and the Council of Ministers’ Order of 9 July 1990 (and subsequent amendments) on remuneration for employees of local and regional authorities. On this basis local and regional authorities’ staff on the basis of appointment, designation or employment contracts are often recruited by means of competitive examinations. Competitive examinations are compulsory for the recruitment of candidates for the post of head of a local or regional budgetary institutions.

35. Article 7.1 of the ECLSG (free exercise of functions) is not specifically referred to in the Constitution.

However, Article 22.1 of the LG provides that “The internal organisation and the proceedings of the gmina’s authorities are laid down in the gmina’s statute”. Article 23.1 states that “The councillor represents his/her electorate, maintains ongoing relation with inhabitants and their organisations, accepts postulates submitted to them and put the forward for consideration by the gmina authorities”. Article 25.1 establishes that “the councillors enjoy legal protection provided for civil servants”.

Article 19 of the LP states that “Internal organisation and the proceedings of the council and commission appointed by the council, as well as the rules of establishing clubs, are laid down in the (powiat’s) statute”. Article 21 states that “[powiats’] councillors are not obliged to follow instructions of his/her electorate (…)”. Article 21.3 states that “In connection with the execution of the mandate, the councillor enjoys legal protection provided for civil servants. The same applies to persons on the executive board”. Article 21.4 establishes that “The councillor is eligible for a daily allowance and reimbursement of travel expenses on terms laid down by the powiat council”. The following paragraph states that “The Minister responsible for the matters of public administration shall define, in a regulation, the maximum amount per diem allowances …”.

36. Article 7.3 of the ECLSG (incompatibilities). The LG and the LP contain many provisions concerning the functions and the activities, which are deemed incompatible with the holding of local elective office (see in particular Articles 24.a, 24.b, 24.c, 24.d, 24.e, 24.f, 24.g, 24.h of the LG and Articles 23 and 24 of the LP).

37. Article 8 (paragraphs 1, 2 and 3) of the ECLSG (administrative supervision of local authorities’ Activities). Article 171 of the Constitution establishes the main rules, i.e. “1. The legality of Actions by a territorial self-government authority shall be subject to review. 2. The organs exercising review over the Activity of units of territorial self-government shall be: the Prime Minister and voivodes and regarding financial matters - regional audit chambers. 3. On a motion from the Prime Minister, the Sejm may dissolve a constitutive organ of territorial self-government if it has flagrantly violated the Constitution or a statute”.

Article 184 of the Constitution states that “The Chief Administrative Court and other administrative courts shall exercise, to that extent specified by statute, control over the performance of public administration. Such control also extend to judgements on the conformity to statute of resolutions of organs of local self-government and normative Laws of territorial organs of government administration.”

Article 18a and Chapter 10 (Articles 85 – 102) of the LG as well as Article 16 and Chapter 8 (Articles 76 – 90) of the LP contain detailed provisions in this respect.

Other rules are set forth in the Law of 5 June 1998 on central government administration in voivodships.

38. On this legislative basis8, a distinction must be drawn between internal and external supervision of local (and regional authorities). Internal supervision is exercised by the municipal council, powiat council (or voivodship diet), which supervises the Activities of the administrative board and of local or regional bodies. To this end, the council (or diet) convenes a meeting of the review committee, which is made up of local or regional representatives other than the president or vice-presidents of the council (or diet) or members of the administrative board. The review committee gives its opinion on implementation of the local or regional authority’s budget and submits a motion to the council (or diet) on the discharge or otherwise of the administrative board; this motion is then submitted to the regional audit office for an opinion.

39. The main purpose of external supervision is to ensure the lawfulness of local and regional authorities’ decisions. Criteria for expediency are only applied in external supervision of local authorities in relation to tasks delegated to those authorities by the state administration. The law clearly states how such criteria are to be applied, based primarily on a clear demarcation between authorities’ own tasks and delegated tasks. Supervision is only exercised retrospectively and is confined to those situations set out in the aforementioned legislation.

40. Decisions in breach of the law may be declared null and void by the supervisory authorities within thirty days of receipt. They may be set aside either totally or partially. By declaring a decision null and void, the supervisory body stays its execution. The voivod refers partially set aside decisions to the council or diet for reconsideration within a set deadline; once that deadline (thirty days following receipt of the text of the decision in question) has expired, the supervisory body may challenge the decision of the local or regional council (or diet) before the administrative court; in such cases, the court decides whether or not to stay execution of the Law in question. Where the infringement is only minor, the supervisory body simply notes breaches without revoking the decision.

41. In the supervision of tasks delegated to a local or regional authority by the state administration – where criteria for expediency are therefore applied in addition to those for legality – the voivod may stay execution of the decision and refer it for reconsideration, stating his or her objections and setting a deadline within which the matter must be resolved; if the ensuing new decision fails to address these concerns, the voivod may revoke it and issue an alternative order, of which he or she must inform the leadership of the local council or diet and the appropriate minister. This alternative order enters into force thirty days after it is issued, provided that the minister in question does not take a different decision on the matter within that period.

42. At the Prime Minister’s request, the parliament (Sejm) may vote to dissolve the council (or diet) of a local or regional authority’s council (or diet) - resulting in the simultaneous dissolution of all other organs of the authority in question - if the latter repeatedly breaches constitutional or legislative provisions. In such cases, the Prime Minister designates a person to take responsibility, on a provisional basis, for exercising the functions of the council and other organs of the local or regional authority until fresh elections are held.

43. Where a local or regional authority’s organs have failed to perform their public tasks effectively for some time and there is no prospect of rapid improvement, the Prime Minister may suspend that authority’s organs, deciding on management by a government commissioner for a two-year period (unless council or diet elections are held within that time). Before deciding on management by the government commissioner, the voivod must forward his or her comments to the local or regional authority, calling upon it to immediately submit an amended programme. Local and regional authorities can challenge the decision related to their suspension.

44. Local and regional authorities have the right to appeal to the administrative court against decisions of the supervisory body concerning them, on grounds of illegality, within thirty days. A decision of the council (or diet) constitutes the necessary basis for such an appeal. Municipal or powiat joint ventures (and other groupings of municipalities or powiats) whose legitimate interests, powers or competencies have been injured also have the right to lodge such appeals with the administrative court. Lodging of a complaint does not stay execution of the decision in question. In urgent cases, however, the court may stay implementation of the decision, either on its own initiative or on the request from one party. Where, in upholding a complaint, the administrative court sets aside a decision taken by a body responsible for supervising local or regional authorities, the court’s ruling may be appealed on points of law.

45. External financial supervision is exercised primarily by regional audit offices. Procedures for such supervision are governed by the Law of 7 October 1992 (with subsequent amendments) on Regional Audit Offices. Regional audit offices have government supervisory bodies status. The role of regional audit offices is to supervise the Activities of local and regional authorities in areas such as financial matters and management – including the collection of taxes – and public procurement. The basic criteria for such supervision are the compliance of decisions with the law and the conformity of documentation with the Actual situation. When supervising government tasks delegated to local and regional authorities, criteria of expediency, reliability and efficiency are also applied. In the event of a serious violation, before declaring a decision null and void the office informs the local or regional authority, indicating the necessary modifications. Should the competent organ of the local or regional authority fail to make those modifications before a set deadline, the office’s board declares the decision totally or partially null and void. In the event of a minor violation, the office does not declare the Law in question null and void, but simply suggests the necessary modifications.

46. The National Supreme Audit Authority, governed by Article 203.2 of the Constitution and the Law of 23 December 1994 (with subsequent amendments), is the highest state body, itself subject to auditing by parliament, which monitors the Activities of central government bodies, the National Bank of Poland, state corporations and other government bodies. It can also monitor local and regional organs, corporations and other local and regional bodies, focusing primarily on implementation of the state budget and the enforcement of Laws and other legislation concerning the financial, economic, administrative and organisational Activities of the legal entities subject to its supervision. Supervision of local and regional authorities is based on criteria of legality, good economic management and reliability; in the case of tasks delegated to municipalities by the state administration, these are supplemented by criteria of expediency and efficiency. The National Supervisory Authority has branches, which forward the findings of their main inspections of the Activities of local and regional authorities to the respective voivods and the deliberative bodies of the authorities inspected. Inspections may be conducted at the request of parliament, the president of the Republic or the Prime Minister, or at the National Supreme Audit Authority’s own instigation. Ordinary inspections are carried out periodically according to a timetable drawn up by parliament, but additional inspections may also be conducted.

47. It should be also reminded that the Chief Administrative Court (Article 184 of the Constitution) shall exercise, to the extent specified by statute, control over the performance of public administration. Such control shall also extend to judgments on the conformity to statute of resolutions of organs of territorial self-government and normative Laws of territorial organs of government administration”.

48. Article 9 (paragraphs 1-8) of the ECLSG (financial resources of local authorities). Article 167 of the Constitution states that “1. Units of territorial self-government shall be assured public funds adequate for the performance of the duties assigned to them. 2. The revenues of units of territorial self-government shall consist of their own revenues as well as general subsidies and specific grants from the State Budget. 3. The sources of revenues for units of territorial self-government shall be specified by statute. 4. Alterations to the scope of duties and authorities of units of territorial self-government shall be made in conjunction with appropriate alterations to their share of public revenues”. Paragraphs 1 and 4 represents the “connection principle” which therefore deserves a constitutional protection.

In accordance with Article 165.1, “units of territorial self-government shall possess legal personality. They shall have rights of ownership and other property rights.”

The LG and the LP also refer to local authorities’ financial resources (LG: Articles 7.3, 8.3, 8.4, 8.5; 43-50 on municipal property and 51-63 on gminas’ financial management. LP: Articles 7.3; 46-51 on powiat’s property and 51-65 on powiat’s finances.

Other rules are contained in the Law of 26 November 1998 on the Income of Local Authorities, in the Law of 26 November 1998 on Public Finances and in the Law of 12 January 1991 on Local Taxes and Charges.

49. On the basis of this legislation, local authorities are entitled to financial resources of their own (including property), which they may dispose of freely within the framework of their powers (see Article 9.1 ECLSG).

A constitutional guarantee (Article 167.1 and 167.4) is established to ensure that financial resources are commensurate with the responsibilities provided for by the law (see Article 9.2 ECLSG). This guarantee is specified in Article 7.3 of the LG which establishes that “The delegation of new tasks to the gminas, by virtue of law, requires the provision of funds necessary to execute them, in the form of the increase of income or subventions (…)”. Other provisions in this respect are contained in Article 8. A similar guarantee is established for powiats in the LP, Article 7.3.

In compliance with Article 9.3 of the ECLSG, part of gminas’ financial resources derive from local taxes (established by law, Articles 54 of LG) and charges of which, within the limits of the law, they have the power to determine the rate. Article 168 of the Constitution states that “To the extent established by statute, units of territorial self-government shall have the right to set the level of local taxes and charges”. The law defines the maximum tax rate. Gminas are not allowed to introduce new types of taxes (or charges). An exception is made for the self-imposed taxation of inhabitants to finance certain public needs, which must be approved by a local referendum (Article 12.1 of the LG). The powiats (and the voivodships) do not have their own taxes (except through ad hoc referenda).

The financial systems on which resources available to local authorities are based is quite diversified (see Article 9.4 of the ECLSG). Article 54 of the LG and Article 56 of the LP contain the list of, respectively, gminas’ and powiats’ income sources.

50. General grants are paid to gminas, powiats and voivodships. These grants are mainly related to education and road construction. Earmarked subsidies are also paid to local and regional authorities. In addition, voivodships have the possibility to co-finance specific projects on the basis of special regional contracts with central authorities. Compensation is paid to gminas whose basic tax revenue per inhabitant is less than 85% of a similar index calculated for all municipalities. For purposes of horizontal equalisation (see Article 9.5 of the ECLSG), municipalities whose basic tax revenue per inhabitant is greater that 150% of the index calculated for all municipalities consequently finance the residual compensation fund of the general grant.

A particular system of equalisation compensation was also introduced for powiats and voivodships. EU pre-accession funds are also meant to support financially weak regions.

The law does not establish, apart from specific cases, whether and how local authorities shall be consulted, in an appropriate manner, on the way in which redistributed resources are to be allocated to them (see Article 9.6 of the ECLSG).

Under the Law of 26 November 1998 on public finance general grants (unassigned financial state transfers) are distributed to local authorities. Municipalities are free to use them for operational expenses or investments (see Article 9.7 of the ECLSG). Subsidies (earmarked transfers) are granted to local authorities to co-finance their investments, to carry out delegated and own tasks or for the elimination of direct threats to security, law and order.

Local authorities are allowed to resort to short, medium and long-term borrowing. They may use credit to cover budgetary deficits and to finance expenses not covered by income (see Article 9.8 of the ECLSG).

51. Article 10 of the ECLSG (local authorities’ right to associate). The right of local authorities to associate is directly granted by Article 172 of the Constitution, which establishes that “1. Units of territorial self-government shall have the right to associate. 2. A unit of territorial self-government shall have the right to join international associations of local and regional communities as well as cooperate with local and regional communities of other states. 3. The principles governing the exercise of the rights referred to in paragraphs. 1 and 2 above by units of territorial self-government shall be specified by statute”.

Other provisions, in this respect, are contained in the LG (Articles 64-75, Chapter 7 on Conferences and agreements between gminas), in the LP (Articles 65-75, Chapter 7 on Consortia Associations and Conferences of Powiats) and in the Law on participation of local and regional authorities in international associations.

52. Article 11 of the ECLSG (right of local authorities to a recourse of a judicial remedy when their rights are violated). 165.2 of the Constitution states that “The self governing nature of units of territorial self-government shall be protected by the courts.” Article 166.3 of the Constitution states that “The administrative courts shall settle jurisdictional disputes between units of territorial self-government and units of government administration”. Other rules in this respect are described under the paragraphs of this report related to Article 8 of the ECLSG.

Article 191.3 of the Constitution states that the constitutive organs of units of territorial self-government may make applications to the Constitutional Tribunal regarding matters specified in Article 188. According to Article 188.3, the Constitutional Tribunal shall adjudicate regarding the conformity of legal provisions issued by central State organs to the Constitution.

V. THE CONCRETE FUNCTIONING OF LOCAL AND REGIONAL DEMOCRACY: PROBLEMS AND PERSPECTIVES

1. The comments collected during the Rapporteurs’ official visits to Poland

53. On the occasion of their first official visit (Warsaw 16-17 May 2002), the Rapporteurs collected important information concerning the functioning of local and regional democracy in the country as well as on the implementation of the territorial reform.

On the occasion of the second visit (5-7 September 2002), they noted that the next local and regional elections (for gminas, powiats and voivodships) will take place on 27 October (first round) and 10 November 2002 (second round if necessary). The final decision on the date was taken by the Prime Minister.

54. During their meetings at the Ministry of the Interior, the Rapporteurs noted opinions on the implementation of the reform. In this context, they were informed that the Parliament recently adopted a number of laws related to the direct election of mayors (for gminas only), the electoral system and the Capital City of Warsaw. (see paragraph 24)

55. More generally, the representatives of the Ministry of the Interior expressed the view that there is a need to expand the financial autonomy of powiats and voivodships in connection with their developing responsibilities. In this respect, the importance of increasing the part of shared taxes of powiats and voivodships was stressed9. This opinion was confirmed by the representatives of the Ministry of Finances, who mentioned a draft law prepared by the said Ministry aimed at increasing the financial autonomy of all Polish local and regional authorities. This draft was recently examined by local and regional authorities through the joint committee (see above) and it should be presented by the Ministry to the Parliament with a view to its final adoption. Apparently, this draft law is now again at the Ministry of Finance for final discussion.

56. At the Ministry of Justice, the Rapporteurs collected information on local authorities’ judicial protection. They noted that in order to check the constitutionality of the laws, local and regional authorities largely make use of their right to lodge an appeal before the Constitutional Court. In this framework, following the data provided (May 2002), in 2001, 36 appeals were submitted by local and/or regional authorities (31 gminas, 3 powiats, 2 voivodships) before the said court. These appeals notably concern the lack of financial resources to perform the transferred/delegated responsibilities (in connection with Article 167 of the Constitution, see above).

During the meeting with the President of the Constitutional Court, the Rapporteurs noted that the Court often receives cases concerning property issues. Property rights of local self-government are guaranteed under Article 165 of the Constitution. Article 165 should be taken into account as constitutional guarantee and municipalities cannot loose their property without proper compensation (see also Article 21.2 of the Constitution).

57. The Rapporteurs noted the important role of the Ombudsman in controlling that the Constitution is fully respected and that the legal texts are correctly implemented by the public authorities concerned included local and regional authorities.

In this context, the Rapporteurs were informed that the Ombudsman is currently examining a number of appeals lodged before the Constitutional Court by several local authorities composing the capital city of Warsaw. These appeals, also addressed to the Congress10, refer to the lack and/or inappropriate consultation of local authorities and/or local inhabitants during the drafting process of the Law on the capital city of Warsaw. The Rapporteurs informed the Ombudsman that the Congress will not interfere in any ongoing judicial procedures in this respect.

58. On the occasion of their first meeting with the Parliament Committee responsible for local and regional self-government, the President of the Committee referred to the importance of the new law, adopted on 20 June 2002, on the direct election of mayors, the draft law on local and regional finances, the law concerning the reduction of the number of councillors and the law on the capital city of Warsaw. Concerning the latter, he noted that when at the time of its drafting, the joint committee (see above) was not consulted simply because it did not exist yet. With this in mind, the municipalities concerned were consulted directly by the Parliament.

59. During the meeting, the Rapporteurs also noted the opinion that the Parliament and the Government are willing to fully implement the reform. However, it was stressed that the very ambitious objectives of the latter created strong financial tensions and burdens, which risk slowing down the whole decentralisation process. This seems to be particularly true in the sector of public education. In this respect, following the President of the Senate Committee, the current above-mentioned laws would be aimed at reducing these tensions and burdens and making the process easier. The opinion that economic reforms should precede the implementation of the territorial reform was also noted by the Rapporteurs.

60. In this respect, the Rapporteurs took also note of the opinion of qualified experts11. Following these opinions, territorial self-government in Poland is apparently entering a difficult stage of its development. These opinions also indicate that a decrease of public confidence in self-government authorities started becoming visible. This trend seems to be ignored by a number of public Actors who, on the contrary, appear interested in favouring a recentralisation process. It is self-evident that local and regional authorities, without a strong social support, could lose their powers and influence. In the long run, they could be unable to resist powerful political pressure from well organised groups. In several cases these groups were strong enough to stop decentralisation and even push back the changes already implemented.

61. The reasons for this recentralisation trend seem to be of a different nature. Following the point of view of the experts mentioned above, they can be summed-up under the following points (referring to specific observed cases) :

a) the citizens’ involvement in public life is decreasing, notably at local and regional level, as well as their support to local non-governmental organisations;

b) the State education policies in the field of public participation in public life are not adequate to face this lack of support;

c) central administration was not sufficiently reorganised to meet the needs of new territorial organisation and the subsequent share of public responsibilities; (some ministries did not interrupt their Activities at local and/or regional level, even if, by law, these Activities should be directly managed under the responsibility of self-government authorities. This process seems to intensify due to the expectations linked to EU funding);

d) the professional training of local and regional staff officers is below standard;

e) corruption examples appeared at local/regional level affecting people’s consideration of local and regional public administration12;

f) there is a lack of financial resources at local and regional level which hampers fair and rational local economies as well as co-ordinated and concise regional development policies. The financial dependence of local and regional authorities on central authorities leads to their subordination to central government and to the creation of client-type relations. The shortcomings of the public finance system are particularly visible in the powiats and voivodships;

g) some elected heads of local and regional authorities are over-influenced by their political party apparatus. In this respect, the interests of political parties would prevent self-government objectives;

h) political parties’ interests have the priority over local communities’ objective needs. Local and regional administrations are too politicised. Personnel policies within local and regional administrations are subject to the interests of local pressure groups or political parties: resulting, at times, with incompetent personnel being recruited;

i) despite official declarations, many politicians on the national scene are opposed to the decentralisation process because the limitation of the power of central government necessarily leads to the limitation of the ruling parties’ powers;

j) concerning the regional sphere, the creation of two parallel political public powers (the voivodships authorities and the voivods) caused difficulties in the good management of people’s interests. In some cases, this is probably due to permanent political conflicts which oppose voivodships and voivods (when they belong to opposed political parties). In other cases, the system proved itself as ineffective due to the predominance of political interests over community interests (when voivodships and voivods belong to the same political parties).

62. With this in mind, during their meetings with the representatives of local and regional authorities (met on the occasion of both visits, see lists appended to the visits’ programmes), the Rapporteurs noted the following considerations and recommendations :

a) the implementation process is slowing down. The Parliament and the Government deliberately reduce the impact of the reform by not transferring or taking away a growing number of tasks from local and regional authorities. Examples of this, even if minor, can be made in connection with the following local and regional authorities’ responsibilities: secondary art schools, sanitary inspection, school headmasters, health boards, labour offices, forestry, agriculture; police, fire-brigades, specialist schools;

b) some transferred responsibilities are not full and exclusive. Central authorities still interfere in the implementation of these responsibilities;

c) the government does not prepare the regulations necessary to implement the reform;

d) the Joint-Committee local/regional/central authorities is consulted only on official draft laws; for all other initiatives, local and regional authorities are consulted directly by the central authorities concerned on the basis of ad hoc procedures;

e) new responsibilities are delegated to local and regional authorities without the necessary financial resources to carry them out; (e.g. education, environment, intergovernmental co-operation);

f) the reduction in the number of local councillors may deprive some local communities of their elected representatives;

g) the bad macro-economic situation should not become a pretext for weakening local and regional democracy in the country and slowing down the decentralisation process;

h) responsibilities of voivodships, on one hand, and those of voivoids of the other, are not sufficiently defined by law. This can cause interferences and conflicts. The responsibilities should be more precise and clearly distinguished;

i) voivodships are ready to assume the responsibilities for which they were created; however, they assist in the recentralisation of their statutory competencies and financial means (notably concerning the distribution of EU funds);

j) taking into account the amount of responsibilities of voivodships and voivods, one could observe that the share of personnel between these two authorities is not proportioned to their tasks. Therefore, personnel should be transferred from central authorities to voivodships;

k) local authorities in Warsaw have not been properly consulted when the new law on the capital city was adopted;

l) there are still too many limits concerning the salaries of local and regional authorities’ elected and appointed representatives;

m) the supervisory Activities performed by central authorities’ representatives are not limited to controlling the legality of local and regional decisions (linked to their own responsibilities); a control of the expediency is often also performed, more particularly in cases when there is an additional funding from the State budget allocated to local and regional authorities for implementing their own tasks;

n) some earmarked subsidies should be replaced by unassigned general grants.

2. The impact of the European Union integration process over local and regional democracy13

63. In 1993, the EU member States designed the criteria to be respected by candidate countries in order to be accepted as new members (Copenhagen criteria). These criteria also refer to the existence of democratic institutions; in this framework, the decentralisation process is not addressed directly. However, the Rapporteurs considered that local and regional self-government issues are to be considered as part of the EU requirements about democracy.

64. With regard to financial resources made available to Poland (but also to the other candidate countries), the EU funding is currently divided into two different parts. The first part concerns the pre-accession funds, the second is related to the structural funds (available after the accession). As regards the distribution of the pre-accession funds, the Rapporteurs noted that Polish local and regional authorities play a limited role. Main decisions on allocation, intervention and implementation appear to be taken by the central government in connection with the European Commission. It seems that the voivodships authorities can participate in this process only by putting forward proposals in relation to the subdivision of the allocated funds among different projects.

65. In the future, the participation of local and regional authorities in relation to structural funds should be reinforced. Voivodships authorities should be entitled to play an essential role. In this regard, the Rapporteurs were informed that their participation will be probably limited to 20% of the global EU funding; the remaining 80 % would be spent on national infrastructure and on sectoral projects co-ordinated by individual ministers. The Rapporteurs were also informed that some ministries are already establishing their own regional (external) agencies to manage the said projects separately from voivodships authorities. The risk is that regional self-government authorities become “clients” of central administration, ready to distribute financial assistance according to its own criteria.

66. The Rapporteurs are fully aware that stable relations with large, experienced and financially powerful authorities allow a better monitoring of the above-mentioned funds. In Poland, for the time being, according to the EU authorities, central authorities seem to fulfil these requirements better than any other territorial authority. However, the Rapporteurs fear that the combination of the limited role of local and regional authorities with the necessity of centralising the decision making concerning EU funds could weaken the decentralisation process and the development of a balanced system of self-government in Poland. With this in mind, EU authorities should encourage the Polish Government to avoid situations where the EU funding process becomes a pretext to slow down the implementation of the decentralisation process in the country.

VI. MAIN CONCLUSIONS AND PROPOSALS

67. First of all the Polish authorities should be congratulated for the territorial reform adopted and implemented during the past decade. It represents a major legal and political achievement towards effective democracy, economic development and a quick integration of the country to the European Union. The creation of the three tiered self-government system represents a suitable framework to satisfy the citizens’ needs and interests at local and regional level. This system also constitutes an effective implementation of the subsidiarity principle defined by the ECLSG. Moreover, this reform is a model for several central and eastern European countries wishing to adapt their territorial organisation system to the emerging needs of their societies.

68. Further to the examination of the legislation in the field of local and regional self-government, the Rapporteurs observed that, in general, the legal foundations of local democracy have been properly laid down in 1990 and that, during the following decade, the initial reform was successfully completed by the creation of democratic, self-governing districts (powiats) and regions (voivodships). The Polish Constitution of 1997 contains large guarantees for the country local and regional authorities. This legal framework globally respects the principles contained ECLSG, ratified by the Polish authorities in 1993.

69. More particularly, concerning the local dimension, the Rapporteurs agree with the opinion14 that the establishment of self-governing municipalities contributed to transformations that went far beyond the improvement of public administration in the country. As the matter of fact, after 1990, the transfer of a great part of national properties to local authorities contributed to overcome the state monopoly in this field and paved the way for the creation of a real estate market. Local non-governmental organisations, local newspapers and local radio stations developed rapidly in parallel with municipalities. Banks specialised in serving local budgets were also gradually created and many supportive institutions co-operating with municipalities were established in the same period. Development of water supply, sewage systems and other components of the infrastructure gave employment to many people, by improving living conditions, particularly in rural areas. In a more general manner, local democracy resulted in a total transformation of the state’s organisations and public life. This transformation, followed by the regionalisation process started nine years later, is acknowledged as one of most successful reforms in Europe today.

70. The second round of the territorial reform initiated in 1999 appeared as a unavoidable second step designed to improve sustainable development policies and relieve central government of the tasks run under the old (communist) system. The relevant legal basis of the regions created by this second reform – the voivodships – is in line with the principles enshrined in the draft European Charter of Regional Self-Government approved by the Congress in 1997 and the legal text on regional self-government approved by the last Conference of European Ministers responsible for local and regional authorities (Helsinki, 27-28 June 2002).

71. As observed, by law, Polish voivodships perform development functions; they promote growth rather than render services; they play an economic role rather then an administrative one. The range of public services performed by voivodships is limited to those which are clearly of a regional character and cannot be executed by either gminas or powiats. This allows a clear share of public powers over the country and contributes to a better implementation of the subsidiarity principle. While retaining the unitary character of the State and the uniformity of its foreign policy, it is indeed a positive sign that the new Polish regions are also entitled to enter bilateral and multilateral co-operation with foreign partners. On this legal basis, the voivodships are likely to become one of the leading forces in the future Poland’s European integration.

72. The positive impression gained by the Rapporteurs in respect of this legal framework was undermined by a number of areas of concern in the practical field. The main concern is that over the last years the decentralisation process started slowing down. The Rapporteurs have the impression that, beyond objective difficulties - like the economic situation of the country and the fulfilment of the EU accession requirements - the origins of this problem are of a political nature. The Rapporteurs are surprised to note that no clearly oriented, long-term programme aimed at implementing the reform during the following years was approved by the Polish authorities after 1999. The Rapporteurs fear that the lack of such a programme, (to be adopted in consultation with local and regional authorities’ representatives), could undermine the smooth implementation of the reform in the future.

73. With this in mind, the Rapporteurs, think that local and regional authorities and their communities have to be reassured that the reform process, even with a number of difficulties, continues and is vigorously implemented by the State authorities, independently by the political colour of the ruling forces. The direct election of mayors could represent a way to improve citizens’ interest for public life at local level. Nevertheless, other concrete measures should be taken by the State authorities in order to reassure citizens that the decisions taken at local and regional level are adopted in their own interest and under the direct responsibility of the elected local and regional bodies; in this respect it is also important that political parties avoid considering self-governing authorities as a way to consolidate their political strength over the territory.

74. The above-mentioned governmental programme should favour the adoption of technical and legal regulations aimed at insuring the respect of the following principles and objectives:

a) in order to avoid confusion and possible misunderstandings, the legal share of responsibilities between, on the one side, local and regional authorities and, on the other, the Government authorities (both at central and peripheral level) should be constantly clarified and adapted in the light of the spirit of the reform. This share should not be undermined by the adoption of ad hoc measures. With this in mind, the share of responsibilities between gminas, powiats and voivodships should be also permanently clarified and updated in consultation with the associations concerned;

b) the gradual transfer of responsibilities to local and regional authorities must be accompanied by the transfer of the necessary financial resources to carry them out; the difficult economic conditions of the country should not represent an excuse to weaken the powers of local and regional authorities;

c) more particularly, the Polish authorities should take into consideration the possibility of authorising powiats and/or voivodships to levy their own taxes (within the limits of the law); in order to avoid creating an excessive financial burden for the citizens, this measure should be accompanied by the parallel withdrawal of a number of State taxes;

d) central authorities should insure that the control over the decisions taken by self-government authorities in the area of their responsibilities is strictly confined to the legality and does not refer to the expediency. This rule must be respected even when the financial resources allocated to local and regional authorities to carry out the above-mentioned responsibilities are directly transferred by the State authorities;

e) apart from exceptional cases described by law, the action and the application (before courts) of a decision of a self-governing authority by the competent supervisory central bodies should not stay its execution;

f) the power of the Prime Minister to suspend for a given time the self-governing authorities which failed to perform their tasks effectively should be restricted to exceptional cases clearly specified by law;

g) changes in local authority boundaries should be made after consultation with the local communities concerned, possibly by means of a referendum where this is permitted by law. This consultation must be done in the appropriate forms and refer to all the citizens concerned;

h) the “joint committee” formed by central, local and regional authorities’ representatives that allows them to be duly informed and consulted on initiatives taken by central authorities, should be given a permanent basis and refer to both government and parliament draft decisions (concerning laws, orders, decrees, regulations, technical projects etc.);

i) the conditions of service of self-governing employees shall be such as to permit the recruitment of high-quality staff on the basis of merit and competence; to this end adequate training opportunities, remuneration and career prospects shall be provided. Politicisation of self-governing employees should be avoided;

j) in order to avoid political conflicts or interferences in the functioning of self-government at regional level, the representatives of central authorities in the regions (voivods) should be civil servants. On this basis, a public register of voivods, recruited for their merit and competence, should be created;

k) central authorities should reinforce adequate training programmes of local and regional elected and appointed representatives. These programmes, which could be supported by territorial and European Institutions, should be carried out taking into account the main objectives of the reform implementation programmes.

As regards the relation with the European Union, the participation of local and regional authorities in the European funding process (notably with regard to the period subsequent to the accession to the EU) should be reinforced; it is not acceptable that the needs linked to the proper management of the above-mentioned funds slow down the decentralisation process or represent a reason for marginalising self-governing authorities; more particularly, the political role and the co-financing capacity of voivodships should be strengthened.

Transborder co-operation should be further developed by an appropriate decentralisation at local and regional level. Future reform projects should promote and facilitate transfrontier co-operation and the creation of Euro regions. This transborder co-operation should especially be strengthened along the Southern and Western border (future inner EU border) and special attention should be put to the Northern and Eastern border (future EU external border) for maintaining good neighbourly relations and appropriate transborder co-operation;

APPENDIX I

Programme of the first official visit of the Rapporteurs to Poland (16-17 May 2002) Warsaw15

* * *

List of participants of the representatives of self-government met by the Rapporteurs during their first visit on 17 May 2002

Mr Piotr Uszok President of the Association of Polish Cities
Mr Antoni Jankowski President of the Association of Polish Poviats
Mr Jan Zarębski Chairman of the Union of Polish Marshals
Mr Andrzej Gołaś Head of Board of the Union of Polish Metropolises
Mr Stanisław Bodys Head of Board of the Union of Polish Towns
Mr Mariusz Poznański Chairman of the Union of Rural Communes of the Republic of Poland
Mr Rudolf Borusiewicz Secretary General of the Association of Polish Poviats
Mr Andrzej Porawski Secretary of the Joint Committee of Central Government and Territorial Self-Government (on behalf of Association of Self-Government)
Mr Leszek Świętalski Head of the Board of Stare Bogaczowice Commune Association of Rural Communes of the Republic of Poland
Mr Krzysztof Dębski President of Kutno City, Association of the Polish Cities
Mr Andrzej Grzyb ex-Head of Board of the Ostrzeszów Poviat, Association of the Polish Poviats
Mr Włodzimierz Karpiński Vice-President of Puławy, Union of the Polish Towns
Mr Grzegorz Grzelak Chairman of Sejmik of the Pomerania Region (legislative body)
Mr Józef Jerzy Faliński Marshal of Zachodniopomorskie Region
Mrs Jolanta Gontarczyk Member of Board Mazowieckie Region
Mr Leon Kieres Councillor of Dolnoślaskie Region
Mr Henryk Makarewicz Vice-President of Sejmik of the Lubelskie Region.

Official programme and the list of participants of the second official visit of the Rapporteurs to Poland (5-7 September 2002, Warsaw and Bialystok)

* * *

List of persons met by the Rapporteurs during their second official visit to Poland (5-7 September 2002)

5 September 2002 (Thursday)

Mr Jerzy Mazurek, Deputy Minister in Ministry of the Interior and Public Administration

Representatives from the Central Government Administration from the Voivodship of Podlaskie:

Mr Anatol Borowik Director of Cabinet of Voivod,

Mrs Halina Ławniczuk, Deputy Director of Bureau of Director General

Mr Witalis Zielenkiewicz, Deputy Director of Law and Supervision Office

Stanisław Piekut Director of Finance and Budget Office

Mrs Grażyna Małaszyńska Superior Voivodship Inspector in Bureau of European Integration

Representatives of self-government of Voivodship of Podlaskie:

Mr Dariusz Ciszewski Vice marshal of Voivodship of Podlaskie

Mr Marek Jan Kozłowski Vice-president of City of Białystok

Mr Wiesław Kamiński Head of Regional Policy of Magistrate Office in Białystok

Mr Janusz Ostrowski Head of Architecture and Investment Office of Magistrate Office in Białystok

Mrs Bożena Zawadzka Deputy Head of Architecture and Investment Office of Gmina Office in Białystok

Mr Jacek Bogucki Starosta of Poviat Wysokomazowieckiego

Mr Jerzy Demiańczuk Deputy Mayor of Augustów Borough Council

Mr Jan Gradkowski Mayor of Juchnowiec Kościelny Borough Council.

6 September 2002 (Friday)

Locally elected Representatives who addressed an appeal to the Council of Europe:

Mr Krzysztof Brzózka Mayor of Warszwa-Włochy Borough Council

Mr Stanisław Faliński Mayor of Warszawa-Ursynów Borough Council

Mr Henryk Linowski Mayor of Warszawa-Ursus Borough Council

Mr Lucjan Jarczyński Acting Chairman of Warszawa-Wawer Borough Council

Mr Andrzej Wielowieyski President of Association “Metropolia Warszawa”

Mrs Katarzyna Pietrzyk Bureau of Ombudsman.

The Presidents and members of the Parliamentary Committee(s) responsible for local and regional self-government and leaders and members of the various political groups:

Mr Witold Gintowt-Dziewałtowski Member of Parliament (Sejm) Deputy Chairman of Sejm Committee for Local Self-Government and Regional Policy

Mr Paweł Poncyliusz Member of Parliament (Sejm),

Mr Michał Kamiński, Member of Parliament (Sejm),

Mr Jan Kochanowski Member of Parliament (Sejm),

Mr Tomasz Tomczykiewicz Member of Parliament (Sejm),

Mr Marian Janicki Member of Parliament (Sejm),

Mr Jan Orkisz Member of Parliament (Sejm),

Mrs Wanda Łyżwińska Member of Parliament (Sejm),

Mrs Alina Gajewska Bureau for Study and Expertise’s of Sejm,

Mr Zbyszko Piwoński Member of Parliament (Senate) Chairman of Senat Committee for Local Government and State Administration

Mr Zbigniew Zychowicz Member of Parliament (Senat) Deputy Chairman of Senat Committee for Local Government and State Administration

Mr Mieczysław Janowski Member of Parliament (Senat) Deputy Chairman of Senat Committee for Local Government and State Administration,

Ms Aleksandra Koszada Member of Parliament (Senat),

Mr Grzegorz Matuszak Member of Parliament (Senat),

City of Warsaw

Mr Wojciech Kozak President of City of Warszawa,

Members of the Constitutional Tribunal:

Mr Andrzej Mączyński Deputy Chairman of Constitutional Tribunal

Mr Jerzy Stępień Judge

Mr Mirosław Wyrzykowski Judge

European Commission

Mr John O’Rourke Deputy Head of the Delegation of European Commission in Poland

Representatives of the existing Associations of local and regional authorities of Poland:

Mr Andrzej Lubiatowski Director of Bureau of Union of Metropolises of Poland,

Mr Aleksander Nelicki Bureau of Union of Metropolises of Poland,

Mr Igor Zachariasz Bureau of Union of Metropolises of Poland,

Mr Paweł Tomczak Director of Bureau of Associations of Parishes of The Republic of Poland

Mr Grzegorz Zawistowski Bureau of Associations of Polish Povia

7 September 2002 (Friday)

Mrs Lilianna Mikołajczak Director of Department of Public Administration, Ministry of Interior and Public Administration,

Mrs Dorota Żebrowska Deputy Director of Department of Public Administration, Ministry of Interior and Public Administration,

Mr Adam Misiuwianiec Head of Office for Self-Government, Department of Public Administration, Ministry of Interior and Public Administration,

Mr Józef Płoskonka former Deputy Minister in Ministry of Interior and Public Administration,

Mrs Prof. Wisła Surażska Chairman of Centre of Regional Studies,Mrs Irena Dzierzgowska former Deputy Minister in Ministry of Education,

Mr Roman Gutkowski Head of Office for Foreign Affairs of “Trybuna” journal,

Mrs Jolanta Ziętek “Przegląd Samorządowy” journal,

Mr Krzysztof Zarzycki Interpreter

APPENDIX II

Appeals received by the Council of Europe's Congress of Local and Regional Authorities from a number of local authorities of Warsaw

Warsaw, 16 May 2002

 No.BR/236/2002

 

COUNCIL OF EUROPE

Palais de l’Europe

Avenue de l'Europe

F-67075 STRASBOURG CEDEX

Enclosed you will find Resolution no. 597/LIV/2002 of the Warsaw - Wawer Borough Council of 26 April 2002 concerning an appeal to the Council of Europe in protest against the passage of the 15 February 2002 Act on the Political System of the Warsaw Capital City by the Parliament of the Republic of Poland to eliminate Warsaw boroughs, including the Warsaw-Wawer Borough.

 

Acting Chairman of the

Warsaw-Wawer Borough Council

 

Lucjan Jarczyński

Resolution no. 597/LIV/2002 of Warsaw - Wawer Borough Council of 26 April 2002 regarding an appeal to the Council of Europe

Acting under the provisions of art. 18 section 1 of the 8 March 1990 Act on Local Self-Governments (Journal of Laws of 2001, no. 142, item 1591 with subsequent amendments), the Borough Council has decreed as follows:

§1

The Borough Council voices a protest against the Act on the Political System of the Warsaw Capital City, passed by the Parliament of the Republic of Poland on 15 February 2002, which anticipates the elimination of Warsaw boroughs, including the borough of Warsaw - Wawer.

The Borough Council is of the opinion that the amendments to Warsaw's political system, implemented by the Act as per section 1 above, have been introduced in gross violation of the principle of proportionality in view of the fact that the elimination of the Warsaw - Wawer Borough is not required for the improved functioning of the Warsaw Capital City. The Warsaw - Wawer Borough fully meets its constitutional and statutory obligations as well as its responsibilities before local residents. The Borough's continued existence does not pose a threat to the functioning of the Warsaw Capital City and the Warsaw Metropolitan Area.

The elimination of the Warsaw - Wawer Borough and the establishment of a municipal district in its place will deprive local residents of the right to influence their living conditions and will dissipate the Borough's achievements in 1994-2002 due to a significant reduction of financial resources allocated to those tasks. The parliamentary decision undermines the foundations and prerequisites for the development of a citizen society. During polls conducted in June 2000 and March 2002, the local community strongly opposed the plans to eliminate the Borough.

§2

The Borough Council hereby declares that the act as per §1 above stands in clear opposition to the provisions of the Introduction to the Constitution of the Republic of Poland, in particular the principle of social dialogue and aid; it violates the constitutional foundations of the political system of the Republic of Poland, including the principle of decentralisation as per art. 15 section 1 of the Constitution, and the principle of proportionality.

The above act has been passed and implemented in violation of the principles of a law-abiding State, without due consideration and prior analyses, as well as in violation of the provisions of the European Charter of Local Self-Government, in particular art. 4, section 3 and 6 and art. 5 in relation to art. 170 of the Constitution of the Republic of Poland, art. 11 of the above Charter, art. 2, art. 45, section 1, and art. 165, section 2 of the Constitution of the Republic of Poland. The passage of the above act contradicts the principle of local autonomy.

In view of the fact that the Act on the Political System of the Warsaw Capital City violates the international obligations imposed on the Republic of Poland under the European Charter of Local Self-Government, as well as the provisions of art. 9, art. 87, section 1, and art. 91 of the Constitution of the Republic of Poland pursuant to the above, the Warsaw - Wawer Borough Council hereby places the Chairman of the Borough Council under obligation to notify the Council of Europe of the situation and to request assistance to ensure that the above obligations - which are of fundamental importance for both Poland and Europe - are not only declared but also observed with due diligence.

§3

The provisions of this ordinance will be executed by the Chairman of the Borough Council.

§4

This resolution comes into force upon passage.

Acting Chairman of the

Warsaw - Wawer Borough Council

Lucjan Jarczyński

 

Warsaw, 13 may 2002 r.

 

Mr. Riccardo Priore

 

We hereby would like to inform you that Parliament of the Polish Republic onMarch 15, 2002, passed a law on the structure of the capital city of Warsaw which result is liquidation of Warszawa-Włochy Gmina and Warszawa-Ursus Gmina.

Passing this law without any questioning and agreement of public communities of Warszawa-Ursus and Warszawa-Włochy is in conflict with the lines of the European Chart of the Local Municipality and of the Constitution of the Polish Republic.

Our public communities disagree with above-mentioned. The Council of Warszawa-Wlochy Gmina on April 23,2002, and the Council of Warszawa-Ursus Gmina on April 26, 2002, undertook the resolutions 390/XLII/2002 34/XLIX/2002 to notify the European Council of the existing situation and request to undertake any action with the Government Of the Polish Republic to stop the process.

 

Yours sincerely

Krzysztof Brzózka

Mayor of Warszawa-Włochy Gmina

Resolution No 34/XLIX/2002

of the Council of Warszawa-Ursus Gmina

passed on April 26, 2002

regarding a petition to the European Council

Acting under art. 18, item 1 of the law of March 8, 1990 on gmina municipality

(Dz.U.2001No 142, pos. 1591 with amendments)

The Council of Warszawa-Ursus Gmina

undertakes, as follows:

§1

1. The Council of Gmina as a statutory representative of local community of Warszawa-Ursus expresses its protest against passing the law on the structure of the capital city of Warsaw by the Seym of the Polish Republic on March 15, 2002, which results in liquidation of Warszawa-Ursus Gmina.

2. The Council of Gmina is of an option that the necessary repair of the structure of the capital city of Warsaw was made in the law, mentioned in item 1 above, with an open violation of the principle of proportion. To improve functionality of the city as a whole, it is not necessary to liquidate Warszawa-Wlochy Gmina. Gmina has well fulfilled its constitutional and statutory duties and is obligations to the citizens. Its further existence and activities do not cause any impediments to the appropriate functioning of the capital city of Warsaw and of the whole metropolitan region of Warsaw.

3. Liquidation of Warszawa-Ursus Gmina and creation of a district within its area means deprivation its citizens of the right to influence the conditions of the community life, and mishandling the achievements of the years 1994-2002. This also means liquidation of the basis and conditions for building a public community. After consultations carried out in June 2000 and in February 2002, local community expressed its objection to the planned liquidation of Gmina.

§2

1. The Council of Gmina declares that the law mentioned in §1 openly contradicts the foundations of the state philosophy of the Polish Republic, as expressed in the Preamble to the Constitution of the Polish Republic, and especially the principle of social dialogue and assistance, and infringes constitutional foundations of the system of the Polish Republic, including decentralization, as mentioned in art. 15, item 1 of the Constitution, and the principle of proportion.

2. Passing this law and its implementation were executed in conflict with the principle of the state of law, in great haste, and without any substantial analyses, and also in conflict with the lines of the European Chart of the Local Municipality – and especially with its art. 4, item 3&6 and art. 5 in connection with art. 170 of the Constitution of the Polish Republic. It threatens the nature of the local autonomy.

3. Because the law on the structure of the capital city of Warsaw infringes international obligations of the Polish Republic, as included in the European Chart of the Local Municipality, and also as enclosed in the provision of art. 9 art. art. 87, item 1 and art. 91 of the Constitution of the Polish Republic, The Council of Warszawa-Ursus Gmina obliges the Board to notify the European Council of the existing situation, and requests to undertake every action to cause that the obligations, fundamental both in Poland and Europe, not only be declared but also scrupulously observed.

§3

This resolution comes into force as of the day of its execution.

Jan Czarneck

Vice-president of Warszawa-Ursus Gmina Council

Resolution No 390/XLII/2002

of the Council of Warszawa-Włochy Gmina

passed on April 23, 2002

regarding a petition to the European Council

Acting under art. 18, item 1 of the law of March 8, 1990 on gmina municipality

(Dz.U.2001No 142, pos. 1591 with amendments)

The Council of Warszawa-Włochy Gmina

undertakes, as follows:

§1

1. The Council of Gmina expresses its protest against passing the law on the structure of the capital city of Warsaw by the Seym of the Polish Republic on March 15, 2002, which results in liquidation of Warszawa-Wlochy Gmina.

2. The Council of Gmina is of an options that the necessary repair of the structure of the capital city of Warsaw was made in the law, mentioned in item 1 above, with an open violation of the principle of proportion. To improve functionality of the city as a whole, it is not necessary to liquidate Warszawa-Wlochy Gmina. Gmina has well fulfilled its constitutional and statutory duties and its obligations to the citizens. Its further existence and activities do not cause any impediments to the appropriate functioning of the capital city of Warsaw and of the whole metropolitan region of Warsaw.

3. Liquidation of Warszawa-Wlochy Gmina and creation of a district within its area means deprivation its citizens of the right to influence the conditions of the community life, and mishandling the achievements of the years 1994-2002. This also means liquidation of the basis and conditions for building a public community. After consultations carried out in June 2000, and February 2002, local community expressed its objection to the planned liquidation of Gmina.

§2

1. The Council of Gmina declares that the law mentioned in §1 openly contradicts the foundations of the state philosophy of the Polish Republic, as expressed in the Preamble to the Constitution of the Polish Republic, and especially the principle of social dialogue and assistance, and infringes constitutional foundations of the system of the Polish Republic, including decentralization, as mentioned in art. 15, item 1 of the Constitution, and the principle of proportion.

2. Passing this law and its implementation were executed in conflict with the principle of the state of law, in great haste, and without any substantial analyses, and also in conflict with the lines of the European Chart of the Local Municipality – and especially with its art. 4, item 3&6 and art. 5 in connection with art. 170 of the Constitution of the Polish Republic. It threatens the nature of the local autonomy.

3. Because the law on the structure of the capital city of Warsaw infringes international obligations of the Polish Republic, as included in the European Chart of the Local Municipality, and also as enclosed in the provision of art. 9 art. art. 87, item 1 and art. 91 of the Constitution of the Polish Republic, The Council of Warszawa-Włochy Gmina obliges the Board to notify the European Council of the existing situation, and requests to undertake every action to cause that the obligations, fundamental both in Poland and Europe, not only be declared but also scrupulously observed.

§3

This resolution comes into force as of the day of its execution.

Tadeusz Kołodziejczyk

President of Warszawa-Włochy Gmina Council

Warsaw 24th May 2002

Council of Europe

Avenue de L Europe

F-67075 Strasbourg cedex France

The Management Board of the Gmina Warszawa-Ursynów (Municipality) presents the position of the Council of the Gmina Warszawa-Ursynów (Municipality) expressed on May 14, 2002, on the notification addressed to the Council of Europe of a breach by the Lower House of the Parliament of the Republic of Poland of international obligations set forth in the European Local Government Charter.

The Council of the Gmina Warszawa-Ursynów (Municipality) expressed an opinion on the basic discrepancy between the content of the Law of March 15, 2002, on the Constitutional System of the Capital City of Warsaw (Journal of Laws No. 41, item 361) and the fundamental principles of the system of government of the Republic of Poland raised in the introduction to the Constitution of the Republic of Poland, in particular, with the principle of social dialogue and the principle of auxiliarity. The said Law infringes upon the foundations of the system of the Republic of Poland, including decentralization referred to in Art. 15 Section 1 of the Constitution. The solutions adopted in the said Law infringe upon the principle of proportionality in an obvious manner.

Its adoption took place in contradiction to the principles of a state of law, expediently and without any analyses as to the merits; it was also contrary to the principles of the European Local Government Charter – including, in particular, its Art. 4 Sections 3 and 6, and Art. 5 in connection with Art. 170 of the Constitution of the Republic of Poland, as well as Art. 11 of the said Charter, and Art. 2, Art. 45 Section 1 and Art. 165 Section 2 of the Constitution of the Republic of Poland. This is an affront to the autonomy of the local community.

The Municipality Council is of the opinion that the necessary repair of the organisational system of the capital city of Warsaw was achieved under the said Law in blatant breach of the principle of proportionality because liquidation of the Gmina Warszawa-Ursynów (Municipality) is not necessary to improve the functioning of the City as a whole. The Municipality meets its constitutional and statutory obligations, as well as the local obligations to residents, in a satisfactory manner. Its continued existence and activities do not pose any obstacles to the correct functioning of the capital city of Warsaw and the entire metropolitan area of Warsaw.

Liquidation of the Gmina Warszawa-Ursynów (Municipality) and the establishment on the site thereof of an auxiliary unit (district) in the great Municipality of Warsaw means in practice, that the residents of Ursynów would be deprived of the direct influence on the conditions of collective life and the achievements of the Municipality from the years 1994 – 2002 would be wasted. This also means liquidation of the foundations and conditions for the development of a citizen community.

In the framework of consultations carried out in June 20002, and in common consultations (referendum) conducted on October 8, 2000, the local community expressed its objection to the project of liquidating the Gmina Warszawa-Ursynów (Municipality).

Because the Law also breaches the international obligations of the Republic of Poland adopted in the European Local Government Charter, and – therefore – the provisions of Art. 9, Art. 87 Section 1 and Art. 91 of the Constitution of the Republic of Poland, Gmina Warszawa-Ursynów (Municipality) requests that the Council of Europe undertake actions that would cause the said obligations, which are fundamental both in Poland and in the whole of Europe, are not only declared by the Lower House of Parliament of the Republic of Poland, but also conscientiously observed.

Stanislaw Faliński

Burmistrz

Qminy Warsawa-Ursynów

16 May 2002

Council of Europe
Palais de l` Europe
Avenue de l'Europe
F - 67 075 Strasbourg Cedex
France

Dear Sir/Madam,

Please find enclosed a translation of the Resolution No LIV / 716 / 02 of the Warszawa - Białołęka Municipality Council of 26th April 2002 on motion to the Council of Europe.

If you require any further information please do not hesitate to contact us. I look forward to your reply.

Yours faithfully

Chairman of the Warszawa - Białołęka Municipality Council

Jacek Kaznowski

Mayor of the Warszawa - Białołęka Municipality Council

Jerzy Smoczyński

Elwira Piotrowska M.A.

a sworn translator of English

ul. Pancera 9 m. 32

03-187 Warszawa

Translation from Polish

Resolution No. LIV/716/02 of the Warszawa Białołęka Municipality Council

of 26th April 2002

on motion to the Council of Europe.

Pursuant to Art. 18 para. 1 of the Law of 8th March 1990 on municipal self-government (O.J. of 2001, No. 142, item 1591 as amended), it is resolved as follows:

§1.

3. The Municipality Council protests against the adoption of the Law on the system of the capital city of Warsaw by the Diet of the Republic of Poland on 15th February 2002, as a result of which liquidation of the Warszawa Białołęka Municipality is to take place.

4. The Municipality Council believes that the necessary improvement of the system of the capital city of Warsaw was made in the Law, referred to in para. 1, with an apparent violation of the principle of proportionality, as for the purpose of improvement of functioning of the city as a whole, there is no need for liquidation of the Warszawa Białołęka Municipality. The Municipality performs its constitutional and statutory duties well as well as its obligations to the citizens. Its further existence and activity do not pose any obstacles in a proper functioning of the capital city of Warsaw and the entire Warsaw metropolitan area.

Liquidation of the Warszawa Białołęka Municipality and establishment of a quarter in its area shall mean deprivation of citizens' influence on conditions of the collective life and wrecking of achievements of the period of 1994-2002. It shall also mean liquidation of the grounds and conditions for building of the civic society. The local community, within the framework of consultations carried out in June 2000, and in February 2002, expressed their objection to the planned liquidation of the Municipality.

§ 2

The Municipality Council states that the Law, referred to in § 1, is apparently contradictory to the fundamentals of the state philosophy of the Republic of Poland, expressed in the Preamble to the Constitution of the Republic of Poland, and particularly to the principle of public dialogue and subsidiarity, it violates the constitutional bases of the system of the Republic of Poland, including those of decentralisation, referred to in Art. 15 para. 1 of the Constitution, and the principle of proportionality.

3. Adoption of the Law and its enforcement took place in a manner contradictory to the principle of the State of law, hurriedly and without any analyses on its merits, as well as contrary to the principles of the European Local Self-Government Chart, and particularly to its Art. 4 para. 3 and 6, and Art. 5, in connection with Art. 170 of the Constitution of the Republic of Poland, and to Art. 11 of the Chart, and Art. 2, Art. 45 para. 1 and Art. 165 para. 2 of the Constitution of the Republic of Poland. This threatens the essence of local autonomy.

3. Because the Law on system of the capital city of Warsaw violates the international obligations of the Republic of Poland adopted in the European Local Self-Government Chart, and therefore also the provisions of Art. 9, Art. 87 para. 1 and Art. 91 of the Constitution of the Republic of Poland. The Warszawa Białołęka Municipality Council obliges the Management to notify the Council of Europe of the situation occurred, with the request to undertake some actions that will cause that those obligations, fundamental both in Poland and in Europe, will be not only declared but also scrupulously observed.

§3.

The resolution becomes effective on the day of its adoption.

Chairman of the Warszawa Białołęka Municipal Council : Jacek Kaznowski, M. Sc., Eng. /-/ an undecipherable signature

Maria Jagielska, Legal Adviser /-/ an undecipherable signature

Repertory No 530/2002

1, Elwira Piotrowska M.A., a sworn translator in the Regional Court in Warsaw, certify hereby that the above translation is true to the original drawn up in Polish.

Warsaw, 16th May 2002.

1 The programmes of these two official visits are presented in Appendix 1.

2 It should be noted that the Ministry of the Interior and Public Administration did not address the Rapporteurs any official written comments on the preliminary draft report.

3 List communicated by the Permanent Representation of Poland to the Council of Europe.

4 The Constitution of the Republic of Poland edited by the Cabinet of the President of the Constitutional Court, ISBN 83-87515-163, Warsaw, 2001.

5 Law on gminas, announced on 12 October 2001 and published on 30 December 2001; Law on powiats announced on 21 October 2001 and published on 30 December 2001; Law on voivodships announced on 18 December and published on 30 December 2001.

6 In Poland, the ECLSG is applicable to gminas and powiats exclusively.

7 Law of 22 March 1990 on local authorities employees (with subsequent amendments) which is also applicable to voivodships.

8 Descriptions contained in paragraphs 34-43 are based on “Structure and operation of local and regional democracy: Poland, situation in 1999”, Report adopted by the Steering Committee on Local and Regional Authorities (CDLR) in December 1999 – Council of Europe publishing.

9 In particular, during the second visit, the Rapporteurs noted the detailed comments of the Ministry’s representative concerning the EU expert opinion on the level of competence of veterinary services at the powiat level.

10 See appendix 2

11 Self-Government and Local Democracy: Successes, Threats and Dilemmas”. Report prepared by the Foundation for Local Democracy, edited by Jerzi Regulski, President of the FLD.

12 In this respect, see also: Program Przeciw Korupcji, Opinia publiczna I urzędniczy o korupcji w samorządach – raport z badań. Autorka: Anna Kubiak, Warsaw 2002. According to this survey carried out by the central authorities, the corruption does not have a growing tendency and stays at the same level.

13 This chapter was prepared on the basis of the information provided by the deputy representative of the European Commission in Warsaw, met on 6 September 2002

14 See footnote 10

15 Document prepared by the Ministry of the Interior and Administration (Department of Public Administration) of Poland in co-operation with Council of Europe Secretariat (CLRAE Secretariat).



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