Report on Local and Regional Democracy in Spain - CG (9) 22 Part II

Rapporteurs: Jan OLBRYCHT (Poland) and Alan LLOYD (United Kingdom)

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EXPLANATORY MEMORANDUM

Introduction

In its Resolution 31 (1996), the Congress explicitly stated that reports on the situation of local and regional democracy in all member states would be produced over a reasonable period of time. Furthermore, Article 2.3 of the Statutory Resolution on the Congress adopted by the Committee of Ministers on 15 March 2000 stipulates that the Congress shall prepare, on a regular basis, country-by-country reports on the situation of local and regional democracy and shall ensure that the principles of the European Charter of Local Self-Government are implemented.

The Institutional Committee of the Congress, organ responsible for preparing reports, singled out Spain as one of the countries on which a report on the situation of local and regional democracy should be prepared in 2002. This proposal was approved by the Bureau of the Congress in June 2001. The Bureau appointed Mr Alan LLOYD (Chamber of Local Authorities, United Kingdom), Vice-President of the CLRAE, and Mr Jan OLBRYCHT (Chamber of Regions, Poland), Chair of the Institutional Committee of the Chamber of Regions, as co-rapporteurs for Spain. The consultant appointed to assist the rapporteurs was Mr Francesco MERLONI, Professor of Law at the University of Perugia (Italy) and member of the Group of Independent Experts on the European Charter of Local Self-Government. The rapporteurs would like to express their sincere appreciation to Mr Francesco MERLONI for his valuable contributions and assistance during the visits to Spain and in the course of the drafting of this report.

The rapporteurs received a large amount of documentation on local and regional authorities in Spain from a variety of individuals and they visited the country on two occasions:

(i) from 31 January to 2 February 2002 (Madrid and Leganés);

(ii) from 22 to 24 May 2002 (Barcelona and Lleida)

Prior to the visits, a questionnaire was sent to all the people with whom they were likely to be talking in Spain and the rapporteurs would like to thank all the politicians, civil servants and experts who replied in written to the questions put to them.

The programmes of the two visits and the persons met are included in Appendixes 1 and 2. The rapporteurs would like to thank the State Secretary for territorial organisation, Mr Gabriel ELORRIAGA PISARIK, and the senior officials in the Ministry of Public Administration for their willingness to provide them with information on the state of local and regional self-government in Spain. They would also like to thank everyone they spoke with in Madrid and Catalonia, local and regional government officials and elected representatives, experts and members of associations of local authorities who, despite their busy schedule, were kind enough to receive the Congress delegation and exchange views on prospects for local and regional democracy in Spain.

The main objective of this report is to provide a picture of the actual functioning of local and regional authorities in Spain, from a decidedly European perspective, and to comment on recent reforms of all local and regional public institutions in the country. The rapporteurs hope that a view from outside taken by a European body comprising local and regional elected representatives will assist Spanish society in finding the right organisational balances at a time when the second wave of decentralisation (the “pacto local”) would appear to be on the country’s political agenda.

1. First part: evolution of the institutional and administrative system in Spain

1.1 Overview

1. Spain, in the period of just over 20 years which has elapsed since the new (1978) democratic Constitution came into force, has evolved from a highly centralist State with substantially marginal local government to one of the most decentralised countries in Europe. This is the most recurrent statement to be found in descriptions of the Spanish system, whether by international organisations, Spanish institutions or independent experts.

2. The claim seems to be founded principally on a few basic facts of definite significance relating to the distribution of government expenditure and staff among the three principal tiers of government (central, regional and local). The details obtained in this respect during the actual visits are not always consistent but all go to show that as from the conferment on the Autonomous Communities (hereafter : Autonomous Communities or Comunidades Autónoma)s of powers in respect of health and education, regional-level spending has tended to equal (if not exceed) State spending (both can be placed in the region of 40-42% of the total), while the expenditure of local self-government entities works out at considerably less (around 15%). The aggregate of regional and local expenditure is henceforth decisively and irreversibly ahead of central government spending.

3. The data in question portray Spain as one of the most decentralised countries even amongst the federally structured European countries (Germany, Austria, Switzerland).

4. It is felt from this common assessment, based on comprehensive quantitative data, that relations between the decentralised tiers of government present a certain imbalance – to the advantage of the Comunidades Autónomas – in the attribution of powers. This prompts us to undertake a succinct recapitulation of the system’s recent development for a better overall understanding of the basic facts and the direction which institutional change has taken in the Spanish experience.

5. Everything began with a distinctly centralised State. The Franco regime applied constraint to the prerogatives and organs of local self-government (whose role and functions were marginal compared to the central government) and allowed no scope for nationalist movements (notably entrenched in the Basque Country, Catalonia and Galicia).

6. The new democratic Constitution (Article 137) contains elements continuing, as well as sharply diverging from, the former system. There is continuity in the retention of the local authorities, municipalities and provinces (hereafter : Municipios and Provincias), as the basic components, and the novelty lies in instituting (a reversion to the 1931 Republican Constitution) the Comunidades Autónomas, not so much as a third tier of devolved government but as the distinctive cardinal point of the whole system, both regulatory and administrative. The decisive fact is the conferment of considerable legislative power in important fields (itemised in Article 148 of the Constitution), although the State retains some general powers, also coming within the remit of local and regional government, in order to ensure that some unitary features are preserved (Article 49 para. 1.1 and para. 18; Article 150 para. 3). However, the Constitution does not define a state system of the federal type as would be the case if the Comunidades Autónomas had been the only entities besides the State to be assigned the function of constituent entities of the system as a whole (where Municipios and Provincias too are directly recognised and secured by the Constitution), or if they had been granted a kind of official and statutory superiority over the local authorities.

7. Regional self-government is of a variable geometry kind, built up gradually through the formulation of the Statutes. In this way, very pronounced autonomy was given to some of the Comunidades Autónomas (Basque Country, Catalonia, Canary Islands, Balearic Islands) compared to others, and the same applies to the scheme of local-self-government. This is due to differentials referred to as “hechos diferenciales”: language in Catalonia, the Basque Country, Galicia, the Balearic Islands, the Communities of Valencia and Navarra; a different institutional level from the Province in the Basque Country, the Canary Islands and the Balearic Islands; a distinctive financing system in Navarra, the Basque Country and the Canary Islands.

8. Regarding the statutory basis for the local authorities, apart from direct provision in the Constitution, the State reserves the right to establish through its legislation the foundations for the local government structure (powers and organisation), the electoral system, and local finance.

9. The Comunidades Autónomas have legislative power for the purpose of applying (and adapting to their own needs) the principles embodied in the fundamental State legislation, with special reference to apportionment (between Municipios, Provincias and the Comunidad Autónoma itself) of administrative responsibilities in the matters corresponding to their specific legislative spheres.

10. Power to lay down the regulations governing local authorities is thus shared between the State and the Comunidades Autónomas, the former being empowered to determine the essential and uniform aspects, the second to establish territorial variants (“guided” by the State’s general principles).

11. The Spanish Constitution accordingly took the fundamental option of introducing Comunidades Autónomas as entities with strong potential for innovation. This was done, however, without denying the local authorities specific constitutional guarantees (of existence and of unitary national-level regulation over the essential features).

12. The system’s subsequent evolution in practice has gradually eroded the complete institutional equality between the regional level and the local tiers of government, in the sense that the new force brought into being with the Comunidades Autónomas has become central to institutional reforms. This central position has not directly challenged the independence of the local authorities, but has made the regional level the focus of the imposing devolutionary mechanism as a whole, whereby administrative responsibilities and financial and human resources are passed down from the State.

13. While an explanation of the process in institutional terms is to be sought precisely in the constitutional approach adopted, a political explanation can be found in the role performed, very obtrusively in the last few years, by the nationalist political parties, ie those firmly anchored in individual regions. These parties have been able to negotiate the support of the central political parties in return for the attainment of the majorities needed to govern at national level (initially with the PSOE, then the PP), through the introduction of increasingly significant measures for the devolution of State powers to the Comunidades Autónomas.

1.2 Essential features of the system and relevant sources of law

14. For each level of government, here is an outline of its essential features, and the sources and principal substance of its regulatory apparatus.

1.2.1 Municipios

15. The rules governing the Municipios can be found in the Constitution, the Statutes of the Comunidades Autónomas, the national laws that lay the foundations for the local government system, and the regional laws (enacted by self-governing bodies) which incorporate the State regulatory apparatus.

1.2.2 BOUNDARIES

16. Alteration to the boundaries (by separation from a pre-existing municipality or by amalgamation of municipalities) and to the names of municipalities rests with the Comunidades Autónomas, nevertheless operating in accordance with a large number of State norms (which are embodied in the Ley Reguladora de las bases del régimen local – LRBRL Ley no. 7 of 2 April 1985 and in the Texto refundido de las disposiciones legales vigentes en materia de régimen local – TRRL, Real decreto legislativo no. 781 of 18 April 1986), which stipulate that an opinion must be sought from the Municipios involved and from the State Council (at national level) or any consultative organs set up by the Comunidades Autónomas. There is no compulsory referendum.

1.2.3 ORGANISATION – ORGANS OF GOVERNMENT

17. The basic and mandatory organs of government in the Municipio which collectively make up its Ayuntamiento are determined by State law (LRBRL above). The laws of the Comunidades Autónomas and the self-government statutes issued by the local authorities themselves may provide for other organs besides.

18. In all municipalities, the Alcalde, the Tenientes de Alcalde and the Pleno are mandatory organs. In large municipalities (more than 5 000 residents) provision is made for a Comisión de Gobierno, a collegial executive body.

19. These organs’ election arrangements and rules of ineligibility and incompatibility are in all cases governed by a uniform State law (Ley orgánica del Régimen electoral general (LOREG), Law no. 5 of June 1985) which, as the Comunidades Autónomas often point out, was passed at national level, even though the Constitution made no provision for such legislative power by the state. The electoral system (proportional with adjustment) gives the stronger political parties an edge but does not automatically guarantee the Alcalde a sure majority in the Pleno.

20. In very small municipalities (fewer than 100 residents) the organs making up the Ayuntamiento are not actually formed, but the local authority conducts its business in Concejo abierto with an Alcalde directly elected by the population and an assembly of citizens.

21. Relations between the executive (the Alcalde with his Tenientes or Comisión de Gobierno) and the assembly (Pleno) are along parliamentary lines. The Pleno wields the powers of law-making and control over the executive, in addition to some general administrative and directive powers (adoption of the budget and verification of the way it is applied, major contracts committing the Municipio over several years, acceptance of delegated powers, change in the use of public property). The role of the Pleno is heightened by the power to elect the Alcalde and the power to pass a motion of censure, which results in its automatic dissolution. There is no national law stipulating how the Pleno should be kept informed; this is left to each local authority to decide.

1.2.4 ADMINISTRATIVE ORGANISATION

22. The Alcalde heads the local administration and directly issues the principal administrative acts of the Municipio, including all measures relating to organisation of offices and staff management. The administration operates chiefly in support of the decisions taken by the Alcalde and the executive. It should be pointed out, however, that some public functions are set aside for funcionarios de habilitación nacional, - civil servants qualified at national level – in order to ensure that these functions are discharged with the requisite impartiality:

a) functions of authority, public acts and legal advice (invariably assigned to a secretary);

b) functions of internal audit of the economic and financial management and of the balance-sheet (invariably assigned to an official qualified at national level);

c) accounting and treasury functions (may also be assigned to officials not qualified at national level in exceptional cases).

There are two criteria to the recruitment of these civil servants: one national and one local. A national body, the Instituto Nacional de Administración Pública is responsible for selecting, training and qualifying civil servants who in order to be assigned to a local authority must sit a competitive examination which is organised at local level but which nevertheless is held according to national evaluation criteria. The Comunidades autónomas, particularly Catalonia, complain about this encroachment by national legislation on a matter which should fall under the responsibilities of the regions, and they are calling for these public service posts to be placed on a more territorial footing.

1.2.5 POWERS

a) Own powers

23. The national law (LRBRL) employs an altogether singular technique to define the powers of the Municipios. On the one hand (Section 25) it establishes a list of matters in which the law (at national or regional level, depending on the respective legislative powers) is to assign administrative functions, apparently of necessity even if only by way of participating in the exercise of functions vested in other tiers of government. Thus the national law does not directly assign powers but lays down criteria for the future assignment thereof, in all cases by law (these criteria include the general ones laid down in Section 2: decentralisation, and the closest possible correspondence of functions to the citizens’ needs (subsidiarity). Subsidiarity has not hitherto been adopted as a general principle in the statutes of the Comunidades autónomas.

24. On the other hand (Section 26) the law specifies a series of mandatory services for municipalities, with obligations to deliver which increase with population size. The services which the smaller municipalities are not required to deliver are provided by the provinces, which in any case render technical and administrative assistance to the municipalities (aided financially by their Comunidad Autónoma).

b) Delegated powers

25. The national law (Section 27) enables the State or the Comunidades Autónomas to delegate powers to the municipalities. The general principle is one of agreement with the municipality to which the power is delegated. In the event of mandatory assignment, the law stipulates that the necessary financial resources must be provided. Often the Comunidades Autónomas, according to certain associations of municipalities (in particular the Federacó de Municipis de Catalunya) tend to use delegation of powers rather than assignation of powers in their sectoral laws.

1.2.6 FINANCIAL RESOURCES

26. Article 142 of the Constitution formulates a dual principle: (i) financial resources must be adequate for the discharge of responsibilities, and (ii) local authorities should have their own revenue comprising local taxes and a share of national or autonomous community taxes. Moreover, Article 133 of the Constitution assigns to central government exclusive responsibility for regulating taxation. This explains why a power which is closely linked to the organisation of local authorities, one of the autonomous communities’ own areas of responsibility, is carried out at central level.

27. The constitutional principles are amplified in some respects by the LRBRL (laying down general principles) and chiefly by the Law on local financing-Ley reguladora de las Haciendas locales (LHL) (l.39/1988 of 28 December 1988).

28. Schematically, financial resources are made up as follows:

a) five readily assessable local taxes (predominantly tied to real estate); in 2000, this source accounted for about 49% of local authorities’ receipts;

b) the share in State taxes. The aggregate amount thus determined at national level is apportioned by the State among all the Municipios of Spain. The Comunidades Autónomas have no powers of intervention in the apportionment. This source afforded the municipalities 36% of their receipts;

c) municipal co-operation funds, set up by the Comunidades Autónomas; this is a rather modest source of finance;

d) returns on assets (6%) or loans (9%).

29. It is difficult to assess the extent to which financial resources correspond to the powers and responsibilities because of the disparity between the uniform system of local financing and the diversity of local situations with regard to the allocation of powers.

30. This is due either to the effect of self-governing legislative activity, or to the voluntary assumption of tasks by the local authorities. However, recently, local authorities have been submerged by tasks (not specified by legislation as being either delegated powers or the municipalities’ own attributions) which they discharge in application of the principle of proximity (for example, assuming responsibility for asylum-seekers and immigrants). Such a situation, quite rightly, is not satisfactory in the view of the local authorities and the rapporteurs agree with the representatives of the municipalities that the latter should be compensated for discharging these tasks or that the services in question should be dealt with at another level. In our view this should be given serious consideration. It would also appear to indicate that there is still an imbalance between certain tasks carried out by local authorities and the corresponding resources available to them.

1.2.7 INTER-MUNICIPAL CO-OPERATION

31. The basic principle is the municipalities’ freedom of association. This applies to the mancomunidades (provided for under Section 44 of the LRBRL), voluntary groupings of municipalities having their own legal personality and statute (which must be approved under arrangements stipulated by regional law).

32. The LRBRL provides for some partial exceptions to the principle of freedom of association: the Comarcas, the Distritos and the Areas metropolitanas.

National legislation (LRBRL, Section 42) delegates to regional law the authority to form comarcas, compulsory groupings of municipalities, provided that there is no objection by 2/5 of the municipalities concerned, representing at least half the population. Under no circumstances must the setting up of a comarca entail forfeiture of any of the member municipalities’ own powers. The majority of the statutes of the Autonomous Communities (with the exception of the more differentiated regions such as the Basque Country, Navarra, the Balearic Islands and the Canary Islands) make provision for the setting up of comarcas; however, the latter have been created only in a few regions. Catalonia considers comarcas as historic territorial units and consequently attempts to give them greater prominence. The main problem associated with the comarcas derives from the fact that they play an assistance and substitution role vis-à-vis the municipalities, particularly the smaller ones. This role is also assigned to the provincial Diputaciones.

33. Section 42 of the LRBRL authorises the Autonomous Communities to form áreas metropolitanas (metropolitan areas), which are also defined as local authorities “integrating” the municipios located in the area. Prior to the adoption of the 1978 Constitution, there was a special regime for the cities such as Madrid, Barcelona, Valencia and Bilbao, as stipulated in a law dating from the Franco area. Following the setting up of the Autonomous Communities, this legislation was repealed. In the case of the two main cities, it should be noted that the creation of the Comunidad autónoma uniprovincial de Madrid – in an area coinciding more or less with the metropolitan area – solves the problem of creating a competent authority, although the problem of recognition of a special legal status for the city of Madrid as the national capital remains. In Catalonia, the former Corporación metropolitana de Barcelona was dissolved by regional law no. 7 of 1987 and replaced by consortia and specialised local operational agencies which seems to be rather confusing for citizens.

34. Accordingly, to date little use has been made of comarcas (in 2000, they contributed only 0.5% to the overall expenditure of local authorities, and for the most part (3/4) use funds derived from their Comunidad Autónoma). By contrast, mancomunidades are found to be more commonly employed (there were some 900 in 1999).

1.2.8 Provincias

35. There are various categories of entities to be found at the intermediate level between Comunidades Autónomas and Municipios:

a) Diputaciones (provincial councils), ordinary law bodies present in most parts of Spain;

b) special institutions associated with the specific statutes of certain Comunidades Autónomas: Diputaciones del Régimen foral (in the Basque Country); Consejos and Cabildos insulares (in the Balearic and Canary Islands);

c) Comunidades Autónomas consisting of a single province to which the legal regime of the Comunidades Autónomas applies in practice.

36. Many institutional aspects of the ordinary-law Diputaciones are regulated in a manner similar to the Municipios.

37. In this report, we shall merely outline some of the distinguishing features.

1.2.9 BOUNDARIES

38. Alteration to provincial boundaries is the sole prerogative (Article 141.1 of the Constitution) of central government, which implements its decision in the form of an implementing act (approved by an absolute majority in parliament). It should be noted that the provinces are also the basic constituencies for electing the national parliament (four senators are elected in each province).

1.2.10 ORGANS OF GOVERNMENT

39. The provincial Diputación is the equivalent of the municipal Ayuntamiento.

40. Functions corresponding to those of the local Alcalde are assigned to the President of the Diputación, who is elected together with the Comisión de Gobierno (mandatory in all cases) by the Pleno de los Diputados (assembly of council members).

41. Relations between the executive and the assembly are also shaped according to the same principles as detailed in the section dealing with the Municipios.

42. The main difference lies in the indirect election of the Diputados: members are elected, in correlation with the success of each party in the municipal elections, by the municipal councillors meeting in special session1.

43. The fact that the Pleno of the Diputación is indirectly elected does not make the province an associative type of body but gives the Municipios very substantial weight in the affairs of the second-tier local authority.

1.2.11 ADMINISTRATIVE ORGANISATION

44. The same principles as stated for the Municipios apply.

1.2.12 POWERS

45. The province does not really hold powers in its own right; its basic task is to ensure “full and proper provision throughout the territory of the services in the municipal sphere of responsibility” (Section 31 LRBRL).

46. To that end, the province:

a) co-ordinates the activity of the municipalities;

b) provides the municipal councils with technical, administrative and financial assistance;

c) directly delivers the municipal services which are not provided by the smaller municipalities.

1.2.13 FINANCIAL RESOURCES

47. Given the general role and the responsibilities of the Provincias, the funding of the ordinary law Diputaciones displays marked contrasts with municipal finance.

48. The province’s own receipts (derived from taxes, special levies and sharing in municipal revenue) form a minimal proportion of total receipts (11% in 2000) while transfers from central government and the Comunidades Autónomas make up the bulk of income (76% in 2000).

1.2.14 Provisions common to the local authorities

49. National legislation (LRBRL) makes a number of provisions that apply to all local authorities. Two essential aspects of this set of rules can be highlighted:

a) acknowledgement of the full legal capacity of local authorities and of their autonomy for regulatory purposes (power to adopt independent and differing rules of procedure in accordance with national and regional law) and in political and administrative terms (power to adopt their own government policies and to approve administrative acts);

b) local authorities are not subject to external precautionary scrutiny of their acts; there is merely a duty of information (towards central government and the Comunidad Autónoma), which may lead to a request for review on grounds of legality alone and, if there is no response, to action before the administrative court;

c) there remain the forms of control over the organs of local government which, under a procedure comprising significant guarantees (the intervention of the Comunidad Autónoma and the Senate is required), may lead to their dissolution.

50. Elimination of external a priori controls is counterbalanced by the prominent role which civil servants qualified at national level perform, discharging mandatory functions in local authorities and being assigned duties of internal supervision (in respect of legality and economic and financial management).

2. Second part: the main problems encountered

2.1 Problems regarding the furtherance of local self-government

51. On the whole, the legal framework and the practical reality of the exercise of local government in Spain appear substantially consistent with the principles of the European Charter of Local Self-Government. According to certain people with whom members of the Congress delegation spoke, Spanish legislation, promulgated virtually in the same year as the adoption of the Charter, has indeed reflected its principles in many of the provisions made. It is worth noting that the Spainsh judiciary has later on taken into account Charter’s provisions.

52. An example is the constitutional and legislative recognition of local self-government (Article 2 of the Charter).

53. Another is the principle of the free election of local authority assemblies by secret ballot on the basis of direct, equal, universal suffrage (Article 3 of the Charter), which is partly weakened by the indirect election of the Pleno of the provincial Diputaciones in the provinces (nevertheless its democratic credentials are safeguarded by the fact that the municipal councillors are freely elected). The situation would have been different if the provinces had been assigned own powers distinct from those of the municipalities.

54. Even the provision for citizens’ assemblies is addressed in the case of Consejos abiertos, in the smaller municipalities.

55. The provisions of Article 4 of the Charter concerning powers are also fully addressed, in the legal sense, by the Spanish local government statutes.

56. The Spanish legal system provides for that own or delegated powers of local authorities may be conferred by the law of the State or of the regions (Article 4.1 of the Charter), just as it provides for the general competence of local authorities in representing the demands of their own population and consequently in assuming other functions than those expressly assigned by law (without impinging on those assigned to other entities (Article 4.2 of the Charter)). At the same time, the tendency for the Autonomous Communities to delegate, rather than assign powers is less in keeping with the principles of the Charter.

57. This feature is less pronounced in the case of the provinces, in that their task appears to be confined to co-ordinating and ensuring the effectiveness of municipal powers.

58. The principle of subsidiarity (Article 4.3 of the Charter) is also clearly upheld in national law as a guiding principle for State and regional legislation assigning powers to local authorities. This principle is not reflected in the same way in the statutes of the Autonomous Communities.

59. Compliance with the principle of the fullness and integrity of powers (Art. 4.4 of the Charter) is a more vexed question. The principle is apparently upheld from the viewpoint of the local authority’s independence in the exercise of its powers, unrestricted by outside intervention, while the model of the “circle of participation”, as it is called, seems quite well developed: national law stipulates the conferment of powers in certain matters, but such powers may also amount merely to participation by the local authority in the exercise of powers assigned to other tiers of government. This fairly common technique for fragmenting powers and dividing up areas of responsibility among the different administrative tiers would appear to be contrary to the principle of the attribution of full and exclusive powers.

60. The provisions on delegated powers are – in procedural terms –in accordance with the Charter: in the Spanish legal order, the local authority concerned must consent to delegation and retains complete independence as to the arrangements for the discharge of the responsibilities involved. However, there remains the problem of excessive use of delegation as opposed to attribution of powers.

61. The issue of powers does not, therefore, present itself in technical terms.

62. Conversely, some slight difficulty is observed at substantive level, that is regarding the effective conferment on local authorities of the “substantial share of public affairs” referred to in Article 3.1 of the Charter.

63. As indicated in the first part of this report, there is no doubt that over the past twenty years the Spanish government system has clearly given pride of place as regards the conferment of powers to the regional level represented by the Comunidades Autónomas, which have retained the bulk of the administrative functions passed down from central government (under the terms of the two Pactos Autónomicos of 1981 and 1992), instead of extending this devolution of powers to local government entities.

63 bis. Recently, according to some of the representative of local authorities, with whom we were in contact, a number of the initiatives taken by the national government have resulted, in their view, in precisely restricting powers of municipalities within the fields which could naturally be considered as local and in which local authorities would be expected by the population to have a greater say. Briefly, it was mentioned that the Spanish Government decrees-laws 4/2000 and 6/2000 would limit local authorities' powers in the field of town and spatial planning and management. In this respect, the Rapporteurs would like to highlight that in general local authorities are expected to play a significant role in these areas (in particular, in the spirit of the European Urban Charter) and should be given the power to exercise these functions to the benefit of the local population in order to satisfy their needs.

64. Various factors have operated in favour of the regional centralisation of powers. First there is the natural tendency of new institutions to consolidate relations with their citizens through the direct discharge of administrative tasks.

65. Then there is an objective difficulty in accepting local authorities as entities fit to exercise powers. One consideration on that score is the disjointed administrative fabric of the municipalities, some of which are disqualified by insufficient size and population; another is the unsuitability of the Provincias, at least as long as they continue to present themselves as a second tier with the purpose of enabling the exercise of functions by the Municipios, and not as potential recipients of powers (particularly those of more direct concern to larger areas; such powers tend, on this account, to be retained at regional level).

66. As regards the protection of boundaries (Article 5 of the Charter), Spanish national law fully satisfies the first criterion of prior consultation of the municipalities concerned, although it does not lay down a requirement for a compulsory referendum.

67. The Charter’s principles regarding independence in organisation and staff management (Article 6) are also fully complied with. This independence is complete, subject to compliance with certain general statutory principles. A number of problems remain with regard to the effective regulatory autonomy enjoyed by local authorities. Spanish municipalities have pointed out a risk of this independence being limited by two concurrent phenomena: (i) the fact that there are too many detailed provisions in national legislation and that of the Autonomous Communities which come into play before municipalities are able to exercise their regulatory powers; and (ii) provisions contained exclusively in national and autonomous community legislation pertaining to forced execution, inspection or sanction, which considerably limits the ability of local authorities to regulate the way in which they may exercise their own powers.

68. The provisions of the law (LRBRL and the electoral law) would appear overall to be in keeping with the principles of the Charter (Article 7) as regards the status of local government members in terms of the information rights to which they are entitled , and of their assurance of proper conditions (time and financial means) for full participation in the democratic affairs of the local authority. However, associations of municipalities are right to point to a shortcoming in the basic legislation: the absence of regulations and statutory and economic guarantees making it easier for former elected representatives to return to their work following the expiry of their term of office. Such a situation cannot but discourage a number of occupational categories, thereby excluding them from public elective duties.

69. In the matter of supervision, the Spanish regulatory system appears even to go beyond the requirements of the Charter by abolishing all general control, whether precautionary or retrospective, over the acts of local authorities where such control involves a power of approval by a higher authority; this is replaced by a duty to transmit the acts in question and a power to have acts deemed unlawful referred to or challenged before an administrative court. Once again, this broadly positive judgment should be qualified because of the large number of powers delegated under sectoral legislation (particularly in the legislation of the Autonomous Communities) in which case supervision of acts can become supervision of expediency.

70. Again, the principles of the Charter on financial resources, at least technically, appear to be complied with. This is true of the principle that the local authority’s independent means and its resources derived from local taxation should be adequate (about half the resources of the municipalities are of this type). The same applies to the principles of diversity of income sources and equalisation of transferred resources, the right of local authorities to be consulted, and the principle that the greater part of resources (whether raised locally or transferred) can be allocated by the local authorities as they see fit without the use of funds being unduly fettered.

71. It is more difficult to assess the extent to which the provision of financial resources is adequate for the responsibilities assigned. The representatives of local government (the FEMP organisation in particular) pointed to the inadequacy of resources especially where the higher tiers of government assign local authorities new responsibilities without altering the basis of local funding. What actually comes under discussion is the entire distribution of responsibilities, owing to the aforementioned imbalance in favour of the Comunidades Autónomas. In the event of a full review of the apportionment of powers between them and the local authorities, it would of course also be necessary to overhaul the local finance system, now capable of bearing aggregate expenditure above 15% of total public spending.

72. One problem which was not brought up by the local authorities, but which was raised by the Autonomous Communities, concerns the role played by the latter in local government funding. The FEMP seems attached to the current system of direct linkage to central government which regulates the taxes whose proceeds are collected by the local authorities and reapportions, according to its own criteria, the resources derived from local authorities’ share in national taxes, while the influence of the Comunidades Autónomas is altogether marginal.

73. In this respect, it needs to be ascertained whether or not the powers vested in the Comunidades Autónomas to regulate the system of local government (principally the power to apportion administrative responsibilities) are destined to secure them a more prominent role in future. The associations of local authorities in Catalonia (in particular the Associació Catalana de Municipis i Comarques) appeared to be more open towards strengthening the role of the Generalitat.

74. Local authorities’ right to associate (Article 10 of the Charter) is fully secured, both as regards the right to adopt forms of association and co-operation between municipalities (the very widespread rule is that of complete freedom to associate) and as regards membership of national or regional organisations for the representation and protection of local authorities. The Spanish association FEMP enjoys considerable prestige and has a remarkable capacity for negotiation at national level.

75. As to the legal protection of local self-government, Spain is one of the European countries which have made considerable headway in this field, having recently made an amendment to the law on the Constitutional Court for the specific purpose of enabling local authorities to appeal against national or regional laws considered prejudicial to local self-government. This procedure would however appear somewhat complicated and could be improved.

2.2 Problems regarding regional self-government

76. The question of regional self-government must be addressed in connection with the implications of the existence and growth of the Comunidades Autónomas for the autonomy of local authorities and in the light of certain problem areas of regional self-government as such.

77. We shall first of all look at the question of whether the pattern of regional self-government is uniform or diversified.

78. The Constitution made it possible to carry out a two-stage process: an initial phase allowed swifter attainment of autonomy for certain Comunidades Autónomas (7 out of 17) which, by virtue of “special” statutes, received a decidedly better package of powers than the others; in the second phase (1992-1994), the so-called “pactos autonomicos” of 1992 embarked on two types of procedure. Either powers were transferred (under Article 150(2) of the Constitution) through the enactment of national laws, or adjustments were made to the statutes of the Comunidades Autónomas which had initially received fewer powers. Both procedures placed the Comunidades Autónomas on a substantially equal footing (except for the retention of the “hechos diferenciales”). During the years that followed, and right up to 2000, the adoption of a uniform approach to the distribution of powers between central government and the Comunidades Autónomas (and consequently also of residual powers for the central government) made for a positive process of actual transfer from the State to the Comunidades Autónomas of both functions and staff, together with significant changes in the financing arrangements (the most important being the conversion of the principal State tax, namely income tax, into a tax shared between the State and the Comunidades Autónomas which henceforth receive over 30% of the yield).

79. Secondly, it can be emphasised that the material strengthening of the administrative position of the Comunidades Autónomas was not accompanied by a corresponding distribution of powers between them and the State.

80. The Spanish Constitution (in a similar manner to that of Italy and in contrast to the truly federal ones of Germany, Austria and Switzerland) has not dealt appropriately with this area and above all has not provided for any national body where the Comunidades Autónomas can actively participate in the most important institutional choices affecting them, whether in the shape of a second legislative assembly consisting of regional representatives or by means of consultative bodies more closely linking central government and the governments of the Comunidades Autónomas2. This results in a State with a self-governing (ie regional) make-up on a more competitive than collaborative footing. In this respect, it seems significant that litigation over conflict of powers (especially keen from 1984 to 1988) has been resorted to before the Constitutional Court (Tribunal Constitucional) which has ended up performing a function of arbitrator for the entire regionalisation process.

81. The one significant change made regarding relations between tiers of government dates back to 1994 with the formation of a Senate general committee for Comunidades Autónomas comprising twice as many senators as the normal committees. Their meetings may be attended by the presidents of Comunidades Autónomas and the members of the regional executives. However, in the estimation of all Spanish observers, this is a very unassuming reform since it falls far short of transforming the Senate into a chamber of Comunidades Autónomas and savours of the Senate’s weak legislative function.

82. The aforementioned limitations may turn out to be still more significant in future, bearing in mind the natural increase in the powers of the Comunidades Autónomas, with areas of great importance forming the preserve of regional action.

83. The State retains some legislative powers in respect of general principles to be followed in administrative action, but exercising such powers in an exclusive fashion may prove to be a source of later conflicts. Despite the relative success of the sectoral conferences, it would be preferable to grant the Comunidades Autónomas an active role as partners in formulating general rules intended to ensure both uniform observance of the statutory system and the necessary territorial differentiation. This is also true for the participation by regions in the framing and implementation of European Union policies. Given their responsibilities in specific areas certain regions such as Basque Country claim that they should participate in the Council of Ministers meetings of the Union, but the Spanish government considers that the country must be represented by the central government at the European level.

2.3 Problems regarding relations between Comunidades Autónomas and local authorities

84. The peculiar configuration of Spain’s devolutionary state system tends to place the Comunidades Autónomas and the local authorities in a competitive position with regard to powers and financial resources (central government, in the shape of the Ministerio de administraciones públicas, being in the position of an arbitrator cultivating relations between the two sides). National associations of local authorities (particularly the FEMP) willingly accept this state of affairs, at least as long as central government remains the prime decision-maker (for the fundamental aspects of the legal regime and, especially, for local finances).

85. For their part, the Autonomous Communities although having very important direct relations with the municipalities (supervision, town planning, environment) appear to place scant importance on providing scope for participation by local authorities in the decisions of the Autonomous Communities of direct concern to them.

86. For the moment, the statutes of the Comunidades Autónomas do not contain any meaningful provisions, whereas a few initiatives by Comunidades Autónomas individually are reported, such as the creation in Andalucia of the “Mesa por el pacto local” or of a “Comisión de cooperación local” in Galicia.

87. The scant attention to the issue of links between Comunidades Autónomas and local authorities appears contradictory to the regions’ extensive powers regarding the organisation of local authorities (it should be remembered that, amongst other things, regions are authorised to distribute powers via sectoral laws and regulate the forms of association and co-operation between local authorities) and to the heightened importance of devolved government, with which there will be ever more frequent opportunities for co-ordination and co-operation in the future.

88. Judging by the established pattern of separation between the tiers of government, some holding distinct powers in their own right, the future appears to foreshadow ever greater opportunities for co-ordination of government policies and action, to be framed according to procedures and in contexts that are properly regulated, precisely in order to guarantee each of the co-operating entities full decisional independence.

3. Third part: reforms in progress or planned

3.1 The Pacto local

89. As the process of consolidating the Comunidades Autónomas went ahead, with the implementing measures of the second (1992-94) “pacto autonomico”, the association of local authorities (FEMP) undertook a major political initiative in 1995 to promote a further stage of institutional reform in which strengthening of the local authorities would now be the central consideration.

90. The essential clause of the Pacto local to be agreed between central government, the governments of the Comunidades Autónomas and the political parties is the launch of a new process for transferring to local authorities “the powers which are due to them by virtue of their capacity to exercise powers as well as at the behest of the citizens”.

91. The FEMP has suggested opening negotiations in three different areas:

a) with the State authorities for transfer of powers in the matters under the State’s exclusive legislative authority;

b) also at State level for the necessary reform of the fundamental statutes regulating local government;

c) with the Comunidades Autónomas for the transfer of powers regarding the matters in the regional legislative sphere.

92. Central government has made a positive response to the FEMP initiative by setting up a debating panel with the FEMP and opening a field of political debate on the subject of the Pacto local with the major political parties, especially the main opposition party at national level, the PSOE, but without participation of the Autonomous Communities.

93. This new phase has produced a few early outcomes by way of reform in the area where it was easiest for central government and specifically the Ministry of Public Administration to make provisions, that is the area concerning changes in the basic system of local government.

94. Accordingly, in 1998 a package of legislative projects was approved, under the name “Medidas para el desarollo del Gobierno local”. Most of the bills which it contained became law in the subsequent years (1998-2000) with the support of the political parties and thus with a broad parliamentary consensus.

95. The two other areas of negotiations, concerning administrative responsibilities, are still marking time so that discussion regarding the Pacto local is completely open-ended both at central government level and in the various Comunidades Autónomas.

96. We shall look firstly at the reforms implemented and go on to record the terms of the current debate on transfer of responsibilities.

97. The first is the reform of the LRBRL carried out by law no. 11 of 1999, incorporating new provisions on the respective powers of the Alcalde and the Pleno. The Alcalde receives more weighty managerial responsibilities, while the Pleno has its function of supervising the executive’s activity reinforced. There is also a proposal from the PSOE to introduce direct elections of the mayors, but it is difficult to predict the fate of this initiative at this stage.

98. The second is the reform of the implementing law governing the Constitutional Court, carried out by organic law no. 7 of 1999 introducing the possibility of proceedings in defence of local self-government. In substance, local authorities are granted the right of direct petition to the Constitutional Court against legislative and regulatory acts which they consider prejudicial to their autonomy. The new rules nevertheless seek to limit this direct petition to avoid undue overloading of the Constitutional Court. Accordingly, the following are authorised to bring petitions:

a) the local authorities at which the law in question is exclusively directed;

b) 1/7 of the municipalities in the area affected, provided that they represent at least 1/6 of its population;

c) half the provinces in the area affected, provided that they represent at least half the population.

99. Any local authority wishing to participate in the bringing of proceedings before the Constitutional Court judge must approve this initiative with a resolution passed by an absolute majority of the members of its Pleno.

100. As can be seen, here is a very significant innovation that puts Spain in front as regards the application of the principle laid down in Article 11 of the European Charter of Local Self-Government (explicitly referred to in the introductory memorandum to the law), even though the limitations laid down may make it particularly difficult to reach a total of more than one thousand Municipios at national level. The risk, which has moreover been clearly stated, is that the time taken to collect the minimum number of endorsements of the petition (it took several months to be able to appeal against the 2001 national law on budgetary stability) in some cases reduces the force of the Constitutional Court’s ruling. For the appeal to be effective in as short a time as possible, it would be preferable for there to be a similar appeal brought by the region concerned.

101. The third development is the reform to the electoral law (LOREG), carried out by the organic law no. 8 of 1999 and concerning two points of the operation of local government bodies:

a) new rules for motions of censure, with the introduction of automatic convocation of the Pleno to guard against dilatory ploys by the Alcalde, against whom the Pleno members previously had only a judicial remedy;

b) raising the question of confidence in relation to specific projects (approval of the balance-sheet and of the staff regulations, orders on levying of taxes, development plans). This new procedure is intended to enable Ayuntamientos (and Diputaciones) to overcome the rigidity or deadlock which occurs in the adoption of decisions considered essential to further local government.

102. The fourth development is the reform, increase and improvement of local politicians’ remuneration conditions, achieved through law no. 14 of 2000.

103. The State has fulfilled part of the scheme entitled Pacto local, but little has been achieved regarding transfer of powers to local authorities.

104. This transfer depends to some extent on the State itself (in areas within its own legislative sphere) but it appears objectively harder to identify administrative responsibilities that can be localised at the level of the Municipios (bearing in mind that they are all linked to the unitary role of the state), considering the extent of the process of devolution from the State to the Comunidades Autónomas.

105. The real problem, then, is the transfer of functions in areas where the regions are empowered to legislate. Here, a basic alternative presents itself:

a) whether the process is to be entirely in the hands of the Comunidades Autónomas, or

b) whether it would be possible for the State to intervene further to facilitate the transfer by imposing more definite obligations of time and performance on the Comunidades Autónomas to actually carry out the process of transfer.

106. The second alternative, which would have entailed amending the provisions of the LRBRL on the powers of local authorities, has been ruled out. In effect, there are a number of associated legal and political difficulties.

107. From the legal point of view, the Spanish constitution makes no provision for central government to have a legislative power in determining the responsibilities of the local authorities in the fields of competence for which such legislative power resides with the Autonomous Communities (central government cannot even draw up a list of essential competences as provided for, for example, in the new Italian constitution). According to the Autonomous Communities (and particularly Catalonia) by going much further than provided for under the constitution, the 1985 LRBRL drew up a list which is by no means directly operational. It falls to the Autonomous Communities to implement the distribution of powers provided for in this national law, but they can choose not to do so.

108. Plainly the political conditions do not make for a legislative move which would restore to the central level the determination of local authorities’ powers. The end of the close relationship between the current majority party at national level and the nationalist political parties (the Partido Popular today has an absolute majority in parliament) clearly makes the Autonomous Communities opposed to any new move towards centralisation. Furthermore, strong agreement on this point between the two major parties at national level is very unlikely.

109. For the time being, the choice has been the first solution, ie implementation in each Autonomous Community of separate “pactos locales” where the respective roles of the organs of the Autonomous Communities and the representatives of the region’s local authorities are to be clearly defined.

3.2 Matching of financial resources

110. The problem of matching financial resources with the combination of responsibilities discharged has confronted the Comunidades Autónomas with greater urgency in the last few years precisely in view of the considerable transfer of responsibilities which has occurred over the last decade.

111. This is the direction taken by the reform of the implementing act on the financing of the Comunidades Autónomas (LOFCA) under the organic law no. 7 of 2001. The reform is based on the principle of joint fiscal responsibility between the State and the Comunidades Autónomas with the raising of their share in the income tax yield and the making-over of further State taxes to them. In addition, they are granted more extensive independence in laying down rules on the control of these taxes.

112. Changes to the local finance system, on which a wide-ranging debate is currently in progress, would appear to be an equally important issue but would seem a little less urgent. In particular, central government has mooted the idea of doing away with business tax, one of the five taxes directly collected by the Municipios, although for the time being they have not taken this any further. Bearing in mind the legitimate concerns of the municipalities which are keen to know what other tax could replace it to guarantee the same tax revenue, the rapporteurs call on the government to step up its consultation with the representatives of municipalities in order to find a solution which will ensure that the municipalities continue to enjoy the same level of own revenue.

113. The possible reform of the national law on local finances raises another substantive problem: the disparity between the power of national authorities to legislate on local taxes, which would seem to imply a degree of uniformity in the allocation of local competences throughout Spain, and the actual power of allocation granted to the Autonomous Communities which, in contrast, would seem to imply a differentiation from one region to another.

3.3 A revised model of territorial organisation. The case of Catalonia

114. As already pointed out, with regard to the legal regime of the local authorities, the powers of the Autonomous Communities are not restricted to the distribution of competences alone but also touch on all aspects of territorial organisation (municipal boundaries, creation and promotion of forms of association and inter-municipal co-operation, etc). The Autonomous Communities however cannot themselves modify the boundaries of the provinces.

115. This is a very significant power which in each region can give real substance to relations between the autonomous community and the local authorities. In this respect, reference can be made to the case of Catalonia, where in 2000 at the suggestion of the regional government and with the agreement of various parliamentary groups, a committee was set up to look into territorial reorganisation. The committee drafted a detailed and courageous document currently being studied by the competent committee of the Catalan parliament.

The document in question (the “Roca” report, named after its chair) contains three main proposals:

a) territorial reorganisation of small municipalities

b) greater responsibility given to the Comarcas

c) creation of a third tier of local administration, the vegueries.

116. With regard to the small municipalities, the Roca document suggests a process (prudent in terms of completion dates but fairly significant in itself) of merging the smaller municipalities (of less than 250 inhabitants). For their part, the associations of municipalities (and particularly the Associació de Municipis i Comarques de Catalunya) have voiced their clear opposition to any projected merger or obligatory grouping of municipalities. Thought has also been given to introducing policies to promote more flexible groupings of municipalities, for example by using various association and co-operation formulas.

117. The document proposes a slight increase in the number of comarcas, bearing in mind their role in supporting municipalities in the exercise of their own powers. However, this confirms the problem of the role of the Diputaciones provinciales which also have a role of assisting municipalities but do not have any attributions of their own (a problem which remains unresolved in the report). One can rightfully question the usefulness of having two structures which have almost the same responsibilities with a different mechanisms of financing. It should also be noted that the document does not address the issue of the reform of the system for electing members of the Comarcas council. This has been raised by representatives of the municipalities, particularly the larger ones, unhappy with a system which results in a pronounced imbalance between towns and villages in the representation of political forces at local level and which does little to enhance the influence of the municipalities within the comarca institutions. The report also addresses the issue of the financing of comarcas by proposing an amendment to the national law on local finances to enable the comarcas to levy their own taxes directly or allow them to have a share of national taxes.

118. The major innovation in the Roca report concerns the proposed setting up of vegueries, new territorial entities which the committee wanted to be called “regions”. This idea was abandoned as it could have led to confusion (the term “region” implies larger entities and in the Spanish context these are the Autonomous Communities). Accordingly, they opted for an old Catalan name – vegueries.

An even bigger problem continues to be the fate of the provinces whose boundaries can be changed only by a national organic act, and which serve as constituencies for elections to the Cortes and the Senado. The proposed solution is to create a single territorial entity which can carry out three functions:

1) that of the Diputación for discharging the traditional powers of support to the Municipios;

2) that of the devolved administration of central government;

3) that of the devolved administration of the Generalitat.

It has also been proposed that the public entities operating at vegueries level should retain the name of Diputaciones but that they should be increased in number from the current four to a total of six.

The debate remains open, but it might be profitable to initiate wide-ranging discussion on how the representative bodies of the current Comarcas should be formed.

3.4 Metropolitan areas and the capital

119. The question of metropolitan areas, in other words the setting up of local authorities whose size and powers might mean that they manage the affairs of wide areas taking in not only the chief municipality but many neighbouring municipalities besides, is a matter which the LRBRL leaves entirely to the discretion of the Comunidades Autónomas, authorised to “create”, modify or abolish metropolitan areas by law.

120. In Spain, this issue has arisen in three areas: Madrid, Barcelona and Valencia.

121. In the case of Madrid, a first firm response has been the creation of the single-province Comunidad Autónoma of Madrid, holding typical regional powers and significant administrative responsibilities transferred from central government.

122. The Alcalde of Madrid, during his meeting with the Congress delegation, emphatically raised the issue of a special status to be granted by national law to the Ayuntamiento of Madrid in order to deal appropriately with all the problems affecting it as State capital: financial problems (compensation for the additional costs borne by the municipality for accommodating the capital; problems regarding closer co-ordination between the State, the Comunidad Autónoma and the Ayuntamiento in determining and implementing measures of national rather than local relevance.

123. In the case of Barcelona and Valencia, on the other hand, the Comunidades Autónomas have not looked kindly on the presence within their boundaries of a local authority which is very powerful because of its responsibility for the heartland and economic core of the entire region. For that reason, the metropolitan authorities have been suppressed and supplanted by numerous forms of association between the Ayuntamientos in the area.

124. In Catalonia, as part of the process of territorial reorganisation, there are proposals to confer upon the vegueria (Diputación) of Barcelona powers which are typically metropolitan in nature. In such a move, there would be no room in the vegueria for the comarcas (the current level for discharging the functions of support to the Municipios).

125. In Barcelona, it should be pointed out that there is also a Carta municipal, a legal text drafted by a committee of the municipal council with the participation of all the political parties. This text, unanimously approved by the Pleno of the Ayuntamiento on 16 July 1997, sets out the special legal regime of the Barcelona Ayuntamiento, which has to be confirmed either by Catalan legislation (this was done by the Catalan parliament: Law no. 22/1998 of 30 December) or by a national law (for all aspects requiring a change to national legislation on the ordinary regime applicable to local authorities. This law is currently being debated in the Spanish parliament). The differences in the regime applying to the city concern:

a) the names of certain of the bodies (for example, the Pleno is called the Consejo Municipal);

b) attributions in key sectors with special powers and, in particular, the right for the city to participate in consortia and specialised agencies;

c) a special staff regime which does not include the presence of civil servants qualified at national level in by far the most important area of fiscalización, ie review of the legality of financial and accounting acts;

d) a special regime for the city’s finances.

3.5 Reform of the Senate

126. The issue of reform to the Senate resurfaces periodically but does not manage to find a genuine place of its own in Spain’s political agenda. The Senate, which the Constitution describes as “the House of territorial representation” (Article 69 of the Constitution) is currently composed of senators elected by universal suffrage in each province (four per province with some slight differences for the Balearic Islands, the Canary Islands and Ceuta and Melilla). The Autonomous Communities may appoint one senator plus an additional one for every million inhabitants on the respective territory. This mixed composition of the upper house – with the majority of senators not being real representatives of their territories and a minority of representatives of regions – makes the Spanish Senate an assembly closer to the French Sénat rather than the German Bundesrat.

127. The partial changes already made (formation of a special committee on the Comunidades Autónomas) have proved somewhat insufficient to create a context for effective participation by the Comunidades Autónomas in the process of taking the decisions of greatest importance to them at a legislative as well as administrative level.

128. Whatever the type of reform proposed, it will obviously entail an amendment to the Constitution to which particular resistance has already been expressed, especially at national level (and in particularly in the Partido Popular, the majority party); this is justified by fear of meddling with a relatively recent instrument which has achieved a great deal in terms of consolidating democracy.

129. At regional level, the people in Catalonia with whom we spoke expressed a degree of interest in the matter, but only insofar as it would lead to a new and more far-reaching revision of the Constitution to reflect the major changes that have taken place in Spain. Impetus could come from reform in the European Union. The current thinking is to have direct representatives of the Autonomous Communities elected by regional parliaments and not appointed by governments, as is the case in Germany.

4. Fourth part: concluding remarks and tentative proposals

4.1 Regional self-government: an as yet incomplete reform

130. As regards regional democracy, the picture in Spain is a particularly rich and well structured one.

131. The creation of the Comunidades Autónomas has strongly marked the entire institutional structure of Spain, which has been able to institute and consolidate a thoroughly democratic system, while at the same time preserving local features of cultural and political diversity and ensuring the necessary unity of the State (even in the face of independence-seeking agitation which has assumed the traits of terrorist violence, which the rapporteurs strongly and unreservedly condemn).

132. Now that the transfer of powers and resources to the Comunidades Autónomas has been largely brought forward3, there is the problem of finding a more balanced system for the new devolutionary State, taking account of the considerable weight now acquired by the regional tier of government. The Autonomous Communities (and Catalonia in particular) point out that many things have been done at administrative level in connection with the transfer of powers but that at legislative and, generally speaking, political level there is still a long way to go.

133. The key questions raised concern:

a) the status of national legislation which, according to the regions, by using all the available instruments for supervising national interests has far exceeded the constitutional provisions guaranteeing the Autonomous Communities clearly defined areas of legislation;

b) enhanced presence of the Autonomous Communities at national level in the bodies responsible for taking decisions on matters which are of direct concern to the regions and which have a bearing on the legislative or administrative activity of regions.

134. With regard to the first point, it is a question of applying the Constitution more openly by involving the bodies of the Autonomous Communities in the taking of decisions of concern to the regions (a sort of self-restraint by the state in the use of the instruments guaranteeing the unity of national interests). Unity of the country is different from uniformity of organisational solutions.

135. With regard to the second point, there needs to be far-reaching change to the regulation of links and consultation between central government and the Autonomous Communities, which seem to be insufficient.

136. At legislative level, in order to adapt the Spanish legal order to the solutions adopted in the matter by federal States (although Spain is not a federal state, it has a regional self-government regime that is definitely one of the most advanced in Europe), the best avenue seems to be that of instituting a second Chamber of Comunidades Autónomas, with the radical reform of the Senado that it necessitates, through amendment of the Constitution.

137. Yet action in the legislative sphere alone cannot be deemed sufficient. In addition, new solutions would have to be found regarding the involvement of the Comunidades Autónomas in framing all State policies that may affect their development and functioning (along the lines of the Standing Conferences in which national and regional executives are represented.)

4.2 Local self-government: implementation of the Pacto local at regional level

137. As regards local democracy, the basic regulatory framework for the local government bodies, and the genuine democratic activity carried on within them, make Spain a model of correct and complete application of the principles set out in the European Charter of Local Self-Government, there being still more innovative and advanced solutions in some cases. Nonetheless, there is a limited but significant number of aspects concerning the legal order of local authorities which would merit further thought:

a) an excessive tendency to using delegated powers as opposed to assigned powers; this diminishes the effect of the suppression of controls of the acts of local authorities;

b) the dispersion of the powers of local authorities (in national or regional laws) which would appear to be at odds with the principle of full and exclusive powers contained in the Charter;

c) the effective limitation of regulatory autonomy at technical level, a result of a large number of detailed legislative texts at both national and regional level, and a large number of reservations in legislation on aspects which could be left to local regulation (forced execution, sanctions, etc);

d) the shortcomings in the legislative provisions enabling local elected representatives to return more easily to their occupational activities at the expiry of their term of office.

138. The sore point is effective compliance with the principle of subsidiarity which appears to demand a radical improvement in the allocation to Municipios and Provincias of administrative responsibilities still concentrated at the level of the Comunidades Autónomas. On a formal level, it could be recommended that this principle be explicitly introduced into the statutes of all the Autonomous Communities. Substantively, this would make it possible to evaluate the processes initiated in recent years.

139. The Pacto local issued in 1996 by the FEMP has produced some initial significant results by way of consolidating the democratic activity of the local authorities, but is finding it hard to do the same in respect of responsibilities. In this regard, it seems to operate more at a political than a strictly legal-institutional level.

140. The Pacto local is actually still open-ended. Latterly it has assumed the guise of a general proposal for a political agreement put by the government and the majority party (the PP) to all Spanish political parties, but apparently to the PSOE in particular. The reasoning behind the proposal is that if the two main parties agree on a general scheme for enhancement of local self-government, even assuming that it is to be achieved at the expense of the Comunidades Autónomas, the agreement will be readily applicable at the level of the individual regions, virtually all governed by one of these two parties. The nationalist parties, for their part, either choose not to react or display more overt opposition to an agreement that could have a levelling effect in terms of territorial organisation.

141. Looked at from a more “regionalist” point of view (the rapporteurs confirmed the position of the Generalitat of Catalonia and representatives of local authorities in that region), there is a strong impression that the Pacto local has acted as a catalyst in terms of processes and openness, but that it needs to be implemented effectively at the level of each Autonomous Community. This is the crux of the problem. The Autonomous Communities could be persuaded to transfer more powers and responsibilities to the local authorities if in parallel their role as guarantor of the legal and financial regimes of local authorities were strengthened; if, in other words, such a regime were to be put on a more openly regional footing.

142. If the process manages to make an effective and independent start, with the adoption of all its proposed measures at both national and autonomous community level for effective devolution of powers to local authorities, appropriate solutions will have to be found for all the problems that traditionally arise subsequent to a transfer of powers:

- the necessary transfer of human and financial resources to the local authorities;

- setting in motion more effective linking mechanisms between Comunidades Autónomas and local authorities;

- in the longer term, it is possible that the establishment of closer relations between regions and local authorities could lead to more regionalism in the apportionment of powers relating to the organisation of local government (in respect of finance for example), with due regard to the general principles securing local autonomy which are laid down by national law.

APPENDIX 1

Visit to Madrid and Leganés (31 January – 2 February 2002)

List of persons met

Ministry of Public Administration

Mr Gabriel Elorriaga Pisarik, State Secretary for Territorial Organisation of the State

Mr Luis Pérez de Cossío, Director General of Local Administration

Ms Isabel Benzo Sáiz, Director General of Territorial Policy

Mr Luis Velasco, Deputy Director General of Co-operation and the Legal Regime of Local Authorities

Mr Pedro Ibanes Buil, Deputy Director General of Co-operation and the Legal Regime of Local Authorities

Mr D. Ricardo López de Haro Wood, Head of International Relations

Mr José Manuel Rodríguez Álvarez, Assistant Deputy Director General of Co-operation and the Legal Regime of Local Authorities

Mr Vicente Moret Millas, Adviser to the State Secretary

Federation of the Municipalities and Provinces of Spain (FEMP)

Mr Pedro Castro, Vice-President, Mayor of Getafe

Mr Fernando Giner Giner, Chair of the International Relations Committee, President of the Valencia Provincial County

Mr Gonzalo Brun, Director of Legal Affairs

Representatives of the People’s Party (PP)

Ms Rosa Romero, Secretary responsible for municipal policy

Mr Francisco Diaz Latorre, Deputy Secretary responsible for municipal policy

PSOE representatives

Mr Alvaro Cuesta Martínez, Federal Secretary responsible for municipal policy, member of parliament

Mr Antonio Luis Hernández Hernández, Regional Director responsible for municipal policy

Madrid City Council

Mr José María Álvarez del Manzano y López del Hierro, Mayor of Madrid

Mr Manuel López-Fuchet, Director of International Relations

Leganés Municipal Council

José Luis Pérez Ráez, Mayor of Leganés, President of the Federation of the Municipalities of the Madrid Region

National Institute of Public Administration

Mr Jaime Rodriguez-Arana Muñoz, Director

Mr Francesco Borras, Director of the Centre for Local and Regional Government Studies

Ms Angeles Vázquez, Adviser on local institutions

Mr Fernando Cerón, Deputy Director of the Institutional Co-operation Unit

Ms Pilar Garcés, Adviser to the Institutional Co-operation Unit

Independent experts

Mr Ángel Manuel Moreno Molina, Professor of Administrative Law, University Carlos III, Madrid, member of the Group of Independent Experts on the European Charter of Local Self-Government

Appendix 2

Visit to Barcelona and Lleida (22-24 May 2002)

List of persons met

Parliament of Catalonia

Mr Joan Rigol i Roig, President

Ms Eugènia Cuanca i Valera, Chair of the Local and Regional Government Committee, Convergencia i Unio

Ms Montserrat Tura i Camafreita, Vice-Chair of the Local and Regional Government Committee, Socialist-Greens Coalition

Mr Josep M. Fabregat i Vidal, Chair of the Territorial Policy and Environment Committee, People’s Party

Dr Ismael Pitarch, Legal Adviser

Government of Catalonia

Administration and Institutional Relations Department

Mr Josep Maria Pelegri i Aixut, Director General of Local Authorities

Mr Joan A. Olivares i Obis, Deputy Director General of Local Authorities

Mr Josep Martinez Melgares, Deputy Director General for Legal Assistance and the Regime of Local Authorities

President’s Department

Mr Joaquim Llimona i Balcells, Secretary General for International Affairs

Barcelona Provincial Council

Mr Manuel Royes i Vila, President

Mr Agusti Fernandez de Losada i Passols, Head of the European Integration and Solidarity Department

Barcelona City Council

Mr Joan Clos i Matheu, Mayor of Barcelona, Member of the Committee of the Regions

Mr Ernest Maragall i Mira, Executive Chair of the Committee on the Presidency and Economic Activities

Ms Margarita Obiols, Director of International Relations

Ms Antonia Sabartes, International and European Affairs Office

Catalan Association of Municipalities and Districts (ACM)

Mr Josep Pont i Sans, President of the Lleida Provincial Council

Mr Josep Maria Matas i Babon, Secretary General

Mr Rafael M. de Yzaguirre i Paboletta, Deputy Secretary General

Mr Josep Ramon Fuentes i Gaso, Professor of Administrative Law, Rovira i Virgili University

Ms Anna Morell, Economic Affairs Office

Federation of Catalan Municipalities (FMC)

Mr Manuel Mas i Estela, Mayor of Mataró, President

Mr Ernest Maragall i Mira, Executive Chair of the Committee on the Presidency and Economic Activities

Ms Pilar Figueras de Diego, Secretary General

Mr Josep Mir i Bago, Professor of Administrative Law, Pompeu Fabra University

Ms Christina Pellisé, European Affairs Office

Institute of Self-Government Studies of the Government of Catalonia (Institut d'Estudis Autonomics)

Mr Antoni Bayona i Rocamora, Director of the Institute of Self-Government Studies

Ms Roser Revilla Aret, Head of the Research Office

Experts

Mr Tomas Font i Llovet, Professor of Administrative Law, Public Law Institute, member of the Group of Independent Experts on the European Charter of Local Self-Government

Mr Oriol Nel·lo i Colom, former Director of the Institute of Town Planning, member of the Catalan Parliament

Lleida Provincial Council

Mr Josep Pont i Sans, President

Lleida City Council

Mr Antoni Siurana i Zaragosa, Mayor, Vice-President of the FEMP, member of the CLRAE, former President of the Standing Conference on Local and Regional Authorities of Europe

Mr Antoni Novell, Advisor to the Mayor of Lleida

1 It should be noted that when deposing the instrument of ratification of the European Charter of Local Self-government Spain declared that it did not consider itself bound by Article 3.2 of the Charter to the extent that the system of direct suffrage foreseen therein should be implemented in all local authorities falling within the scope of the Charter.

2 Article 145 of the Constitution explicitly forbids any form of federation between the Autonomous Communities.

3 Some regions such as Basque Country for instance however reckon that this process should be brought forward further and that a number of other responsibilities should still be transferred from the State to the regions depending on the their status.



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