Strasbourg, 25 April 2002
CG/INST (8) 55 rev / 2002
Information Report on Local and Regional Democracy in Romania
Rapporteurs: Mr Jean-Claude FRECON (France, L) and Mr Lambert VAN NISTELROOIJ (Netherlands, R)
1. After being passed by parliament1, a new law on local public administration
(No. 215/2001), was promulgated by the President of the Republic of Romania2 on 21 April 2001. Thirty days later, when the new law entered into force, the law on local public administration (No. 69/1991) as amended in April 1996 was repealed along with its subsequent amendments and all other contrary provisions.
2. The passing and entry into force of this law did not escape the notice of the CLRAE’s Institutional Committee which, following a preliminary discussion at its 4th meeting (Strasbourg, 27 April 2001), decided at its 5th meeting on
30 May 2001 to look at the text in greater detail.
3. The reasons for the Committee’s interest in this new law can also be ascribed to its desire to verify the implementation of Recommendation 12 on local democracy in Romania, adopted by the Congress in 19953.
4. In view of the above, and following consultation of the Romanian delegation to the CLRAE, the Institutional Committee decided to draft this present Information report, asking the Rapporteurs to carry out an official visit to the country to meet the authorities concerned. This decision was confirmed by the Bureau of the Congress at its meeting on 31 May 2001.
5. The first official visit was made to Bucharest and Piteşti from 3 to 5 October 2001. The CLRAE delegation comprised:
Mr Alain Chénard (France, L), former President of the Congress and former Chair of the delegation which drafted Recommendation No. 12 (1995);
Mr Lambert Van Nisterlooij (Netherlands), Rapporteur on regional democracy in Romania (assisted by Mr Paul Diemel);
Mr Giorgio De Sabbata (Italy), Expert, former Rapporteur on Recommendation
No. 12 (1995);
Mr Riccardo Priore, head of the Institutional Committee Secretariat;
Mr Stefan Chisca, of the Congress Secretariat Communication Unit.
Mr Frécon (France L), Rapporteur on local democracy in Romania was unable to be part of the delegation because of commitments resulting from his recent election to the French Senate.
6. Following the first visit, the Secretariat drew up a preliminary draft report under the responsibility of Mr Chénard following consultation with Mr De Sabbata. This document was examined by the Congress’s Institutional Committee on 7 November 2001.
On the basis of this text, the Committee instructed the Rapporteurs to gather additional information on the following questions:
- local authorities’ financial resources
- political “migration” by mayors
- the situation regarding local democracy in Bucharest
- the regionalisation process.
7. The Committee asked the Rapporteurs to prepare a revised version of the report, to include the above information, for approval in spring 2002.
Accordingly, the Rapporteurs were asked to visit Bucharest again.
The second visit took place on 18 and 19 February 2002. On this occasion, the delegation was composed of MM. Frécon, Van Nistelrooij, De Sabbata, Priore and Chisca.
8. The programme for the visits is set out in Appendix I. The programme was drawn up by the Congress Secretariat in co-operation with the Romanian Ministry of Public Administration. The Congress delegation was warmly received by the Romanian authorities. The rapporteurs would like to express their gratitude to the Ministry of Public Administration for its willingness to provide information, the warm welcome at official visits and for the excellent organisation of these visits.
9. The final version of the report has been prepared with the assistance of Mr Giorgio De Sabbata, in his capacity as expert. Professor Dr. Corneliu-Liviu Popescu4, the Bucharest Institute of Public Policy and the Pro-Democratia Association, also contributed to preparation of the report by providing technical information on the various topics under consideration.
The rapporteurs would like to thank these individuals and organisations for their help and willingness to co-operate during the visits to Bucharest.
10. This text was submitted by the rapporteurs to the Institutional Committee at its 8th meeting (Strasbourg, 16 April 2002) for approval.
II. LOCAL SELF-GOVERNMENT IN ROMANIA: SUBSTANTIAL PROGRESS AND SOME ANOMALIES
11. During the meetings, and particularly at the meeting with Mr Octav Cozmanca, Minister for Public Administration, the CLRAE representatives were made aware of the commitment of the Romanian authorities to base the current administrative reform process on the European Charter of Local Self-Government (ratified by Romania in 1997) and CLRAE Recommendation No. 12.
To this end during the first visit, the Minister for Public Administration provided the Congress representatives with an official document summarising the measures adopted to implement this major Congress recommendation5 (see Appendix II, text available in French only).
12. The progress made by the Romanian authorities in the field of local public administration is demonstrated by the following:
a) Thorough revision of the local government legislative framework. As mentioned in the introduction to this report, the delegation noted with satisfaction that legislation in this field had been enhanced by the passing of:
- the law on local public administration (No. 215/2001), replacing law no. 69/1991, as amended in 1996,
- a law on local public services (No. 326/2001),
- a law on town and country planning (No. 350/2001).
This new legislative framework also includes the law on local public finances No. 189/1998 – completed by Governmental order No. 36/2002 regarding income and local taxes, published in Molitorul Oficial al Romaniei, 1st Part, No. 92 of 2 February 2002
and the law on the public service No. 188/1999 (which also covers local government staff).
b) A strengthened institutional dialogue between the central authorities and representatives of local authorities. This dialogue has for a number of months now been based on an ongoing partnership between the ministries concerned and the new Federation of Romanian Local Authorities. Set up in summer 2001, the Federation comprises the four main associations of local authorities in Romania: the Association of Villages, the Association of Towns, the Association of Municipalities and the National Union of County (Judeţ) Councils.
The president of the Federation is Mr Emil Calota who, during the meetings with the CLRAE delegation, described his relations with the authorities in a positive light.
It should also be pointed out that the preliminary meeting on 3 October 2001 with the members of the Romanian delegation to the CLRAE was also attended by the State-Secretaries in the Ministry of Public Administration responsible for local self-government and European integration respectively. Although this had not been included in the programme, the presence of these senior ministry officials did not appear to embarrass the Federation representatives (all of whom were members of the government coalition parties with some exceptions).
Although the CLRAE publicly expressed its satisfaction at the open and relaxed atmosphere at the preliminary meeting, it was nevertheless somewhat surprised at the presence of the state-secretaries. In this connection, it should be noted that the apparent good relations between the government and the Federation was also evaluated in the light of the facts and information described further below in the report.
c) Introduction of training programmes for public service (including local government) staff, with the setting up of an administration college based on the French model.
13. The positive impression gained by the CLRAE representatives in respect of the points mentioned above was undermined by a number of areas of concern it noted in the legal and practical fields. These areas of concern are described in the following chapters (IV,V,VI and VII).
III. ORGANISATION OF LOCAL DEMOCRACY IN ROMANIA: ESSENTIAL DATA
14. The basis legislative framework for local administrative organisation, local self-government and local democracy, in communes, towns, municipalities and the boroughs of the municipality of Bucharest6, is composed of:
- the Romanian Constitution of 8 December 1991, published in Monitorul Oficial al României, 1st part, n°233 of 21 November 1991;
- Law n°215/2001 on local public administration, published in Monitorul Oficial al României, 1st part, n°204 of 23 April 2001, and subsequent amendments;
- Law n°70/1991 on local elections, republished in the Monitorul Oficial al României, 1st part, n°79 of 18 April 1996, and subsequent amendments;
- Law n°2/1968 on administrative organisation of the Romanian territory, republished in the Buletinul Oficial, 1st part, n°54-55 of 27 July 1981, and subsequent amendments;
- Law n°351/2001 on approval of the spatial planning programme for the national territory, 4th section – network of settlements, published in Monitorul Oficial al României, 1st part, n°408 of 24 July 2001;
- Law n°3/2000 on holding and organising referendums, published in Monitorul Oficial al României, 1st Part, n°84 of 24 February 2000;
- Law n°24/2000 on the legislative rules for drawing up standard-setting acts, published in Monitorul Oficial al României, 1st part, n°139 of 31 March 2000;
- Law n°189/1998 on local public finance, published in Monitorul Oficial al României, 1st Part, n°404 of 22 October 1998, and subsequent amendments;
- Governmental order No. 36/2002 regarding income and local taxes, published in Molitorul Oficial al Romaniei, 1st Part, No. 92 of 2 February 2002;
- Law n°213/1998 on public property and the legal regime governing it, published in Monitorul Oficial al României, 1st part, n°448 of 24 November 1998, and subsequent amendments;
- Law n°219/1998 on the system of concessions, published in Monitorul Oficial al României, 1st part, n°459 of 30 November 1998;
- Law n°350/2001 on urban and spatial planning, published in Monitorul Oficial al României, 1st part, n°373 of 10 July 2001;
- Law n°326/2001 on local public services, published in Monitorul Oficial al României, 1st part, n°359 of 4 July 2001;
- Law n°151/1998 on regional development in Romania, published in Monitorul Oficial al României, 1st part, n°265 of 16 July 1998, and subsequent amendments;
- Law n°188/1999 on the status of civil servants, published in Monitorul Oficial al României, 1st part, n°600 of 8 December 1999, and subsequent amendments;
- Law n°35/1997 on the organisation and functioning of the institution of People’s Advocate, published in Monitorul Oficial al României, 1st part, n°48 of 20 March 1997.
15. In June 2001, the Senate adopted a draft law on the status of local elected representatives, which is currently on the Chamber of Deputies’ legislative schedule. This draft law provides for the setting up of disciplinary boards within each county (and in the municipality of Bucharest), as disciplinary bodies for mayors, chaired by a judge from the administrative litigation division of the regional court: its composition and rules of procedure will be governed by Government decree and its decisions may be challenged in court. This text has already been criticised in constitutional terms.
16. Romania has three levels of public administration, the central state administration and two infra-national levels of public administration: state territorial administration (devolution to the state administrative constituencies) and self-governing local public administration (decentralisation to local territorial authorities).
There are two types of (infra-state) local territorial authorities, described as administrative-territorial units. The basic administrative level is represented by communes (communa), which are rural authorities, and towns (ora), which are urban authorities; the largest towns are called municipalities (municipiu). The intermediary administrative level is composed of counties (judet). Communes, towns and municipalities include one or several settlements (localitate), and rural settlements are known as villages (sat). Municipalities may be divided into administrative and territorial sub-divisions; to date, only the municipality of Bucharest, the state capital, is divided into boroughs (sector). Neither settlements nor boroughs are local territorial authorities.
17. The communes and villages (municipalities) and the counties are both state administrative-territorial units (the territorial framework for devolved state territorial administration) and self-governing local territorial authorities. The presence of two tiers of infra-national public administration, the existence of local territorial authorities (communes, towns, municipalities, counties) and their administrative-territorial sub-divisions (for certain municipalities) and the special status of local self-government and the elected nature of local administrative bodies are constitutional principles.
18. Romania is currently composed of 41 counties and the municipality of Bucharest (a local territorial authority that has the status of a municipality but which resembles a county in terms of powers), as well as 3000 basic local territorial authorities, including 265 towns (93 municipalities, including the municipality of Bucharest, and 172 towns) and about 2700 communes.
19. First-tier local democracy (including the municipality of Bucharest) is based on representation. Management of local public interests is the responsibility of self-governing and deliberative local administrative authorities (the local council or the general council of the municipality of Bucharest) and executives (mayors or the general mayor of the city of Bucharest). Local councils and mayors are elected by universal, equal, direct, secret and freely-expressed ballot. Deputy mayor(s) is (are) elected by local councils. Citizens do not play a direct role in managing local affairs via assemblies or citizens’ committees.
20. Local democracy at county level is also founded on representation. Management of local public interests is the responsibility of deliberative and self-governing local administrative authorities (county councils) and executives (chairs of county councils). County councils are elected in universal, equal, direct, secret and freely-expressed ballots. Chairs and deputy chairs of county councils are elected by county councils. Citizens do not play a direct role in managing local affairs via assemblies or citizens’ committees.
21. Local councils are elected in universal, equal, direct, secret and freely-expressed ballots, under a proportional system and in a single round, with an electoral threshold of 5%. A local council’s term of office is four years. The same principles apply to the election and term of office of local councils, county councils, the Chamber of Deputies and the Senate (except for the electoral threshold, which is higher than 5% for coalitions of parties participating in parliamentary elections).
22. Mayors are elected by universal, equal, direct, secret and freely-expressed ballot, under a majority (first-past-the-post) system, in a two-round uninominal ballot. Mayors’ terms of office are four years. The same principles apply to the election and term of office of mayors and the President of Romania.
23. Changes in turnout rates at local elections since the fall of the communist regime, compared with turnout rates at national elections:
- 1990: only national elections, in May (Chamber of Deputies, Senate and Presidential election). No local elections;
- 1992: local elections in February (only local councils and mayors were elected directly; county councils were elected indirectly); no results on turnout rates in local elections published in the Monitorul Oficial al României. National elections in September and October (Chamber of Deputies, Senate and Presidential elections);
- 1996: local elections in June (local councils, mayors and county councils): turnout rate in elections for local councils, county councils and the first round in mayoral elections – 56.47%; turnout rate in new elections local council elections (two weeks later) – 46.17%; turnout rate in new or second round mayoral elections (two weeks later) - 53.06%; turnout rate for new county council elections (two weeks later) – 45.62%. National elections in November (Chamber of Deputies, Senate and Presidential election): turnout rate foe elections to the Chamber of Deputies, Senate and first round of presidential election – 76.01%; turnout rate for second round of presidential election – 75.90%;
- 2000: local elections in June (local councils, mayors and county councils): turnout rate for elections to local councils, county councils and the first round of mayoral elections – 50.85%; turnout rate at new elections or second round of mayoral elections (two weeks later) – 46.93%. National elections in November and December (Chamber of Deputies, Senate, presidential election): turnout rate for elections to the Chamber of Deputies, Senate and presidential election – 65.3%; turnout rate in second round of presidential election – 57.5%.
24. Conclusion regarding the turnout rate in local elections (1996 and 2000):
- the turnout rate at local elections is lower than in national elections held in the same year, both in 1996 and 2000;
- the turnout rate in local elections fell in 2000 compared to 1996; this fall in turnout rates in also seen in national elections;
- turnout rates for second rounds of mayoral elections were lower than for first rounds, both in 1996 and 2000.
IV. LOCAL AUTHORITIES’ FINANCIAL RESOURCES AND THEIR RELATIONSHIP TO POWERS
25. The legal framework related to local authorities’ financial resources, consists of the following legal documents:
The Law on Local Public Administration (215/2001);
The Law on Local Finances (189/1998);
Governmental order No. 36/2002 regarding income and local taxes, published in Molitorul Oficial al Romaniei, 1st Part, No. 92 of 2 February 2002;
The Annual State Budget Laws.
Other important provisions in this field are contained in some governmental decisions and orders.
26. The main principles related to local authorities’ financial autonomy are established by the Law on public administration.
It is worth noting that Article 7.3 of this law establishes that “central authorities can not establish or impose any kind of responsibilities on local (…) authorities in the process of decentralisation of certain public services or of creating new public services without ensuring the adequate financial means for achieving the respective responsibilities”. Article 9 of the same Law set forth that “Within the national economic policy, the communes, towns and counties have the right to own resources (…)” and that “these resources must be proportional with the responsibilities stipulated by law”.
These principles are in line with the provision of Article 9 of the European Charter of Local Self-Government. However, it should be stressed that, in practice, the concrete implementation of these principles does not appear satisfactory (see after).
27. The Law on Local Finances refers to the sources of local finances (public transfers – shared taxes, grants and subsidies – local property, local taxes, fees and borrowing). It also refers to the formation, approval and implementation of local budgets (revenues and expenditures) and the financing of public institutions and services. The Government informed the Rapporteurs that it recently tabled a draft law aimed at enhancing the right of local authorities to establish local taxes and charges.
28. In this respect, it is appropriate to note that the fiscal autonomy enjoyed by Romanian municipalities does not yet match the substantial powers recently attributed to them by legislation.
This is particularly true for small local authorities (the majority): although they theoretically have an increasing number of opportunities to raise revenue, in reality their tax base is not sufficiently large to benefit from them.
Consequently, these local authorities continue to depend heavily on general appropriations and specific state subsidies.
29. As already indicated, first and second-tier Romanian local authorities’ own revenue comes, for the most part, from fiscal receipts – local taxes and charges.
In some of these local authorities (the richest), the percentage of own revenue has increased in recent years; this increase is mainly due to legislative changes which have allowed for the decentralisation of several revenue sources.
In 1995, own revenue represented 28% of local budgetary revenue at national level. After falling in 1996 and 1997 (to 22.61% and 18.95% respectively), this proportion rose again in 1998 (24.73%) following enactment of the new law on local finances. The impact of this new legislation was clearly observable in 1995, since the proportion of own revenue rose to 44.58%. This figure fell in 2000 (36.28%).
30. It follows that the changes introduced by the new legislation have affected the system of local taxation, which, in theory at least, has improved.
Whilst it is true that in the years immediately following adoption of the law on local taxes and charges (1994), there were relatively few such taxes and they were not particularly high, it appears from information we have received that the situation improved in 2001. Accordingly, local authorities in a favourable financial state have in recent years begun to make use of their right to raise and gather fiscal receipts.
However, it is appropriate to note that, in practice, very few Romanian local authorities have been able to take advantage of this right.
Thus, bearing in mind the country’s difficult economic situation, the rapporteurs wish to observe that the fact of strengthening local authorities’ rights as regards taxation must not be used by the central authorities as justification for reducing state transfers.
Indeed, although the percentages cited above in paragraph 29 regarding the level of local authorities’ own revenue (local taxes and charges), are relatively high, the actual amountd are generally fairly small, and in most cases insufficient for implementing the responsibilities assigned.
31. In this respect, it should be noted that the situation has been affected by a decentralisation process, set up on the basis of the new law on local public administration, the law on public services (see above) and governmental decrees.
In this context, responsibility for a large number of public services has been transferred to local authorities, without either the necessary financial resources or the essential preparatory work.
32. Further to the lack of adequate financial resources to carry out their new responsibilities, other shortcomings seriously hampered the decentralisation process, i.e.:
the lack of a national strategy fixing the overall decentralisation priorities;
the lack of co-ordination in the implementation of the relevant laws;
the lack of a consultation and communication programmes at local level,
the discrepancy between the political ambitions of central authorities and the reality at local level;
the unclear and not totally transparent systems related to the distribution of the available central funds;
the delays in the distribution of the above-mentioned funds;
the lack of monitoring procedures,
the lack of training for the personnel concerned at local level.
The consequence of these shortcomings was that local authorities were not able to take care in an appropriate manner of transferred services. In this respect, it is significant to observe that during 2001 some city councils took the decision to reduce their personnel in order to meet the budgetary constrains.
33. In order to avoid this kind of problems, in the future, before transferring or creating new services to local authorities, central authorities should indicate the source of finances to be used within a coherent strategy of decentralisation. Responsibilities and objectives should be clearly fixed.
Previous evaluation should be made in order to find out the optimum number of services to decentralise together with the necessary financial resources.
A periodical monitoring of the process should be made until local authorities prove that it is no longer necessary.
Training programs should be organised for the local administrations involved in the implementation of the decentralisation process.
34. The level of State transfers is quite high in Romania. As already noted, the majority of Romanian local authorities depend on these funds for their current expenditure.
The law on public financing stipulates two main categories of State transfers: shared taxes and grants (earmarked and not earmarked). Most of the funds allocated to local authorities come from the first category.
Central taxes and charges are collected by the Ministry of Finance through the county financial directions and they are distributed to the different levels of government concerned. The funds allocated to local authorities mostly come from the income taxes and fees.
35. In 2001 the income taxes and fees were distributed as follows:
25% of income taxes were allocated to the county budget and 75% to councils (through the county councils). The law stipulates that local authorities that do not have sufficient own revenues are to be favoured in this distribution;
36,5% of income fees was allocated to local budgets, 10% to county council budgets and 15% made available to county councils for the equalisation of local budgets. (For Bucharest the percentages were different);
Other funds were established for subsidising thermal energy provided by local authorities for the population. These funds were distributed to local councils by county councils using the criteria stipulated for other funds.
As from 1999, another type of shared tax was created: the tax on wage. Out of this tax, 50% is kept within the State budget, 40% is allocated to local councils and 10% is given to the county councils. For Bucharest the percentage transferred to the local budget is 50%.
36. In general, the funds coming from income taxes/fees and the wage taxes are not earmarked. In theory, the criteria used for the equalisation funds are based on the financial capacity of every county, mathematically calculated. In the case of the redistribution of funds to local councils made by county councils, besides the financial capacity, the law stipulates other criteria. These criteria refer to the territorial extension, the number of persons included in social assistance institutions, the number of students in primary and secondary schools.
37. However, it seems that, in practice, these formal references are not very much used and that the criteria for the redistribution of funds to local councils are mostly of a political nature. One of the justifications of this practice is that these references are too general and/or complicated and that they do not include all the necessary data in order to make an updated and realistic evaluation of the different needs.
The Rapporteurs were informed that the above-mentioned redistribution is more the result of a negotiation process, which cannot be dissociated from political influences. In this respect, the majority of criticisms heard were related to the absence of clear and precise rules, which leaves place for subjectivism, both economical and political. This subjectivism also concerns the distribution of the special funds (see after).
38. Further to the setting up of simple, objective and specific rules, the setting up of a legally based system of inter-institutional co-operation could also help to reduce, on the one hand, the suspicions related to the existence of preferential relationships between county councils’ presidents and mayors having the same political affiliation and, on the other hand, the accusations addressed by the Ministry of finances to certain mayors to put forward financial requests which are totally unrealistic. In this framework, the authorities concerned - local or central - should try to have a more constructive attitude. The increasing of the number of consultation meetings with a regular character and the organisation of training seminars could represent an answer to the problems encountered.
39. Other (shared) funds allocated to local authorities come from the VAT (value added tax). These funds are often earmarked. In 2001, this revenue covered a number of the expenses for new decentralised services, like primary and secondary education, nurseries and centres for agricultural consultancy.
Subventions are funds directly allocated from central level to local authorities and normally they have a specific destination. Local authorities do not have legal means to control their level or the way they are going to be spent. The funds are distributed by different ministries, depending on their specific destination.
40. Special funds also represent earmarked revenues to local budgets and they are directly managed by ministries. In 2001 the special funds were: The Fund for Health Social Insurance, The Special Fund for Developing Energetic System, The Special Fund for Public Roads and The Special Funds for Beneficiaries of Insurance.
The distribution of some special funds is stipulated in the law on state budget. For other special funds, ministries that manage them have the freedom to decide the criteria of their allocation. One example in this sense is the Special Fund for Public Roads, managed by Ministry for Transportation.
41. An additional source for increasing local revenues is linked to public borrowing.
The law on local public finance allows local authorities to increase their revenues through internal or foreign borrowing. The funds coming from public borrowing may be used either for local public investments or for financing public debt.
Local authorities can use two main instruments for borrowing. The first one is issuing shares on the financial markets. This can be done either by local authorities or by specialised agencies or institutions. The second instrument refers to borrowing from commercial banks or other credit institutions.
42. Although the actual legal framework allows public borrowing, local authorities do not use this possibility very often, mainly due to the special conditions stipulated by law. The most important obstacle is that all financial operations related to borrowing are made through the Treasury. This procedure apparently creates disadvantages for the banks that gives credit.
Another obstacle is that, because there is still not a clear legal distinction between public and private propriety of local authorities, there is no real possibility to offer guarantees. Other explanations concerning the weak use of public borrowing by local authorities are related to local authorities’ fear of not being able to repay the borrowed money and to the fact that some Romanian local representatives do not have the necessary technical preparation in this field.
V. THE PHENOMENON OF “POLITICAL MIGRATION BY MAYORS”
43. The CLRAE delegation was informed that a large-scale phenomenon of “political migration” by local elected representatives had emerged in recent months.
According to a study by the Institute for Public Policy and the Pro Democratia Association, 651 mayors out of a total of 2957 changed political allegiance after the June 2000 elections. The majority (82%) opted for the government party (PDSR). This party was supported by 35% of mayors after the local elections of June 2000; today, it is backed by more than 50% of the mayors. These figures refer only to mayors and do not include local councillors.
44. The main reasons put forward by mayors for changes in allegiance are connected with:
- the networks of political influence involved in the allocation of state funds;
- their party’s results in the November 2000 general elections;
- internal appointments in the parties;
- unacceptable political alliances;
- the resignation of a leading political leader;
- differing opinions within the party;
- lack of assistance from party leaders;
- their party’s negative image after the general elections;
- the arrangements for drawing up electoral lists;
- the influence of leaders from other parties;
- and, to a lesser extent, changes in political ideology.
45. This phenomenon could not fail to concern the CLRAE representatives, who stated that, whatever the reasons, its existence is itself a worrying sign as regards the functioning of local democracy in Romania.
Excessive politicisation of local public administration is likely to weaken the essential dialogue between the central and local authorities, to the detriment of the latter’s autonomy.
46. More particularly, the rapporteurs wondered whether the allocation of financial resources depending on the political complexion of local authorities was, in certain cases, a veiled method of weakening political opponents.
47. As Mr Alain Chénard emphasised during the first visit, such a method of weakening opponents would have the “advantage” of doing away with the need for random procedures of suspension or dismissal, used in 1993-95, on the basis of questionable laws or practices which were clearly in contradiction with the basic legal principles relating to fundamental freedoms and local self-government.
VI. THE DIFFICULTIES FACED BY BUCHAREST, CAPITAL CITY
48. Before describing the difficulties in the relationship between Mr Traian Basescu, general mayor of Bucharest, and the city council, we believe it is appropriate to provide some background information on the election and functioning of these bodies.
49. The executive of the municipality of Bucharest and its boroughs is the mayor (general mayor for the municipality of Bucharest). The general mayor for the municipality of Bucharest is assisted by two deputies, and mayors of the Bucharest boroughs are assisted by one deputy each.
50. The mayor (and deputy/deputies) are a genuine executive body of the basic territorial local authority (or of a borough of the municipality of Bucharest). The mayor and deputies are political figures, and not administrative civil servants. The local executive is a separate body from the local council.
51. The principle whereby the mayor’s functions overlap is expressly provided for by law. As well as being an autonomous administrative authority for the basic territorial local authority (or borough of the municipality of Bucharest), the mayor also acts as state representative in the territorial local authority (or borough of the municipality of Bucharest).
52. However, in his/her capacity as local administrative authority, the mayor enjoys complete autonomy, as provided for and guaranteed by constitutional and legal provisions.
The executive body, the mayor, is a one-person entity. Deputy mayors do not have their own powers, they merely exercise the powers delegated by the mayor or replace him/her in the event of leave or suspension.
53. The mayor is elected by the citizens of the territorial local authority (or borough of the municipality of Bucharest), by universal, equal, direct, secret and freely expressed ballot. The election takes place in two rounds, under the first-past-the-post system, and is uninominal. Mayoral elections are held at the same time as elections to local and county councils. Mayoral elections are validated by courts of first instance. Mayors take an oath before the local councils, and their term of office is four years,.
54. As a general rule, responsibilities are distributed between the local council and the mayor according to importance (the most important subjects are reserved for the deliberative body), the nature of the activity (decision-making lies with the local council, and the mayor is generally responsible for preparing and implementing the decision) and urgency (in emergencies, the mayor is responsible for taking and executing decisions).
55. The local council adopts decisions and the mayor issues orders. Both are administrative documents that may be either standard-setting in nature or refer only to individual cases. The local council has both administrative decision-making tasks (in the most important fields) and supervisory tasks vis-à-vis the local executive. The mayor does not submit a political programme to the local council either on taking up his/her functions or during his/her term of office.
56. The mayor submits various reports to the local council, in the form of memoranda or statements: memoranda on the economic and social state of the territorial local authority (or borough of the municipality of Bucharest) and the implementation procedure for local council decisions, annually or as required; statements on local budgetary income and expenditure; and annual reports on the management of assets.
57. The deputy mayor(s) submit(s) an annual activity report, which is made public by the secretary of the territorial local authority (or borough of the municipality of Bucharest).
58. The law expressly states that the relationship between the mayor and local council should not be one of subordination. The mayor enjoys own powers, listed in the law. In addition, he/she must carry out the tasks allocated by the local council.
The mayor’s activities are supervised by the local council, since the mayor is responsible to it for certain questions.
59. Under the legislation, the mayor and local council each have their own functions as listed in the law, and these are to be fulfilled within the legal limits. In addition, the mayor is obliged to carry out additional tasks allotted by the local council. It should not be forgotten that the most important decisions are reserved for the local council and that, apart from his/her other functions, the mayor is the body responsible for preparing and implementing local council decisions.
60. Under the legislation, mayors can only be dismissed or local councils dissolved following intervention by other authorities (prefect, Government, courts, local referendum), and is only possible in the event of serious and sustained violation of the constitutional and legal provisions and of the interests of both the state and the local territorial authority (or borough of the municipality of Bucharest). Mayors have the same direct public legitimacy as local councils and the law states expressly that they should not be subordinate to the councils. Mayors may be removed from office by referendum.
61. In practice, conflicts between mayors and local councils occur frequently in Romania notably in large cities. To date, these conflicts have been resolved politically, via negotiations by local political forces or through more general methods, by applying pressure to public bodies (county councils, chairs of county councils, prefect, Government) “held” by the conflicting parties.
62. A clear example of political tensions between mayors and local councils has emerged in Bucharest, the capital. In recent months, these tensions have developed into outright conflict, to the detriment of citizens’ interests. The seriousness of this conflict was recognised by the CLRAE representatives at the time of their first meeting with the capital’s general mayor in October 2001.
63. The conflict is essentially due to the fact that Mr Traian Basescu, general mayor of Bucharest and the city’s general council (or, more accurately, its political majority) are from opposite political camps: the general mayor is chair of the main national opposition party, and the general council is of the same political persuasion as the government. Mr Basescu, who is a very strong personality, thus governs without the political support of the municipal council.
64. Addressing himself to the CLRAE representatives, on the occasion of their first visit Mr Basescu referred to the widespread corruption, the poor application of new laws (which he did not criticise as such) and the regrettable tendency of the majority to offload the most costly responsibilities onto the local authorities without providing the corresponding financial resources.
65. At this meeting, held in Bucharest City Hall, the CLRAE representatives had the impression that the main representatives of the municipal council opposed to the mayor (ie the chairs of the council’s statutory committees) had, so to speak, not gone out of their way to facilitate the meeting between the delegation and Mr Basescu. This impression was based on the attitude of a number of councillors who met the delegation at the entrance to the City Hall.
66. Following the meeting with the mayor, the delegation was able to hold an exchange of views with the above-mentioned local councillors, who had, moreover, also attended the meeting with Mr Basescu. They were eager to point out that they had been told very late in the day about the arrival of the CLRAE delegation and that it had also asked to meet some municipal councillors.
67. As to the substance, they said that Bucharest should be given a special status of capital. They stressed the urgent need to give Bucharest the same powers as had been granted to the counties (judets). The CLRAE representatives was receptive to these demands and, conscious of the significant tension which had developed in other central and east European countries for similar reasons (Kyiv in Ukraine for example), acknowledged that the problems of a capital should be addressed in a special way.
68. In particular, the delegation stressed the importance of fulfilling at all times the double role played by capitals which should be able to safeguard the interests of the state and, at the same time, to represent the interests of the citizens as expressed in the context of fully-implemented local self-government in the same way as other cities in the country.
69. After the first visit, the Romanian authorities sent the President of the Congress an official document describing how the situation in Bucharest was developing7.
This document refers to Government Decision no.1/2002 of 10 January 2002 by which the General Council of Bucharest was dissolved. On the basis of this decision, the two sub-prefects and the Secretary General of the Prefecture of Bucharest Municipality and two experts for the Bucharest Municipality from the control body of the Ministry of Public Administration were discharged from office.
70. Following the Law 215/2001 (Article 57)8, the General Council of Bucharest was dissolved for having adopted, in a 6 months delay, 3 decisions that were cancelled by the administrative court through definitive and irrevocable judicial decision.
The Rapporteurs were informed that the decision regarding the dissolving measure was appealed by a number of councillors of the Bucharest General Council in the administrative court. The implementation of the Government decision is therefore suspended until the court decision.
71. Making a comment on a report concerning the situation of public administration in Bucharest, established under its direct responsibility, the Prime-Minister, Mr. Adrian Năstase, on 11 January 2002, declared that: This radiography of the situation in the City Hall shows actually what has happened in the City Hall of Bucharest in the interval after 1989 – chaos, disorganisation, personal or group interest networks that led to an extremely negative system and with very serious effects on Bucharest citizens”.
72. The document addressed to the Congress also refers to:
the politicisation and the growing corruption of some branches of the Bucharest administration;
the fact that a number of high officials of the Bucharest administration who were recently convicted or are under judicial inquiry are confirmed in their positions of directors by the general mayor;
the non-exercise of his responsibilities by the general mayor;
the extremely difficult relation between, on the one hand, the general mayor and the council, and, on the other, between the mayor and the mayors of the six sectors;
the appeal by the Prefect of Bucharest municipality in the administrative courts against 42 decisions of the general mayor;
the delay in the preparation and in the adoption of the city budgets.
73. Following the above-mentioned document, the Government and the Prime Minster, expressed the conviction that the election of a new General Council for the Bucharest Municipality will represent a positive step.
74. During the second visit (February 2002), Mr Cozmanca informed the Rapporteurs that a draft Law on the status of Bucharest as a capital city is being prepared.
In this respect, the Rapporteurs insisted about the necessity to consult all the actors concerned, included the General Mayor of Bucharest.
More generally, the Rapporteurs noted that the relation between the council and the mayor, notably in large cities, are sometimes unstable and can degenerate in serious political conflicts. They expressed the opinion that the excessive politicisation of this relation can have very negative effects on the administration of the cities concerned.
75. During their second visit, the general mayor of Bucharest made a point of informing the rapporteurs that the government was using emergency orders to remove powers from him (sometimes in ways that contradict the principles of good administration) and then allocated these powers to the borough mayors (affiliated to the social-democratic party). He also said that this behaviour was resulting in a situation where he no longer had the resources needed to work (his staff has been halved). He no longer dared to adopt standard-setting texts, for fear of being penalized by the government on the basis of recently adopted legislation on the dismissal of local elected representatives.
Following this meeting, these arguments were completely contradicted when the chairs of the council committees informed the CLRAE representatives of the general mayor’s shortcomings as regards his responsibilities and duties, especially in relations with the council. The Congress rapporteurs took note of all the opinions expressed.
VII. CONTROL OF LOCAL COMMUNITIES BY CENTRAL AUTHORITIES
76. While it noted the progress achieved by the passing of the recently adopted laws – and in particular with regard to the fundamental principles contained in the European Charter of Local Self-Government (principles of administrative and financial autonomy, subsidiarity, connexity, etc) – the Rapporteurs made a number of criticisms of the procedures and conditions laid down by law no. 215/2001, particularly in respect of the supervision and/or sanction activities carried out by central government9. These criticisms relate primarily to:
a) The de jure suspension of the decisions of local authorities challenged by the Prefect before the administrative courts (Section 27.1):
in practice, the said automatic suspension can have the same effect as annulment and can thus, it would appear, have an adverse influence on the decision-making autonomy of local bodies. The provision in question can be considered contrary to Article 8.3 of the European Charter of Local Self-Government which establishes that the intervention by the controlling authority should be kept in proportion to the importance of the interests which it is intended to protect.
b) The suspension of local councillors and mayors in the event of their being remanded in custody on the orders of the public prosecution service10 (Sections 59.1 and 77.2): this provision could result in a breach of the principle of the presumption of innocence enshrined in the European Convention on Human Rights and the Romanian constitution11. The suspension of a local elected representative from his or her post prior to a final decision taken by a court should be accepted only in exceptional cases, explicitly mentioned in law and, in any event, should never be automatic and follow on from a decision taken by non-independent judicial authorities (the public prosecution service).
It is, moreover, difficult to understand why there is a difference in treatment between local councillors and mayors: in connection with the term of office of local councillors, Section 59.2 states that suspension shall continue until the matter is finally resolved; for mayors, however, Section 77.4 says that suspension shall continue until the end of the remand in custody.
The provisions in question can also be considered to be contrary to Article 8 of the European Charter of Local Self-Government which, in sub-paragraph 2, provides solely for supervision of the activities of local authorities, implicitly excluding any direct supervision of the organs (in this connection see the CLRAE’s interpretation of Articles 7 and 8 of the Charter in Recommendation 20 (1996) on institutional relations between central, regional and local authorities and the Congress’s political monitoring of the implementation of the Charter).
c) The automatic dismissal of local councillors in the event of a court conviction entailing a sentence limiting personal freedom or in the event of absence without reason from three ordinary sessions of the local council (Section 60.1.f.i and Section 72); in a similar vein Section 72.2.f.i states that the office of mayor will be terminated where the latter has been convicted by the courts and given a custodial sentence or where the mayor, in the performance of his or her duties, has issued three regulatory provisions in the space of three months which have been annulled by the administrative courts:
The provisions concerning the dismissal of elected representatives where the latter have been convicted and given sentences restricting personal freedom are too severe in that they do not specify the offences for which such measures would apply. The law should mention explicitly that dismissal will come into effect only in connection with particularly serious offences (eg against another person, property or the public administration) or offences which entail serious limitations to personal freedom.
The provisions providing for the dismissal of local elected representatives for failure to attend meetings (councillors) or in the event of decisions annulled by the administrative courts (for mayors) are also too severe.
In conclusion, such rules are also contrary to Article 8 of the Charter.
d) A mayor’s term of office can be terminated following a local referendum requested by at least 25% of the population of the municipality concerned, proposed by the Prefect and decided on by the government on the grounds of failure by the mayor to discharge his or her functions in accordance with the law, including those performed as a representative of the state (Sections 73-76):
Although from a strictly legal point of view such a procedure does not pose any particular problem, from a practical point of view, when applied, it could give rise to abuses committed purely for political purposes. Accordingly, the Congress should closely monitor application of this procedure and, where appropriate, carry out fact-finding missions at the request of the associations of local authorities and/or the Romanian delegation to the CLRAE.
e) Early dissolution of local councils by central government where such councils have adopted within the space of 6 months three decisions which are subsequently annulled by the administrative courts (Section 57.1) or ipso jure where the said councils have not adopted any decision in the course of three consecutive ordinary sessions (Section 58.1):
These provisions are excessive. They should spell out more clearly that the early dissolution of a council may come about only where the actions of the local council represent a threat to public order as a whole or jeopardise the institutional stability of the country.
In view of the above, these provisions are also contrary to Article 8 of the Charter.
f) The appointment by the Prefect of the municipal secretary (Section 84.1), who is empowered to countersign the acts of local authorities which he or she deems to be legal (Section 85.1.c). Such municipal secretaries are forbidden from being members of a political party; failure to comply with this will result in their being relieved of their duties (Section 83.2): these provisions raise a number of concerns: first, the appointment of the secretary by the Prefect: under Article 6.1 of the Charter, concerning the organisation of the internal administrative structures of local authorities, the latter should have a clearly defined degree of autonomy. It is therefore difficult to accept that the secretary of the municipality should not be directly appointed by the mayor or the municipal council. The second concern relates to the power invested in the secretary to countersign local acts he or she deems to be legal. Even though this power may not have any binding effects, given that the secretary is appointed by the Prefect, the central authorities are de facto able to carry out prior supervision of the activities of the local authorities concerned. The provision whereby secretaries are forbidden from being party members is a violation of the freedom of expression guaranteed by the Constitution12 and the European Convention on Human Rights.
g) The setting up of a county advisory committee – comprising representatives of central government (the Prefect), county authorities (the chair of the county council) and towns with the status of county administrative centre (the mayor) – having quasi-decision making powers in respect of the economic development of the county (Sections 145-147): on the face of it, the powers of this committee do not appear to comply with the administrative autonomy granted to the counties under the same law (Section 104). The delegation would like to look into this matter in greater detail.
77. In view of the above, and having given the officials in the Ministry of Public Administration the legal reasons for its concerns about the procedures and conditions described above, the CLRAE delegation stressed that in practice such procedures and conditions could give rise to abuses.
The delegation was also of the opinion that in future the CLRAE might wish to carry out visits to Romania to monitor at close hand the application of the law in question.
In reply to these concerns, Minister Cozmanca told the delegation that the Romanian authorities were aware that the law in question could be improved and that the comments made by the CLRAE would be taken into account for the drafting of an Administrative Code compiling all the regulatory provisions in the field of public administration, including those relating to local self-government. The delegation noted that this revision work might commence in the near future.
78. During its first visit, the representatives also met Mr Funar, mayor of Cluj-Napoca. Last July, the latter had turned to the Congress to denounce his recent arrest by the police (an act which Mr Funar had described as illegal, carried out with the use of violence and motivated by purely political reasons). At the time, the Congress had not taken any specific action. However, the CLRAE delegation made a point of contacting Mr Funar while it was visiting the country. At the meeting, Mr Funar did not wish to dwell upon his arrest which, apparently, had had no major consequences. In contrast, he was able to confirm a number of the concerns related to the situation of local democracy in Romania as mentioned in some parts of this report.
VIII. PROGRESS IN DISCUSSIONS ON THE REGIONALISATION PROCESS
79. It should be remembered that there are no real regions in Romania (in the sense of the provisions of the draft European Charter of Regional Self-Government).
Under Article 3(3) of the Constitution, “The territory is organized administratively into communes, towns and counties. Some towns are declared municipalities, according to the provisions of the law”.
This text contains a specific and exhaustive list of the local territorial authorities. As already mentioned, there are two infra-state levels of public administration in Romania, the basic level (communes, towns and municipalities) and the intermediary level (counties).
80. Thus, articles 119-122 of the Constitution concern only local self-government. Communes, towns and counties (judets), are autonomous local territorial authorities, with legal personality and elected administrative bodies, placed under the state’s administrative supervision. There is no administrative supervision between the local territorial authorities themselves, and they have the same legal status.
Article 121(1) of the Constitution states: “The County Council is the Public Administration authority co-ordinating the activity of Commune and Town Councils, to carry out the public services of county interest”.
81. This is an advanced form of subsidiarity in relations between the local territorial authorities at basic and intermediary level. It means that counties can never be entirely separate local territorial authorities, with full legal personality. The county’s role is limited to co-ordinating the basic local territorial authorities, for the purpose of implementing public services in the county.
82. Article 101 of the new law on local public administration (215/2001) confirms this trend, specifying that the counties are “local authorities set up at county level to co-ordinate the activities of local municipal councils”.
83. In view of the foregoing, establishing genuine regions as described in the previously cited draft Charter, (either in place of or alongside counties) would require revision of the constitution.
That being said, no constitutional provision prohibits an increase in the size of counties (so that they could be considered, from this perspective, as regions) or considerable devolution of state powers to the counties.
84. Law n°151/1998, on regional development in Romania13, provides for the creation of “development regions”.
These regions are not local territorial authorities, but merely forms of co-operation between counties. Thus, they are an institutionalised form of inter-county co-operation.
85. Development regions are structures without legal personality. They are created though a convention signed by interested county councils (or the general council of the municipality of Bucharest), with the agreement of interested local councils. The development region’s activities are co-ordinated by its council, a deliberative body made up of the chairs of county councils and county representatives from each category of local county council (communes, towns and municipalities). The chair and vice-chairs are appointed on a rotating basis by representatives of the counties from among their own number, for a period of one year. The councils adopt their own rules of procedure. They receive support from regional development agencies. The councils and regional agencies are supervised by national organisations (the National Agency and National Centre for regional development).
86. On this legislative basis, 8 development regions (RDs)14 have been set up, and are also justified in view of Romania’s planned accession to the European Union. These entities are empowered to take decisions in the field of economic development but enjoy no political- administrative autonomy.
87. On this subject, during the first visit, the CLRAE representatives noted Mr Cozmanca, Minister for Public Administration, statement to the effect that, based on the experience of these regional development councils, the government may, before the end of its term in office (2004), make proposals to embark on a regionalisation process and set up genuine regions (but not necessarily corresponding to the eight current regions) whose representatives would be directly elected by the population and which would be given significant administrative powers, with due regard for the principles set forth in the draft European Charter of Regional Self-Government. Mr Cozmanca also said that once these new regions had been set up, the counties would continue to function as second-tier local authorities (as is currently the case).
88. This reform could take place in parallel to regrouping of municipalities, and would take account of public opinion and other socio-economic and cultural factors, including the existence of clearly defined regional identities.
89. Bearing in mind that any regionalisation process in Romania necessarily entails revision of the Constitution, these claims were something of a surprise to the rapporteurs. According to the information gathered, the government programme for 2001-2004, accepted by Parliament, does include a section on constitutional revision (chapter VII, para. 7.2). However, none of these proposals for constitutional revision contain references to regionalisation or strengthening of local self-government.
90. It is only in Chapter IX (“Reform of central and local public administration”) that this Programme refers to strengthening local self-government (para. 9.1), preparing administrative and territorial structures to meet European Union criteria (para. 7.1.8) and regional development (para. 9.2), including increased regional capacity in institutional, financial and decision-making terms (para. 9.2.1).
Given that none of these proposals is contained in the section on constitutional amendments, they are assumed to relate to the current constitutional framework. This seems confirmed by later official Government statements.
91. On the other hand, it seems that the Romanian President and Prime Minister have spoken out publicly against regionalisation in Romania on several occasions: in their opinion, it would represent a threat to the independence, unity and territorial integrity of the unitary Romanian national state.
92. During the rapporteurs’ second visit (February 2002), Mr Cozmanca did not confirm his intention to submit a draft law for the purpose of setting up autonomous regions in Romania before the end of his term of office. However, he did reassert his interest in the process of setting up genuine regions in Romania. Accordingly, he agreed to the rapporteurs’ proposal that a European colloquy on regionalisation be held in Romania, in co-operation with the Congress’s Chamber of Regions and the Federation of Local Authorities, in September or October 2002.
93. In this context, Mr Cozmanca hoped that this colloquy could contribute to making it clear, once and for all, that the creation of genuine regions (with directly-elected bodies) would not entail federalisation of the country, and that national unity would never be threatened by such regions.
94. The colloquy would thus be an opportunity to clarify concepts and hold an exchange of views on the experiences of other central and eastern European countries (especially Poland and Slovakia), as well as examples from western Europe (in France, Italy, Spain).
In any case, the final decision on how second-level territorial administration is to be structured lies with the Romanian Parliament, if appropriate through revision of the Constitution.
95. This information report is being submitted to the Institutional Committee for final approval under the responsibility of the rapporteurs, after consultation with Mr De Sabbata’s. Given its status as an information text, these conclusions do not contain particular recommendations.
96. This text is intended merely to provide the Congress’s Institutional Committee with information to enable it to identify the questions that are currently arising as regards local and regional self-government in Romania. Despite the progress made, problems remain, especially as regards:
a) respect for the fundamental principles of local self-government, irrespective of the political interests and the forces in power at central level;
b) the financial resources of local authorities, which continue to be too limited, based on excessively rigid regulations that do not correspond to the powers allocated, and oblige local authorities to depend to too large an extent on state transfers;
c) the status and smooth functioning of local self-government in the capital Bucharest, on account of:
- excessive politicisation of relations between the central authorities and the general mayor on the one hand, and between the general mayor, general council and borough mayors on the other;
- an unhealthy combination of private interests and public priorities;
- inappropriate mechanisms governing the relationship between the deliberative and executive bodies;
- an electoral system that requires further development;
d) the supervision and sanction conditions and procedures provided for in the law with regard to suspension and dismissal, the dissolution of the organs and/or abrogation of the decisions of local authorities.
97. Bearing in mind this information report and the Romanian authorities’ reaction to it, and following the organisation of a European colloquy on regionalisation by the end of 2002 in Romania, the Institutional Committee could re-examine the situation in the course of 2003 and decide on the appropriateness of preparing a second monitoring report on the situation of regional democracy in Romania.
Appendix I (Text in French only)
Congrès des Pouvoirs Locaux et Régionaux de l'Europe
Référence à rappeler : CPLRE/cs
CG/INST (8) 9
Strasbourg, le 2 octobre 2001
PROGRAMME de la visite de la délégation du CPLRE en Roumanie
Bucarest, 3 – 5 octobre, 2001
Strasbourg, le 15 février 2002
PROJET DE PROGRAMME de la 2e visite officielle des Rapporteurs du CPLRE, Conseil de l’Europe, sur la démocratie locale et régionale en Roumanie
Bucarest, 17 – 19 février, 2002
GOUVERNEMENT DE LA ROUMANIE
Document elabore par le MINISTERE DE L’ADMINISTRATION PUBLIQUE
Stade de la mise en oeuvre de la Recommandation nr.12 (1995)
sur la démocratie locale en Roumanie, adoptée par le Congrès des Pouvoirs
Locaux et Régionaux de l’Europe du Conseil de l’Europe