State of local finances in the Netherlands CPL (12) 11 Part II

Rapporteur :
Kathryn SMITH, United Kingdome,
Chamber of Local Authorities, Political Group : SOC

EXPLANATORY MEMORANDUM

Introductory remarks

1. At its meeting of 23 April 2004, following a request from the Dutch delegation to the Congress the Institutional Committee, decided to draft a follow-up information report on local and regional democracy in the Netherlands (rapporteurs Ms. Kathryn Smith, United Kingdom, Chamber of Local Authorities, and Mr. Odd-Arild Kvaloy, Norway, Chamber of the Regions), Prof. Dian Schefold (Germany), Vice-President of the Group of Independent Experts on the European Charter of Local Government acted as consultant). The previous monitoring report together with Recommendation 55 (1999) was adopted by the Congress in 1999.

2. The information report presented to the Institutional Committee on 15 April 2005 dealt mainly with the issues of local taxation and of mayoral elections. After having visited the Netherlands the rapporteurs concluded that an election of the mayors by either the council or the citizens, would be in accordance with a modern-day local democracy in the sense of Congress Recommendation 113 (2002).

3. As to local finance, the rapporteurs concluded that given the very small tax power of municipalities, any decrease of local tax power would present problems. Abolishing the real estate tax on users of dwellings and limiting the remainder without offering any other fiscal source of revenue for the municipalities would bring the Netherlands into conflict with Article 9.3 of the European Charter of Local Self-government and therefore with an obligation of public international law.

4. Further to the report CG (12) 16 the Congress invited a Dutch government representative to attend the 12th plenary session of the Congress with a view to presenting the government’s position on these issues.

5. Subsequently, the Deputy Director General for Kingdom Relations and Governance (Ministry of the Interior and Kingdom Relations) attended the 12^th plenary session of the Congress with a view to presenting the government’s position (Appendix I). He in particular stated that the government of the Netherlands recognised the plea for an increase in local taxation powers which should require an integral approach. Mr. van Kalmthout informed the Congress that the government planned to study conclusions reached by the Eenhoorn Committee commissioned to issue recommendations on how to increase local taxation and they hoped to reach an agreement with the Association of Municipalities of the Netherlands in mid-2005.

6. Subsequently, in its opinion of August 2005, the Council for Public Administration and Financial Relationship on local autonomy in the Netherlands stated that in the near future Dutch municipalities would have reached a ceiling for their expenses. In this way, one can say that a critical bottom line has been transgressed, whereby the position of the municipalities as a fully-fledged government tier is in danger (see Appendix III and para 20).

7. The Council goes on to conclude that municipalities have the right to dispose of a number of possibilities in order to make a balanced choice between the benefit of local measures and services and the level of local taxes. Furthermore, the increasing decentralisation of tasks implies a bigger financial risk for municipalities. In order to cover the risks or the financial setbacks following the repartition of the Municipal Fund and the specific grants, an enlargement of the local taxation power is absolutely necessary. Such an enlargement does not necessarily imply an increase of the taxes for citizens or businesses. From the point of view of autonomy, new local taxes have to meet at least two requirements: they should be recognized as a local tax and the rates should be fixed autonomously by the municipalities.

8. At the same time, a draft law on the reform of the real estate tax has been formally presented to Parliament. The real estate tax for users of houses shall be abolished as from 2006. The yearly increase of the rates of the remaining real estate taxes for owners and for commercial buildings shall be maximised. The loss for the municipalities will be compensated by an increase in the municipal fund. Although the Dutch government had promised that no municipality would lose in any year, a recent study of the Research Center for local taxes of the Erasmus University of Rotterdam¹ has concluded that the compensation measures would lead to a structural reduction of income for a substantial group of municipalities.

9. In September 2005 the Bureau of the Congress was informed by both the President of the Dutch delegation to the Congress and the President of the Association of Netherlands Municipalities that contrary to the recommendation of the Eenhorn Committee to replace the real estate tax by a surcharge on income tax, the Dutch government has announced that it will not take any decision on such a reform during this cabinet period. It is only planned to have this subject as a discussion point in the formation of the next government after the 2007 elections (Appendix II).

10. At its meeting of 19 September, after having heard an opinion of the President of the Association of Netherlands Municipalities, the Bureau of the Congress took the position that this new situation justified that the Congress should address a Recommendation to the Dutch authorities and to invite them to continue seeking new sources of fiscal revenue which would compensate the loss stemming from the abolition of an important part of the real estate tax. Therefore, it instructed the Institutional Committee of the Chamber of Local Authorities to prepare a draft Recommendation to be submitted at the Autumn Institutional Session (7-9 November 2005, Strasbourg).

11. The following paragraphes of this Explanatory memorandum are largely based on Part 3 of the Information report CG 12 (16) and are aimed at explaining the current situation with regard to local finances in the Netherlands.

1. The present situation

12. The Municipal Act contains a detailed title IV on local finance. This title gives, in accordance with its ruling, the municipalities the power to levy taxes according to by-laws issued by the municipalities. In this context the most important tax is that on immovable property (real estate tax, onroerende-zaakbelastingen, ozb, article 220-220i Municipal Act). According to the statistics presented by the Central Bureau of Statistics (CBS), the amount of real estate tax was, in 2004, about €3,4 billion ². That means that 83% of the local taxes result from the real estate tax; the other local taxes (see article 221-229d Municipal Act) have lower importance. But all the taxes of local authorities cover only 8,8% of the municipal income. From all the financial charges of citizens in the Netherlands, 61,5% are State taxes, 34,5% social security contributions and only 4% taxes to public bodies, of which 3,1% to municipalities, 0,5% to the provinces and 0,4% to the polder authorities. Therefore local authorities depend to a large extent on grants from the State.

13. Users of real estate as well as the owners are subject to the tax . There is no limitation of the tax rate which is to be established by the municipalities. The taxation of private and commercial buildings may be different. But the rate of the owner’s tax must not exceed 5/4 of the user’s taxrate, and certain real estate objects (like churches, agricultural land) are exempt.

14. For the purpose of the taxation, real estate has to be valuated. This valuation, taking place every four years, is a task of the local authorities. It determines the valuation for the State taxes and the polder taxes as well. Therefore it ensures an important function to the local authorities.

2. The conclusions of the 1999 report

15. In 1999, the monitoring report focussed on the situation of local finance as one of the important points (part 6, nr. 41-46, recommendation 55(1999), nr. 47, 50h, i). Based on figures that the then municipalities had 15%, provinces 10% of their income resulting from taxes, the report stated that they were “excessively dependent on central government grants”, with a special emphasis on the fact that the major part of the grants was given for tasks administered in common by the State and the local authorities and therefore under State control. In this situation the report asked whether it was in line with article 9 of the European Charter. The question was raised regarding article 9 § 1, asking whether those were “adequate financial resources”, and article 9 § 7, asking whether the condition that “as far as possible, grants to local authorities shall not be earmarked for the financing of specific projects” was fulfilled. Furthermore the reservation of the Netherlands regarding article 9 § 5 of the Charter was criticized.

3. The reform of the real estate tax

16. Since 2002 the government of the Netherlands has planned to reform the real estate tax. This intention is stated in the coalition agreement for the current legislature. Originally the law should have come into application from 1 January 2005 but a lack of time for discussion in Parliament was the reason to postpone it.

17. The bill was formally presented to the Parliament on 27 April 2005³. It should be discussed in the House of Representatives at the end of September 2005. After the vote in this Chamber, it will be presented to the Senate, probably in the second half of November 2005.

18. The government still has the intention to enforce the law from January 2006. In the meantime, the bill includes retroactivity to this date in the event that Parliamentary discussions need more time (This measure goes against the law that requires municipalities to present their budget to the province before 15 November).

19. According to that project, the real estate tax of users of houses shall be abolished. The annual increase of the real estate tax for owners, thus no longer limited by the relation to the user’s tax, and for commercial buildings shall be maximised, so that the power of municipalities to determine the rate is limited. The government proposes to increase the municipal fund as far as equalizing the loss for the municipalities by higher, freely disposable grants from this fund.

20. The discussion on the reform has been extremely lively. Besides the working meetings which were held, there was, before the presentation of the letter to the Parliament, an opinion of the Center of the Economy of Local Authorities of the University of Groningen (Centrum voor Onderzoek van de Economie van de Lagere Overheden, COELO) of September 2003 and a large opinion of a Committee for Local Taxation (Commissie Gemeentelijk Belastinggebied ) of 25 May 2004 that were considered and are discussed here. The VNG sent his final opinion on 9 June 2005. The National Council for Financial Relationship published a final opinion on the bill on 3 June 2005 (Adviesvoorstel afschaffing gebruikersdeel OZB op woningen (maximering overige OZB-tarieven) Kamerstukken II 2004-2005, 30 096, nr 6). Also, this national Council, together with the national Council for Public Administration published in August 2005 a report on local autonomy in The Netherlands. In this report, the Councils conclude that a critical bottomline has been reached in the financial autonomy of municipalities. They plea for new local taxes with a full taxation power⁴. The opinion of the Council of State (Kamerstukken II 2004-2005, 30 096, nr 4) is likewise very negative.

4. Arguments in favour of the reform

21. The government’s proposal seems to be founded on the fact that there is a certain unwillingness to pay taxes, and especially noticeable taxes which have to be paid directly, not detained e.g. by the employer. This unwillingness may be increased by the fact that the value of property has increased, along with the amount of the taxes, an issue which has become sensitive. Another reason given by the Government in the presentation of the budget for 2006 (Miljoenennota) is to relieve the financial burden on the tax payer.

22. Considering the limited percentage of real estate tax for the municipal income, it may seem a simplification of administration, popular and convincing to abolish or to maximise this tax, in favour of a guarantee of local finance in less visible forms, i.e. through the municipal fund. As the governmental proposal says, this fund shall be increased to equalize the loss of municipalities, and its amount shall be guaranteed. In that way, a rational distribution shall become easier, while until now, hoping that a high value of real estate tax could be taken as an argument for a higher portion of participation in the municipal fund; several municipalities were tempted to raise real estate tax with the scope to get more from the municipal fund, anticipating the introduction of government measures.

5. Objections against the reform

23. For the municipalities, the abolition of the user’s tax combined with the maximisation of the owner’s tax involves a noticible reduction of their own financial resources. The by far most important local tax is reduced to not much more than half of the current sum⁵, and local taxation, anyway very limited in the Netherlands, loses its importance, reduced to about 6% of the local authorities’ income. Obviously, as all the advisory opinions on the question say, such a development limits the free exercise of autonomous powers of the municipalities. One has to fear that the number of the insolvent municipalities under special, conditioned aid of the State (the so called “article 12-municipalities”) will increase.

24. Such a development heavily infringes upon the classical democratic connection between taxation and representation. The municipal citizen, if not owner, is no longer subject to local taxation. The owner of immovable property who remains a tax-payer may not always be resident of the municipality and therefore not involved in the decision on the real estate tax he or she has to pay. The financing will become, to a much greater extent, the task of the central State, but the municipal fund, decided by the central Parliament, shall be guaranteed, and the use of it shall be in the power of the local authorities. The entanglement of central and local powers, anyhow characteristic for the Netherlands administration⁶, is in that way expanded even to the field of autonomous powers of local authorities, because financial resources are substituted by State grants, certainly leaving more decision-making capacity to the municipalities if there is no conditioning, but nevertheless depending on a central level decision. At the same time the taxation burden imposed on citizens is not diminished, but simply shifted from local to central taxation. Furthermore in case of budget deficit EC-obligations may force the central State to reduce the municipal fund, in spite of previous guarantees.

25. Another problem is raised by the – already until now problematic – method of division of the municipal fund. If the grants shall substitute the resources coming from the user’s tax, the existing inequalities of repartition continue; they are even aggravated by the higher amount of the then necessary grants. Therefore, as the IPO has stressed, the specific circumstances of individual municipalities should be taken into account. On the other hand a correction would have to avoid that – even unnecessary – high real estate taxes are taken as criterion for financial needs. Yet to modify this situation, it would not be necessary to abolish the user’s tax, but it would be sufficient to determine the further financial needs of municipalities less in accordance to the rate of the real estate taxes.

26. Even if the user’s tax is repealed, the necessity of valuation of real estate and thus a burden for the owners of immovable property remains, for the scopes of the owner’s tax, the State’s taxation and the polder tax. So far there is no exoneration of the citizens. There is no simplification of the administration that can be reached.

27. In spite of all these reasons, it has to be admitted that there are criticisms of the existing system of real estate taxation, and it could be useful to investigate alternative solutions. In this sense one could ask why real estate, being an object of local taxation, has to be imposed by the State as well. However, State taxation is theoretical, because the fiscal system of the Netherlands allows the deduction of so many expenses from the revenue resulting from real estate that there is practically no tax to be paid. Nevertheless this consideration, anyhow contested by the government shows that real estate is highly subsidised by the State’s taxation policy. If this subsidy prejudices the local tax power, this tax power is discriminated against real estate property. One may ask whether such a policy is wanted. – Furthermore the above mentioned Rapport “Belasten op niveau” (p.21-45), like other studies of the last decades, largely discusses alternative possibilities such as local taxes on income, on consumption of energy or on every citizen. But the report shows that they all raise problems, and there is no concrete alternative that could substitute real estate tax. Just in this context the Advisory Council on Financial Relationships has explained that a substitutive tax would have to be introduced immediately to guarantee local finance. The “Eenhoorn Commission” which had the assigment by government to look for a concrete alternative to the real estate tax, proposed in Mai 2005 to replace this tax by a surcharge to the income tax⁷. However the government does not intend to discuss this proposal during this cabinet period. This means that municipalities will have to wait until after 2007 to see if they can have an alternative tax. The above mentioned opinion of the Advisory Council on Financial Relationship has not been taken into account.

6. The impact of the European Charter of Local Self-Government

28. Based on these arguments the question arises whether the intended reform of real estate tax is in line with the principles of local self-government. This problem may be discussed as one of Dutch constitutional law taking notice of the detailed regulation of local self-government in chapter seven of the constitution, esp. articles 124 and 132. Furthermore there is the problem of compatibility with the European Charter of Local Self-Government.

29. Under this aspect, the 1999 report (nr. 44) discussed the then existing local finance system regarding article 9 § 1 European Charter. According to the report, “The question then arises as to whether Dutch local authorities have ‘adequate financial resources’, as article 9 paragraph 1 stipulates.” Furthermore, according to the report, “there are serious grounds for doubting whether the situation in the Netherlands is in compliance with article 9 paragraph 7 of the Charter, whereby ‘as far as possible, grants to local authorities shall not be earmarked for the financing of specific projects’”. Based on these statements, the recommendation 55 (1999), regretting the low amount of own resources, has stated that the dependence for “the remainder of resources being apportioned by the Municipalities Fund and the Provincial Fund which is not in conformity with the principles of Article 9 of the Charter” (nr. 47) and has recommended to the Government of the Netherlands, “in the spirit of Article 9 of the European Charter of Local Self-Government, the possibility of permanently and lastingly allocating a fixed percentage of public revenue to territorial authorities and furthermore their increasing their own resources significantly through additional taxes or other measures” (nr. 50i). From a more general point of view in the following year the 4^th General Report on monitoring the implementation of the European Charter of Local Self-Government, presented by Mr. J.C. Frécon (France) (CPL (7)3 with Recommendation 79 (2000)) has confirmed and underlined these aspects (see esp. Recommendation 79 (2000) nr. 11 and Appendix 1 nr. 2a).

30. The recent developments and the facts stated during the mission of 19 and 20 January 2005 do not give any reason to modify these statements and recommendations. The problem of low own resources still exists. Nevertheless that does not answer the specific problem of the current reform of real estate tax, especially if, according to the government’s proposal, the loss of taxation power is equalized by the growth of the municipal fund.

31. But – besides the problem whether a guarantee of the municipal fund is effective, especially under the possible EC-pressures, and therefore may be qualified as “permanently and lastingly allocating” in the sense of the quoted recommendation – a reduction of taxation power in favour of the municipal fund raises the problem not yet addressed in the 1999 report whether article 9 § 3 of the European Charter is observed. According to this paragraph, “Part at least of the financial resources of local authorities shall derive from local taxes”. The Charter does not say which part, and therefore the government doubts a binding effect. But as a rule of public international law, its content must not be simply symbolic. The explanatory report of the Charter describes, in the sense of article 9 § 3, “The exercise of a political choice in weighing the benefit of services provided against the cost to the local taxpayer or the user is a fundamental duty of local elected representatives.” To fulfil this function, the part of the financial resources resulting from taxation has to be substantial, of a certain importance for the fulfilment of local tasks. Therefore, substituting these sources of income by State grants is not in line with article 9 § 3.

32. According to this rule, a comparison at international level shows that, even now, the part of financial resources derived from local taxes is very low in the Netherlands. The above (footnote 1) quoted report (p. 16) mentions for the Netherlands a figure of 1,1% of GDP, while this percentage, e.g. for Denmark and Sweden, is over 15 %, for many other countries over 10 % and even for the State with the lowest rate, the United Kingdom, always 1,4%, i.e. over 20 % more than in the Netherlands. Without stating a general limit – which probably should be determined by other factors as well – it seems at least convincing that a rate of 1,1% is extreme, and that a further reduction can not be compliant with article 9 § 3 of the European Charter. Although there has to be a choice of the national legislation to modify the existing system, the mentioned pretensions, pronounced above all by the IPO and the Rfv, to compensate for a reduction of real estate tax by an additional tax power in other fields seems to be a minimum that has to be maintained. Therefore the abolition of the real estate tax paid by the users without compensation by another local tax seems to be a violation of article 9 § 3 of the European Charter and therefore an obligation of public international law.

33. This general result may be limited in its importance as far as the maximisation of the real estate tax is concerned. Certainly the present freedom of local authorities in the Netherlands to determine the rate of the real estate tax is a certain guarantee, but at such a low level that it is not sufficient to substitute a further taxation power. On the other hand one has to admit – and the European Charter supposes – that every tax power of local authorities is based on State legislation (see article 2 of the European Charter). Granting this power means limiting it at the same time, which the Dutch legislation, until now, does only for the relation between users and owners real estate tax. If the proposal of the government goes further and provides for a maximisation of the owners tax, a similar rule as such finds parallels in most of the European States having limitation of local tax rates. Therefore the limitation as such can not be regarded in contradiction to article 9 § 3 of the Charter. But it is the low percentage of tax financing of local authorities tasks which does not permit a further reduction without violation of the Charter, and the evaluation of the facts stated in the Netherlands imposes this judgment.

34. Nevertheless such a judgment is not one pronounced by a court. According to the Netherlands’ constitution (article 120), even courts have no power to review the constitutionality of Acts of Parliament. Indeed the constitution, open to the influence of public international law, declares “Statutory regulations in force within the Kingdom (…) not (…) applicable if such application is in conflict with provisions of treaties that are binding for all persons” (article 94), and one therefore could argue that the violation of article 9 § 3 of the European Charter as a treaty binding for the Netherlands should prevail and hinder the abolition of the user’s real estate tax. But the present report has to stress that a judgment of this kind is reserved to the Netherlands’ authorities, and that the government does not share the position of the report. The report can – and has to – state the violation of the Charter, but it is up to the government, Parliament and finally the courts in the Netherlands to decide on the consequences.

APPENDIX I
Statement by Mr Paul van Kalmthout, Strasbourg, 1 June 2005

Deputy Director General for Kingdom Relations and Governance at the Dutch Ministry of the Interior and Kingdom Relations, representing the Kingdom of the Netherlands at the 12th Plenary Session of the Congress

Firstly, my thanks to you, Mr. Chair.
Ladies and Gentlemen,
Minister Pechtold regrets being unable to attend this meeting. He hopes you will accept his apologies for having to give priority to the Dutch referendum on the EU Constitution, which takes place today. We all hope his efforts will not be in vain.
Minister Pechtold personally asked me to congratulate you on the 20^th anniversary of the European Charter of Local Self-Government.
Today, we discuss the Congress’s information report on the situation of Local and Regional Democracy in Netherlands.⁸ The report addresses two issues: the appointment of mayors and the proposed changes to local taxes. Let me begin with the mayor.
Earlier this year, as you may know, the Upper House of the Dutch parliament rejected proposals to remove the appointment of mayors from the constitution.
Minister Pechtold announced that the Dutch government would re-submit a proposal to amend the constitution in order to make way for the direct election of mayors in 2010.
In the excellent report by Mrs Smith and Mr Kvaloy, the Dutch government welcomes recognition that the Dutch system of appointment was made more democratic in 2001. We also appreciate the conclusion that the present situation in the Netherlands and the proposal for the introduction of directly elected mayors are in conformity with the European Charter of Local Self-Government.
The government of the Netherlands is of the opinion that the introduction of a system of directly elected mayors is a necessary step to regain the involvement of citizens in the political process. For this reason, election of the mayor by the municipal council has not been considered.
The government of the Netherlands is well aware of the problems relating to the direct election of mayors as raised in your report to the eleventh session of the Congress last year (Advantages and disadvantages of the direct election of mayors). These problems are elaborated in the present information report.⁹
We feel that all these problems can be solved. However, the government’s first priority is to amend the Dutch Constitution.
Minister Pechtold intends to consult all stakeholders on the issue of the direct election of mayors before sending any concrete proposals to parliament.
Bearing this in mind, the government of the Netherlands regards the information report as a support in the debate on the direct election of mayors that is to take place in the months to come.¹⁰
I now turn to the issue of local taxes and finance in the Netherlands. Let me start with some information on the present situation.
Municipal taxes and charges in the Netherlands amount to some € 7 billion. Half this amount is composed of taxes on property (real estate). Both owners and users of property pay real estate tax. Only a few weeks ago, the Dutch government submitted a bill to parliament to abolish real estate tax for users (real estate tax for owners will continue to exist.) Thus the power of municipalities to tax will be reduced by some € 1 billion. Municipalities will be compensated through an additional grant of the same amount to the Municipalities Fund. The total content of the Municipalities Fund will be increased to some € 11 billion. Municipalities are completely free to dispose of the resources of this fund as they wish.
The fundamental reasons for this reform of policy are twofold. First of all, there is strong criticism from citizens’ and consumers’ organisations against the level and annual increase of these taxes, which has been acknowledged by government. A second reason lies in the objective to prevent incomes policy at the local level. Municipalities tend to safeguard low-income groups from paying real estate tax. This practice is in conflict with an agreement between central government and the Dutch Association of Municipalities (VNG) that municipalities should not perform incomes policy.
The information report by Mrs Smith and Mr Kvaloy discusses the conformity of these proposals (and of the present local tax situation) with the European Charter of Local Self-Government. In addition to this, the report questions whether the proposals comply with Article 9 of the Charter, referring in particular to paragraphs 1, 3 and 7.¹¹
The government of the Netherlands is of the opinion that the present situation in our country is in conformity with the Charter. The same holds true for government proposals on real estate tax.
The Municipalities Act (Gemeentewet) and the Financial Relations Act (Financiële Verhoudingen Wet [FVW]) guarantee sufficient resources for local authorities to implement policies at their own discretion. As mentioned previously, apart from the € 7 billion originating from local taxes/charges, municipalities have grants from the Municipalities Fund freely at their disposal (€ 11 billion). Of course, municipalities do perform specific tasks for central government; however, to be able to execute these tasks, they receive additional grants (up to a total sum of € 14 billion) on top of the € 18 billion of resources that they are free to spend as they wish.
Therefore, use of almost 60% of the € 32 billion within resources (7+11+14) is completely at the discretion of the municipalities. The abovementioned acts also provide a legal guarantee that the annual increase of Municipalities Fund resources be linked directly to the increase of central government resources (accrès). Furthermore, when specific tasks are imposed on local authorities, the Financial Relations Act provides the safeguard that central government must either explain how these tasks are to be financed or else it must provide additional grants (Art. 2 FVW)
The Dutch government acknowledges that its local taxation proposals diminish the tax-raising power of local authorities. The decrease is € 1 billion out of € 7 billion, i.e. a reduction of some 15%. The government also realizes that local taxation powers in the Netherlands are relatively limited from an international perspective. However, this situation should not be viewed in complete isolation. The situation vis-à-vis the Municipalities Fund should not be totally ignored either. The Municipalities Fund and local taxes/charges provide local authorities with substantial room for manoeuvre. Furthermore, we should bear in mind that local differences in taxes and expenses meet with weak acceptance from the citizens of a country with a small territorial area.
Nevertheless, the government of the Netherlands recognizes the pleas from many organisations for an increase in local taxation powers. However, as stated before, this requires an integral approach. At the end of 2004, the Dutch government and the IPO/VNG reached an agreement on coding the relationships between central, regional and local authorities. Part of the agreement was the establishment of a committee (chaired by Mr Eenhoorn) to study the possibilities of increasing local taxation power.
On 18 May this year, the committee’s conclusions were discussed at a meeting between the government and VNG/IPO. The outcome of this meeting was that central government would study the committee’s recommendation to increase local taxation power on its technical merits and would reach its conclusion this summer. Subsequently, the Dutch government hopes to reach an agreement with the VNG on the issue.
From this perspective, my government is of the opinion that both the present local taxation situation in the Netherlands and the proposed policy measures do indeed meet the requisites in Article 9 of the Charter, (not only paragraphs 1 and 7, as is stated in the report, but also – in spite of what the report suggests – paragraph 3).
The Dutch government appreciates that the report expresses views on the desirability and non-desirability of developments in the Netherlands within the context of the Charter. The government accepts conclusions that reflect these views wholeheartedly. However, in our opinion, it is a bridge too far to state - as the report ultimately does - that “acceptance by parliament of the present proposal would bring the Netherlands in conflict with international legal obligations”.
Therefore, the excellent report by Mrs Smith and Mr Kvaloy could be further improved by amending this very last sentence of their report.
I thank you very much for your attention.

Appendix

€ Bln € Bln
GNP 475
Local tax 3.4 National tax 110
Local Charges 3.4 National charges 15
==== + ==== +
1. Local tax/charges 6.8 3. National tax/charges 125
Municipalities Fund 11.0
Specific grants 14.3
(Budget deficit) ( 2.5) (National budget deficit) (10)
====
2. Local resources 32.0

1/2 = 21%

1/(1+3) = 5%

APPENDIX II

Mr. President,

At its last annual plenary session on June 2nd, 2005, the Congress discussed the conclusions of the report of Ms Smith and Mr Kvaloy on the situation of Local and Regional Democracy in the Netherlands. It stressed in particular its opposition to Dutch government plans to abolish a major part of the real estate tax in the Netherlands. In her intervention, rapporteur Kathryn Smith expressed her concern that the planned reforms did not meet the requirements in the European Charter of Local Self-Government that national governments should ensure a degree of autonomy for local authorities’ own finances. The Congress agreed with her that further reduction of the already low taxing power of Dutch municipalities was a step in the wrong direction.
It urged the Dutch Government to introduce an alternative local tax, should the real estate tax be definitely abolished.
This wish of the Congress seemed to be granted by Mr. Van Kalmthout, representative of the Dutch government. He announced, at the same plenary session, that a mixed committee (so called committee Eenhoorn) had been established to look for alternatives for the real estate tax with the intention to increase local taxation power.

In the meantime, new developments have provided clearer information on the government’s response:

- The bill on the reform of the real estate tax has now been presented formally to the House of Representatives of the States General. As announced in the Congress report, the real estate tax for users of houses shall be abolished as from 2006. The yearly increase of the tariffs of the remaining real estate taxes for owners and for commercial buildings shall be maximised. The loss for the municipalities will be compensated by an increase of the municipal fund.

Answering to critical questions of several political parties on the compatibility of the reform with article 9.3 of the European Charter of Local Self-Government, the Minister denies that this is incompatible with the Charter. In his view, the reform does not prevent a good functioning of local autonomy, because municipalities will be compensated for the loss by an increase of the Municipal Fund.

Last week, the government sent to Parliament its reaction to the recommendation of the committee Eenhoorn. This committee proposes to increase local tax power by replacing the real estate tax by a surcharge on the income tax. The government announced this week that it will take no decision on such a reform in this cabinet period. It will be only a discussion point in the formation of the next government after the elections of 2007.

In view of these very negative developments and in order to address the Dutch government officially on this question, I would like to ask you, also on behalf of Mr. Deetman, Mayor of The Hague and President of the Association of Netherlands municipalities (VNG), to prepare for the autumn session of your Congress a recommendation on local finances in The Netherlands.

Staying at your disposal for further information on this matter,

Yours sincerely,

Jan MANS
Mayor of Venlo
President of the Netherlands delegation
to the Congress

APPENDIX III

Opinion of the Councils for Public Administration and Financial Relationship on local autonomy in The Netherlands
Summary provided by the Association of Netherlands Municipalities (VNG)

This opinion has been drawn up by the Council for public administration and the Council for financial relationship following a request by the Committee of Interior Affairs of the House of Representatives to take a position on the theme “ local autonomy in relation to local taxes” .

The Councils are of the opinion that financial autonomy of municipalities does not mean anything if it is not accompanied by constitutional and political autonomy. That is why this opinion is given in a broader context.

Municipal autonomy is a constitutional principle, but it has little value if it is not applied in reality. That is why the focus of this opinion is directed at the diverse dimensions of municipal autonomy (constitutional, administrative, financial and social) and at the developments that are a threat to the autonomous position of municipalities.

In this way, the two Councils want to contribute to a stronger awareness of the special place and significance of municipalities in government. This is not without reason, as local autonomy is subject to a growing pressure.

Just at a time when many forces and trends are directed to centralisation and uniformization of governance, it is important to realize the value and the meaning of a strong local autonomy. This is not in the first place a problem of constitutional organisation within our decentralised unitary state. It is chiefly a task for the central government, the provinces and the municipalities themselves to keep striving for a good public governance that functions as closely as possible to the citizens. This means that municipalities are given the possibility to take integral, innovative and efficient measures that are adapted to the local situation. This is the political and social meaning of municipal autonomy in the year 2005.

The central government uses more and more various administrative and financial instruments to steer or influence local policy and local implementation of policies (such as political agreements between government tiers, covenants, performance agreements, financial steering instruments, monitoring, benchmarking, etc…). Especially, specific regulations with a character of subvention affect the freedom of policy of municipalities. The effect of these instruments is that municipalities are more and more subject to quality control by central government. A culture of justifying and reckoning is appearing, that has a paralysing effect on local government.

Besides the right to administrative autonomy, there is also the right to financial autonomy. It means that municipalities have the right, within certain limits, to acquire autonomously their own money, to spend and to lend money, in order to make the choices that are necessary. To that end there are many possibilities to levy taxes of their own. However, Dutch municipalities currently depend for 82% of their income on the general grant from the Municipal Fund and on the specific grants, from which the volume and partly also the pattern of spending (for specific grants) are fixed by central government. This is the opposite of the provision of the law on financial relationships, which stipulates that there must be a financial order of preference, whereby municipal expenses should in first instance be financed by local taxes and other charges.

Dutch municipalities finance about 9% of their expenses from the income from local taxes. With this percentage, the significance of the Dutch municipal taxation is very low compared to other countries. If the bill that provides the abolition of the user’s part of the real estate tax and the maximalisation of the other part, the income will be further reduced by 23,5 % and the freedom to fix the rates will not exist anymore. This means that in the near future municipalities will have reached a ceiling for their expenses. In this way, one can say that a critical bottom line has been transgressed, whereby the position of the municipalities as a fully-fledged government tier is in danger.

Municipalities have the right to dispose of a number of possibilities in order to make a balanced choice between the benefit of local measures and services and the level of local taxes. Furthermore, the increasing decentralisation of tasks implies a bigger financial risk for municipalities. In order to cover the risks or the financial setbacks following the repartition of the Municipal Fund and the specific grants, an enlargement of the local taxation power is absolutely necessary. Such an enlargement does not necessarily imply an increase of the taxes for citizens or business. From the point of view of autonomy, new local taxes have to meet at least two requirements: they should be recognized as a local tax and the tariffs should be fixed autonomously by the municipalities.

¹ OZB : de werkelijkheid in beeld, Erasmus Studiecentrum voor belastingen van locale overheden (ESBL) Rotterdam, 21 September 2005.

² For 2004, the Report of De Commissie Gemeentelijk Belastinggebied, made by P.B. Boorsma/ C.A. de Kam/ L. van Leeuwen, Belasten op niveau. Meer fiscale armslag voor gemeenten, Den Haag 2004, p. 15, indicates 3.359

³ Kamerstukken II 2004-2005, nr 30096: Wijziging van de Gemeentewet in verband met het afschaffen van het gebruikersdeel van de onroerendezaakbelasting (OZB) op woningen en het maximeren van de resterende OZB-tarieven (afschaffin gebruikersdeel OZB op woningen)

⁴ Advies Raad voor het Openbaar Bestuur en Raad voor Financiële Verhoudingen, “Autonoom of automaat” augustus 2005.

⁵
Whilst until now the owner’s tax on houses could not exceed 5/4 of the user’s tax, the abolition of this tax means a reduction of 4/9 (however as a result a bit less on account of the remaining tax on commercial buildings), and the maximisation prevents a corresponding augmentation of the owner’s tax.

⁶ The “medbewind”, see Kortmann/ Bovend’Eert, Dutch Constitutional Law, The Hague (Kluwer) 2000, p. 44 nr. 52-54. This point was underlined as well in the 1999 report, nr. 43.

⁷ Advies Stuurgroep verkenning decentraal belastinggebied (Comissie Eenhoorn), Lokale belastingen: meer, beheerst!, mei 2005.

⁸ Reference number of the report: CG/INST (11) 12 prov. – Strasbourg, 15 April 2005

⁹ The relationship with dualisation
The position of the mayor as an independent and autonomous representative of the people
The balance between the election and dismissal of the mayor
Aspects of supervision
The transition process / period

¹⁰ The Dutch government has not yet addressed a change in the position of the Queen’s Commissioner at the provincial level. However, it is clear that changing the system of appointing mayors will have an impact on the discussions about the position of the Queen’s Commissioner.

¹¹ Relevant paragraphs of Article 9 of the European Charter of Local Self-Government read as follows:
9.1 Local authorities shall be entitled, within national economic policy, to adequate financial resources of their own, of which they may dispose freely within the framework of their powers.
9.3 Part at least of the financial resources of local authorities shall derive from local taxes and charges of which, within the limits of statute, they have the power to determine the rate.
9.7 As far as possible, grants to local authorities shall not be earmarked for the financing of specific projects. The provision of grants shall not remove the basic freedom of local authorities to exercise policy discretion within their own jurisdiction.