Multi-country seminar on local self-government, “Connecting government to people”
(Brussels, 15-16 March 2011)
European Charter of Local Self-Government: application and monitoring
Speech by Lars O. Molin, President of the Monitoring Committee, Congress of Local and Regional Authorities of the Council of Europe
Mr Chairman,
Excellencies,
Ladies and Gentlemen,
It is a great pleasure for me to address you today, and I wish to thank the organisers of this seminar for giving me this opportunity. The main objective of my presentation is to explain the functioning of the system set up under the European Charter of Local Self-Government.
I refer to it as a “system” because it bears similarities to the European human rights protection system for individuals, which is centred on the European Convention on Human Rights. This system is well known. It is underpinned by the European Court of Human Rights in Strasbourg.
The European Charter of Local Self-Government is often compared to the Human Rights Convention. However, the Charter guarantees protection of the rights of local communities and their authorities, not individual citizens. The Charter also stipulates that this protection can be extended to regional authorities in the countries where regional structures exist.
As the Charter today has been ratified by 44 countries out of the 47 member states of the Council of Europe, its protection system spans almost the entire European continent. We hope that the three countries not yet included – Andorra, Monaco and San Marino – will join this system soon. As a first step, Andorra has already signed the Charter, in October last year.
As I have just said, the European Court of Human Rights ensures the guarantees of individual rights under the Convention. The Congress of Local and Regional Authorities of the Council of Europe plays a similar role in respect of the European Charter of Local Self-Government, as the guardian of its principles. The Congress makes sure that these principles are fully respected in each member state, and reacts to its violations. To accomplish this mission, we have to assess regularly national situations of local and regional self-government.
This assessment process is known as “monitoring” and includes a number of tools which I will describe later. Because of this monitoring role, the Council of Europe Congress is often referred to as the watchdog of local and regional democracy in Europe. Within the Congress, this task is carried out by the Monitoring Committee, which I chair since last October. I would like to add that Congress recommendations for improving national situations of local and regional self-government have an added political weight as they are addressed directly to national governments. National governments are obliged to respond to Congress recommendations.
Taken together, these different elements represent what I would call the “system of the European Charter of Local Self-Government” that I mentioned at the beginning of my intervention.
European Union and Council of Europe
But before I go into detail about the functioning of the system, allow me to clarify briefly the main differences between the European Union and the Council of Europe as a whole. Similarities in the structures of these two institutions often lead to confusion.
Apart from the evident difference in their scope – the EU has 27 member states, the Council of Europe 47 – there is also a difference in their mission. The EU essentially grew out of the need for economic integration, and today pursues political integration based on economic and social objectives, whereas the Council of Europe, which was founded already in 1949, is essentially concerned with democracy-building and human rights protection. The European Court of Human Rights, which I have already mentioned, is part of the Council of Europe.
Both EU and the Council of Europe have assemblies of local and regional authorities: the EU has the Committee of the Regions, and the Council of Europe has the Congress. The difference is that the Committee of the Regions gives recommendations to EU bodies, whereas the Congress does so directly to national governments of the 47 countries.
European Charter of Local Self-Government: principles and provisions
Ladies and Gentlemen,
I would like now to focus in greater detail on the application of the European Charter of Local Self-Government, and on the monitoring of its implementation.
The European Charter of Local Self-Government was opened for signature on 15 October 1985, and entered into force on 1 September 1988. To date, it has been ratified by 44 European countries, and signed by one other. In November 2009, an additional Protocol to the Charter was also opened for signature. The Protocol provides additional guaranteed to the right of citizens to participate in the affairs of a local authority – the right to democratic participation at local level.
The Charter is the first binding treaty for local democracy on the international scene. It establishes the principles of local self-government and lays down the rights of local authorities. Over the years, the Charter has become the main reference point and a benchmark convention in this area. The Charter is considered as a key convention of the Council of Europe, which was mandatory for ratification by all new member states during the Council of Europe enlargement. One of the main principles of the Charter – the principle of subsidiarity – has also been recognised by the European Union and included in the European Constitutional Treaty.
So, what are the most direct implications of the Charter?
Essentially, the Charter affirms the role of communities as the first level for practising democracy. It has established, for the first time in history, that citizens have a right to manage themselves a substantial part of their public affairs. The Charter requires that this right of citizens to local self-government be embedded in domestic law or in the Constitution in order to guarantee its effective implementation.
As part of its monitoring action, the Congress is currently preparing a report on the reception of the Charter by domestic legal systems. The objective is to look to what extent the principles of local self-government are integrated within domestic law of member states.
Secondly, the Charter lays down the principles of the democratic functioning of communities. It stipulates that local governing bodies must be democratically elected, must have their own administrations and financial autonomy, and must be able to exercise their duties without interference from any other authority, national or regional.
The Charter guarantees the conditions of office of local elected representatives, their ability to exercise their functions freely, and their right to form associations. It establishes a number of safeguards to protect the rights of local communities, such as:
- local boundaries cannot be changed without community agreement;
- the supervision of local authorities’ activities must be defined by law and address only the legality of local action, not the expediency of local decisions;
- local authorities must be consulted on all matters affecting them;
- and they must have the possibility of judicial recourse to defend their interests and protect their rights.
Most importantly, the Charter is the first treaty to establish that the responsibility for public services should be transferred to the level where these services can be delivered most efficiently. This principle, known as the principle of subsidiarity, entails the transfer of competences from the top down, from the national level to regional and local authorities. Thus it allows for the decentralisation of power towards the level closest to the citizen. In the context of the European Union, the principle of subsidiarity is applied in the delimitation of competences and deciding whether action should be taken at European, national or subnational level, from the viewpoint of its effectiveness and efficiency.
The Charter also stipulates that local authorities must have their own financial resources, sufficient to fulfill their duties. Local financing must be a matter of national policy, and the government must guarantee this principle of financial autonomy, either through transfers from national funds or by allowing local authorities to raise taxes. Local authorities must be allowed to borrow from domestic markets, and the government must also help weaker communities through equalisation schemes. Finally, this principle means that the transfer of competences from a higher level must be accompanied by the transfer of matching financial means, necessary to carry out the tasks. This is a guarantee against the so-called unfunded mandates.
Ladies and Gentlemen,
This is, briefly, an outline of the principles laid down in the Charter of Local Self-Government. I should add that on 16 November 2009, an Additional Protocol was adopted to supplement the text of the Charter. It relates to the right to participate in local authorities’ affairs.
We are convinced that increasing citizen participation is an imperative of democracy today. We are witnessing a growing feeling of disillusionment and exclusion among our citizens, loss of their trust in politicians and a lack of confidence in democratic processes. This gap between democratic institutions and the population reflects a crisis of democracy. The situation calls for introducing elements of direct democracy into the traditional representative system, which necessitates greater citizen participation.
Citizens' right to participate in the conduct of public affairs is a democratic principle enshrined in the Preamble to the Charter. The Additional Protocol details this right as the right to seek to influence the exercise of a local authority's powers and responsibilities. Its purpose is to bring within the scope of the Charter the right of any person to participate in the affairs of a local authority.
Mechanism of the Charter’s implementation
Let me now turn to the mechanism of the Charter’s implementation.
This implementation is ensured, first and foremost, by the fact that the countries which have ratified the Charter are bound by its provisions. The Charter requires compliance with a minimum number of principles that form a European foundation of local democracy. States undertake to respect this core of basic principles to which no reservation is possible, such as:
- the right of citizens to participate in managing public affairs;
- the key rights of communities to enjoy autonomy and self-government, elect their local bodies and to have their own competences, administrative structures and financial resources;
- or the right to judicial recourse in case of interference from other levels.
Through these core principles, the Charter seeks to ensure the compatibility of the diverse structures of local communities in the Council of Europe member states. The Congress of Local and Regional Authorities makes sure that these principles are observed. The Congress is mandated to do so by the virtue of its Charter, which was adopted by the Committee of Ministers of the Council of Europe in 1994 and revised most recently this last January. Thus we have a direct mandate from national governments to ensure that the Charter is implemented in their territories. This is our unique task in the European political landscape, and our core mission.
However, beyond the minimum core of basic principles, states are allowed to make reservations to the Charter when ratifying it. Today, these reservations represent an obstacle to the harmonious application of the Charter’s principles. This prevents us from being able to create a common legal space, in which common legal standards of the Charter could be applied across the whole European continent. For this reason, the Congress has now made one of its priorities to have these reservations lifted. We will be analysing the grounds for such reservations in the first place, and to work on changing the circumstances that were used as justification.
This process will be part of our regular monitoring activities, which include today a range of tools, such as:
- regular country-by-country monitoring;
- observation of local and regional elections;
- and fact-finding missions to respond to situation of alleged violations of the Charter.
The Congress has been carrying out regular monitoring since 1995. We have fielded some 100 monitoring missions and produced some 50 reports with recommendations to national governments. In June last year, we revised our rules of procedure for monitoring. Our aim is to make this exercise more regular, more objective and transparent, and more geared towards an effective follow-up and assistance to the authorities of the country.
As part of its current reform, the Congress is now set to expand this activity and establish the pace of monitoring each country at least once every five years. Moreover, we intend to organise targeted post-monitoring assistance programmes. These programmes would address the issues of major concern and specific shortcomings, and which would involve both national and territorial authorities.
As a result of this new approach, the Congress carried out 13 monitoring missions in 2010, compared to five missions in 2009. This year, twelve countries will be visited under the monitoring procedure. The objective of these missions is not only to pinpoint problems and shortcomings. It is also to assist the countries concerned in improving governance, the legal and political environment and multi-level governance, to mention a few.
Today, monitoring involves regular visits to the country, by our rapporteurs and members of the group of independent experts on the Local Self-Government Charter. During these visits, the Congress delegation meets a wide range of interlocutors at the highest level.
These include:
- government ministers responsible for local and regional authorities;
- members of national and regional parliaments responsible for territorial issues and financing;
- local and regional elected representatives – mayors, governors, municipal and regional councillors, as well as their associations;
- the President of the Constitutional Court, as well as national, regional and local ombudsmen;
- finally, expert specialists and representatives of civil society, including NGOs and trade unions.
The Congress then debates, in plenary sessions, reports prepared as a result of these visits. It adopts recommendations highlighting the shortcomings and proposing measures to improve the situation. These recommendations are transmitted to national governments through the Committee of Ministers. The governments are then invited to report to the Congress on the implementation of the recommendation. This usually takes the form of an exchange of views between government officials and Congress members during subsequent plenary sessions.
However, the most substantial follow-up is achieved by checking the situation through follow-up visits and further monitoring reports. This is why the Congress has been in direct contact with national authorities and is holding regular discussions with them. This helped us to influence the shaping of national legislation and administrative practice, and to elaborate tools to complement the existing legal framework.
Needless to say, the Congress has accumulated substantial experience which allows us, on the one hand, to take into account the diversity of methods and practices in implementing the Charter. On the other hand, this experience enables us to recommend optimal solutions and good practices suitable to the specific national settings. These could include, for instance, necessary legislation and improvements to the legal framework, local financing schemes or ways to increase citizen participation.
This experience also enables us to provide advice to our institutional partners within and outside the Council of Europe. For example, Congress monitoring rapporteurs met in September last year with rapporteurs on Eastern Partnership countries of the EU Committee of the Regions to “compare notes”. This practice is now also being extended to Committee rapporteurs on the EU enlargement.
At the same time, our monitoring experience shows that local self-government in many member states is still fragile, characterised by a rather weak legislative framework and rather arbitrary administrative practices. If we are to draw lessons from this experience, I would emphasise four major points.
First, there must be a clear delimitation of competences for each level of government set in law. Local and regional authorities must have fixed responsibilities and tasks and must be clear about shared responsibilities, which is not always the case.
Secondly, adequate local and regional financing must be ensured to match these responsibilities, as the insufficiency of funds for territorial authorities is a major shortcoming across Europe.
Thirdly, we need practical measures to guarantee genuine independence of local and regional authorities and non-interference in their decision-making from higher levels. This point is closely linked to the first two: you cannot ensure genuine autonomy when local authorities depend on higher levels for competences, money and decision-making authority.
Finally, we must provide a framework for greater citizen participation and innovation at local and regional level. For reasons I have already mentioned, I am convinced that this is one of the main future prospects for local democracy. In this regard, I should point out an initiative of the Congress, the European Local Democracy Week, which is proving to be an excellent tool for involving citizens and having them enter into dialogue with their local authorities.
New priorities of the Congress
Ladies and Gentlemen,
As part of new political priorities of the Congress, we have decided to put a greater emphasis on the local and regional dimension of human rights. We are convinced that local and regional authorities are playing a key role in providing access to human rights and ensuring their exercise – from housing to health care to schooling and even higher education in certain regions. However, many of them are not aware of their important contribution.
This is why the Congress will now include a human rights element in its activities when visiting countries. The aim is to promote the local and regional dimension of human rights and to raise awareness of local and regional authorities of their role in human rights implementation. It is encouraging that many municipalities today have joined an initiative called human rights cities. Many cities - like Paris and others - have appointed deputy mayors responsible for the protection and promotion of human rights and/or established local ombudsmen. In the long run, a better exercise of individual rights in our communities means fewer possible violations and less recourse to the European Court of Human Rights, which is fully in the spirit of the Interlaken process.
We therefore recommended setting up appropriate structures and developing procedures at local and regional level to improve human rights situations, in particular in providing public services. We also need to provide the necessary budgeting and training for human rights implementation, establish independent complaints mechanisms at local level, and enforce guarantees of equal access to public services, and a system of their quality control.
However, we should begin by elaborating indicators to gauge the fulfilment of human rights. We must of course know what we are planning to evaluate – mostly social and economic rights, such as housing, health care, education and employment, but also some cultural and even civil and political rights which are within the competence of local and regional authorities – for example, freedom of expression and freedom of assembly.
The Congress is currently preparing a report on human rights indicators, which is a follow-up to its earlier report on human rights implementation at local and regional level. I have the honour to be the author of both these reports. In this regard, I would like to stress that the monitoring process, which I have just described, represents the best tool for human rights promotion in our communities. Through our country visits, we can pinpoint and examine the problem first-hand in the very community where it exists. At the same time, we can see on the ground the best practices in trying to solve this problem. Country visits also give us an opportunity to enter into a dialogue with all the relevant stakeholders that may have concrete proposals and possible solutions, knowing best the needs of their communities. In the long run, this will also help us to develop country-specific and targeted indicators for human rights implementation.
Thank you for your attention.