Rapporteurs:
Hans Ulrich STÖCKLING, Switzerland, Chamber of Regions, Political Group: ILDG
Jan MANS, Netherlands, Chamber of Local Authorities, Political Group: SOC
Carlo ANDREOTTI, Italy, Chamber of Regions, Political Group: EPP/CD

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EXPLANATORY MEMORANDUM

I. INTRODUCTION

1. This report was produced as a result of co-operation between the Institutional Committee of the Congress and the Commission for Constitutional Affairs and European Governance of the Committee of the Regions (CONST).

This co-operation, which was launched in 1998 by the Congress working group responsible for monitoring the implementation of the European Charter of Local Self-Government¹, continued in 1999 at the international conference which the Congress held in Ancona on the theme of subsidiarity².

On the basis of the final declaration made at the conference – in light, inter alia, of the contribution from Mr Jos Chabert, the then President of the Institutional Affairs Commission of the Committee of the Regions – the Congress adopted Resolution 97 (2000) referring, for the first time, to the introduction of a system of European legal safeguards for local and regional democracy³.

Still in the context of this co-operation, in the years that followed the Committee of the Regions adopted an opinion specifically concerning the draft European Charter of Regional Self-Government⁴. Several other official texts of the Committee of the Regions expressly mentioned the European Charter of Local Self-Government and called in particular for “the new constitutional framework of the European Union to incorporate the European Charter of Local Self-Government as part of the acquis communautaire”⁵.

2. Further to this multiple interaction, the joint meeting of the Institutional Committee and the Commission for Constitutional Affairs and European Governance, the occasion that prompted this report, is an important step forward in this co-operation. In holding this meeting on 21 September 2004 in Prague, a symbolic city in the European integration process, the Congress and the Committee of the Regions wanted to get together to celebrate the 10^th anniversary of the creation of the CoR and of the establishment of the Congress in its current institutional shape⁶. 

In light of the Council of Europe and European Union treaty provisions concerning subsidiarity and self-government (whether in force, adopted or still being discussed), this meeting was organised to allow the two bodies to take stock of their respective responsibilities in monitoring respect for the fundamental rights of local and regional authorities in Council of Europe member States and in the European Union decision-making process.

These discussions may in future lead to improved co-ordination of the exercise of these responsibilities, the pooling of efforts and new scope for co-operation, while making optimum use of the legal and administrative resources available and thus helping the Congress and the Committee of the Regions to achieve their political objectives in the institutional field.

3. In the light of the foregoing, it also seems worth pointing out that this report:

a) supplements the report drawn up by the Chairman of the Commission for Constitutional Affairs and European Governance of the European Union Committee of the Regions, Mr Franz Schausberger⁷, for the above-mentioned joint meeting, concerning legal guarantees of local and regional self-government and subsidiarity in the new EU Treaty establishing a Constitution for Europe⁸;

b) accordingly, contains a substantial section analysing the main safeguards in the European Charter of Local Self-Government and examining the progress of work on the Council of Europe Convention on Regional Self-Government (which is still in draft form);

c) briefly reviews the political and institutional policies that led to the adoption or proposal of the above mentioned safeguards and describes the key principles that they are designed to uphold;

d) concludes with specific proposals for enhancing all these legal safeguards and giving the Congress and the Committee of the Regions greater monitoring responsibilities in this area.

II. THE DECENTRALISATION PROCESS IN EUROPE: BASIS AND JUSTIFICATION FOR LOCAL AND REGIONAL SELF-GOVERNMENT

4. In recent decades the European integration process and the fact that governments were unable, at national level, to effectively meet the requirements of an increasingly complex and pluralist society forced the authorities in most European countries to rethink the division of powers between their various public institutions.

1. The furthering of local and regional democracy within individual countries

5. At national level, the excessive accumulation of responsibilities due to the development of the welfare state and, in certain cases, the centralisation of power called for by government departments, in an attempt to improve managerial efficiency, gradually undermined the effectiveness of government measures and brought about a feeling that there was a growing gulf between the government and the public. The widespread reintroduction of liberal policies as from the late 1990s in several European countries also seems to reflect a demand for a reduction in central authority, if not a devolution of power to the local and regional authorities.

6. This situation has arisen not only in western countries but also in the countries of central and eastern Europe, where the return to democracy threw up problems connected with the internal reorganisation of the State on the basis of institutions that respected human rights, a prerequisite for membership of European organisations.

7. These sentiments and demands prompted most European governments to embark on often radical reforms of their administrative systems, sometimes in conjunction with a general reorganisation of territorial boundaries designed to decentralise public-sector responsibilities and strengthen local and regional democracy.

8. In most cases, these reforms were inspired by, or designed to comply with, the principles set out by the Council of Europe in the 1985 in the European Charter of Local Self-Government – the first international legal instrument giving a definition of the principle of subsidiarity - and the draft Convention on Regional Self-Government, approved by the Congress in Charter form in 1997. Part III of this report is given over entirely to these legal instruments.

2. The growing impact on local and regional authorities of decisions by the European Union institutions

9. The gradual transfer of substantial powers from States to the European Union institutions (in the case of EU members) also raised the problem of the sharing power between the EU and the central authorities of its member States and then between the EU and those States’ local and regional authorities (at least in fields for which the EU does not have exclusive responsibility).

10. This problem was debated at intergovernmental conferences of EU member States throughout the 1990s. The 1992 Treaty of Maastricht (Article 3 B) and the Protocol on the application of the principles of subsidiarity and proportionality in connection with the 1997 Treaty of Amsterdam went some way towards providing solutions, but they did not meet the expectations of local and regional authorities in the countries concerned.

11. On the basis of the proposals put forward by the Committee of the Regions and the European Convention⁹, the recently adopted Treaty establishing a Constitution for Europe finally laid the foundations for proper protection for fundamental rights of local and regional authorities by the European Union institutions. This important achievement, which is spelled out in the provisions of the Protocol on the application of the principles of subsidiarity and proportionality, is amply described in the report by Mr Franz Schausberger mentioned in the introduction to this report. General information on the subject is also to be found at the end of the next section.

3. Guiding principles of decentralisation in Europe: subsidiarity, self-government and legal safeguards to defend these principles Europe-wide

12. The decentralisation process that has taken hold, albeit in different ways, in individual countries and the European Union is based on the well-known principle of subsidiarity, which emerged as the only means of ensuring both that public authority was efficiently exercised and that democracy was respected.

13. This principle was thus an incentive to review, in the interests of more effective democracy, the distribution of powers and responsibilities at all levels of government in light of two key ideas:

a. the rule of the distribution of powers, which is designed to entrust to the lowest level what can be better done there than at the level immediately above, and

b. the political principle whereby powers should be exercised as close as possible to the citizen.

14. The introduction of the principle of subsidiarity at both European and national level, as a political principle by which governments were to abide, prompted institutional recognition of local and regional self-government, whereby power is exercised by a local or regional authority for the benefit of the citizens for which it is responsible.

15. The concept of self-government is thus a fundamental corollary of the principle of subsidiarity. Self-Government appears to be an inevitable consequence of the application of the principle of subsidiarity, insofar as, if a power is attributed to the tier of government closest to the citizen, it must be exercised fully, ie without intervention from a higher tier of government in respect of its implementation.

16. The transfer of public-sector responsibilities to local and regional authorities, which is usually based on national constitutional and/or legislative provisions, presupposes that, in practice, those authorities enjoy the political, administrative and financial independence that they need to exercise them.

17. Despite the existence of such legal safeguards at national level, local and regional self-government is not, in practice, a fait accompli. Unless there is a constant concern to ensure, by means of dialogue between the institutions, that powers continue to be properly apportioned, some of those powers, will, sooner or later, be centralised again. It can therefore be concluded that decentralisation is an ongoing process and not an end in itself.

18. Moreover, in view of the growing transfer of powers to the European Union, the potential threats to the exercise of local and regional authority rights no longer derive solely from the conduct of the central authorities of the state concerned but also, increasingly, from decisions taken by the European Union institutions.

19. These developments clearly show that the legal safeguards for subsidiarity and local and regional self-government set out in the various States’ legislation and constitutions are not sufficient. Hence the importance of establishing legal safeguards at European level.

20. At this stage, these safeguards comprise:

a. in respect of the Council of Europe: the provisions of the European Charter of Local Self-Government, an international convention setting out the fundamental rights of local authorities in their respective countries. The convention was adopted by the Committee of Ministers of the Council of Europe on 15 October 1985 and came into force on 1 September 1988. To date it has been ratified by 39 Council of Europe member States, including 24 members of the European Union. France, the only EU state that has not yet definitively accepted the convention has, after signing it, set in motion the procedure for its ratification. (A full table of signatures and ratifications appears in Appendix)

b. in respect of the European Union: a number of provisions of the Treaty establishing a Constitution for Europe enshrining local and regional self-government as constitutional principles of the EU and, for the first time, recognising that the principle of subsidiarity should be taken into account below State level¹⁰.

In particular,

- Article 5, paragraph 1, of the above-mentioned treaty states: “The Union shall respect the national identities of the member States, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including those for ensuring the territorial integrity of the State, and for maintaining law and order and safeguarding internal security”;

- Article 9, paragraph 3, of the treaty states: “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence the Union shall act only if and insofar as the objectives of the intended action cannot be sufficiently achieved by the member States, either at central level or regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level”.

These articles have been incorporated in the Protocol on the application of the principles of subsidiarity and proportionality.

All these provisions need to be supplemented by the adoption of the new Council of Europe Convention on Regional Self-Government, which is still under discussion. The progress of work on the adoption of the convention by the Committee of Ministers of the Council of Europe is described in Part III.2 of this report.

III. THE COUNCIL OF EUROPE CONVENTIONS: INTERNATIONAL SAFEGUARDS ENSURING COMPLIANCE WITH THE KEY PRINCIPLES OF LOCAL AND REGIONAL DEMOCRACY IN MEMBER STATES

1. European Charter of Local Self-Government

21. Article 4, paragraph 3, of the European Charter of Local Self-Government (referred to below as the ECLSG), although it does not refer to the principle of subsidiarity by name, sets out the principle as follows: “Public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen. Allocation of responsibility to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy.”

This provision is supplemented by other paragraphs of Article 4, which state that:

a. “The basic powers and responsibilities of local authorities shall be prescribed by the constitution or by statute […]” (paragraph 1);

b. “Local authorities shall, within the limits of the law, have full discretion to exercise their initiative with regard to any matter which is not excluded from their competence nor assigned to any other authority” (general competence clause, paragraph 2);

c. “Powers given to local authorities shall normally be full and exclusive. They may not be undermined or limited by another, central or regional, authority except as provided for by law” (paragraph 4);

d. “Where powers are delegated to them by a central or regional authority, local authorities shall, insofar as possible, be allowed discretion in adapting their exercise to local conditions” (paragraph 5).

22. As already pointed out in Part II, section 3, above, the principle of subsidiarity in respect of the apportionment of powers has inherent corollaries, the main one being the concept of self-government. The ECLSG defines self-government in Article 3 as “the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population”.

23. Thus conceived, the concept of self-government has five consequences, which can be formulated as five principles:

a. the right of local authorities to have resources commensurate with their responsibilities;
b. the right to organise themselves as they see fit;
c. the right of association;
d. the right to be consulted/to participate;
e. the right to legal protection and to supervision that is compatible with the concept of self-government.

24. Efficiency through the allocation of commensurate resources. The first principle is that, in order to be effective, self-government must imply a duty on the part of central government to provide local authorities with the means of taking action and shouldering their responsibilities. This duty on the part of the State is matched by a right on the part of local authorities. These means are of different kinds.

25. Staff and conditions of office of local and regional elected representatives. Above all, local authorities must have high-quality staff, recruited on the basis of merit and competence and enjoying adequate training opportunities, remuneration and career prospects (Article 6, paragraph 2, of the ECLSG).

26. Conditions of office of local and regional elected representatives. Secondly, the conditions of office of local elected representatives must be such as to provide for the free exercise of their functions (Article 7, paragraph 1, of the ECLSG).

27. Financial resources. Thirdly, local authorities must be entitled, within national economic policy, to adequate financial resources of their own, commensurate with their responsibilities, of which they may dispose freely in the exercise of their responsibilities (Article 9, paragraphs 1 and 2, of the ECLSG). It is difficult in practice to determine what constitutes “commensurate” resources, but the ECLSG provides guidelines.

28. Part of the resources of local authorities must be own resources derived essentially from taxes and charges of which, within the limits of statute, they have the power to determine the rate. This requirement is in keeping with the principle of local authority accountability (Article 9, paragraph 3, of the Charter).

29. The rest of their resources must be provided in the form of transfers and grants. This requirement is justified by the fact that, firstly, local authorities’ own resources are not generally sufficient to allow them to exercise their responsibilities and, secondly, financial equalisation is necessary between rich and poor authorities by virtue of the principle of solidarity inherent in the principle of subsidiarity. As far as possible, these resources should not be earmarked for specific projects, so as not to undermine the basic freedom of local authorities to exercise policy discretion or their accountability to their electorate (Article 9, paragraph 7, of the ECLSG).

30. All local authority resources must be foreseeable and of a sufficiently diversified and buoyant nature to enable them to keep pace as far as practically possible with the real evolution of the cost of carrying out their tasks (Article 9, paragraph 4, of the ECLSG).

31. Local authorities must, within the limits of the law, have access to the capital market for the purpose of borrowing for capital investment (Article 9, paragraph 8, of the ECLSG).

32. Right to organise themselves as they see fit. The second principle is the right of local authorities to organise themselves as they wish. They must, as far as possible, be able to determine their own internal administrative structures in order to adapt them to local needs and ensure effective management (Article 6, paragraph 1, of the ECLSG). The only restriction on this freedom is the requirement that there be a council or assembly, composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and an executive organ that is responsible to the elected council or directly elected by the population (Article 3, paragraph 2, of the ECLSG).

33. Right of association. The third principle is local authorities’ right to associate both within a country, the better to carry out tasks of common interest and protect their collective interests, and internationally in order to help promote international co-operation (Article 10 of the Charter). One aspect of this right to associate is transfrontier co-operation (between neighbouring authorities) and inter-territorial co-operation (between authorities that are not geographically adjacent)¹¹.

34. Article 10, paragraph 3, of the Charter merely states that “[l]ocal authorities shall be entitled, under such conditions as may be provided for by the law, to co-operate with their counterparts in other States”. All these provisions should be interpreted as affirming the principle that the right to conclude transfrontier or inter-territorial co-operation agreements derives from the very principle of self-government, although domestic law may lay down conditions applicable to the exercise of that right.

35. Right to be consulted/to participate. The fourth principle deriving from the concept of self-government is the right of local authorities to be consulted, insofar as possible, in due time and in an appropriate way in the planning and decision-making processes for all matters which concern them directly (Article 4, paragraph 6, of the ECLSG).

36. Right to legal protection and to supervision that is compatible with the concept of self-government. The fifth and last principle concerns the legal protection of self-government and the supervision of local authority decisions and activities that is allowed. The concept of self-government, which entails the exercise of local authorities’ own or shared responsibilities, may give rise to disputes and interpretation difficulties. The ECLSG requires that local authorities have the right of recourse to a judicial remedy when the principle of self-government is undermined or when there are conflicts of responsibility between different tiers of government or between authorities at the same level (Article 11 of the ECLSG).

37. Local authority boundaries are also protected and no changes may be made without prior consultation of the local communities concerned, possibly by means of a referendum (Article 5 of the ECLSG).

38. Supervision of local authority activities must be confined to ensuring compliance with the law. Any supervision of expediency is incompatible with the concept of self-government, which entails, in particular, democratic accountability. In the case of delegated tasks, however, provision may be made for an assessment of expediency (Article 8 of the ECLSG). Since the ECLSG talks solely of the supervision of activities, it must be concluded that administrative supervision of organs or individuals should not be allowed.

39. Before this section is concluded, it is important to point out that Article 13 of the ECLSG (Authorities to which the Charter applies) states, with reference to the rights of Contracting Parties, that each Party “may […] include further categories of local or regional authorities within the scope of the Charter […]”. In other words, this means that the ECLSG may apply to regional institutions. This point is dealt with in the following section, which concerns the draft Convention on Regional Self-Government, for it is likely to play an important part in intergovernmental discussions on the adoption of the convention.

2. Draft Convention on Regional Self-Government: state of progress

40. On 5 June 1997 the Congress suggested that the Committee of Ministers of the Council of Europe adopt a European Charter of Regional Self-Government supplementing the principles applicable to the self-government of all authorities below State level¹². In response to this proposal, the Committee of Ministers referred the matter to the intergovernmental committee assisting it on technical matters connected with local and regional democracy (the Steering Committee on Local and Regional Democracy - CDLR). On the basis of the guidelines provided by the Committee of Ministers between 1998 and 2001, the CDLR has:

a. produced a clear, precise definition of the various forms of regional self-government identified in Council of Europe member States, which makes it possible to distinguish six standard models;

b. highlighted the key features of a legal instrument, grouped into 16 modules;

c. established six models for regional self-government, depending on the degree of self-government. This means there is complete openness as regards the implementation, legal nature, extent, scope and effects of regional self-government.

41. In March 2002 the Committee of Ministers took the view that the CDLR’s work deserved to be examined by the European Conference of Ministers responsible for Local and Regional Government. At their 13th conference (Helsinki, 27 and 28 June 2002), which was given over entirely to the theme of regional self-government, the Ministers adopted a final declaration¹³ approving guiding principles and making a number of points connected with the importance and effectiveness of regional self-government. The declaration lists the issues that need to be dealt with in any legal instrument on regional self-government if it is to be accepted by member States.

42. In response to the Committee of Ministers’ question concerning the nature of the instrument, the Ministers declared that the Council of Europe should aim to adopt a legal instrument on regional self-government that:

a. was based on the core concept and principles already drawn up by the CDLR;

b. expressly stipulated that every State had the right to establish regional authorities or not;

c. provided member States with a degree of choice in order to take account of specific characteristics of their regional self-government system;

d. ensured a harmonious co-existence with the European Charter of Local Self-Government.

43. In particular, paragraph 21 of the Final Declaration recommended that the Committee of Ministers give terms of reference to the CDLR to prepare draft legal instruments of different types, with due regard for the proposals made by member States and their ongoing experiences, which met the need for an appropriate relationship with the European Charter of Local Self-Government.

44. Accordingly, at its 33rd meeting (Strasbourg, 17-19 May 2004), the CDLR approved a draft Convention on Regional Self-Government and a draft recommendation of the Committee of Ministers of the Council of Europe on regional self-government and forwarded them to the Committee of Ministers, together with an activity report. The Committee of Ministers was invited to examine these drafts at its 895th meeting (Strasbourg, 15 September 2004).

45. In its Resolution 186(2004) the Congress congratulated the CDLR on having succeeded in preparing a draft Convention on Regional Self-Government that:

a. was based on the care concept and principles already drawn up by the CDLR, in the light of the draft Charter approved by the Congress in 1997;

b. explicitly stipulated that every state had the right to establish regional authorities or not;

c. provided for a “menu” formula, which, under certain conditions, would allow Contracting States to decide to ratify only those provisions which they considered most compatible with their legal system and their system of local and regional government;

d. contained a preliminary provision giving States the possibility of choosing to be bound, with regard to their regional authorities, only by the general principles of the convention and otherwise confining themselves to the legal guarantees contained in the European Charter of Local Self-Government.

46. With regard, in particular, to the relationship between the draft Convention on Regional Self-Government and the European Charter of Regional Self-Government, the Congress took the view that, in accordance with the proposals already put forward in its Resolution 161(2003), consideration could also be given to a solution whereby States would have alternative options for their regional institutions, namely:

a. ratification of the European Charter of Local Self-Government (under Article 13) or;

b. ratification of the Convention on Regional Self-Government or;

c. ratification of the European Charter of Local Self-Government for certain regions and ratification of the Convention on Regional Self-Government for others, according to their specific status; if appropriate, certain other regions could be excluded from the scope of both instruments.

47. In light of these additional proposals, the Congress expressed the conviction that the draft convention approved by the CDLR could constitute a legal compromise facilitating acceptance of a Council of Europe Convention on Regional Self-Government alongside the European Charter of Local Self-Government already in force.

48. The Congress also wished to point out, in this connection, that an international convention was a legal instrument that was binding only on those States that had accepted it and that - by virtue of its legal nature - States remained absolutely free to sign and ratify a convention or not. Accordingly, those States that were still opposed to a Convention on Regional Self-Government should not object to the adoption of such an instrument by the Committee of Ministers; while they had the right to express their misgivings, the States that were still against such an instrument should, in a European spirit, refrain from using their opposition to prevent those States that had already expressed their provisional approval from having such a convention at their disposal.

49. The legal solutions proposed as a means of making the convention more flexible and strengthening the right of each State not to sign and ratify it should ultimately enable all the Council of Europe member States to accept this new international legal instrument.

50. In light of the foregoing, the Congress, in its Recommendation 156(2004), invited the Committee of Ministers to examine the draft Council of Europe Convention on Regional Self-Government drawn up by the CDLR with a view to submitting it for an opinion to:

a. one of the forthcoming Conferences of European Ministers responsible for Local and Regional Government¹⁴ and

b. the 3rd Summit of Heads of State and Government of the Council of Europe (Warsaw, Poland, 16 and 17 May 2005).

51. It also invited the governments of Council of Europe member States to examine the draft Council of Europe Convention on Regional Self-Government drawn up by the CDLR with a view to approving it, if appropriate, at the above-mentioned conference and/or Summit, so that it could be rapidly and definitively adopted by the Committee of Ministers.

52. It is to be hoped that these proposals will make it easier to obtain the desired result, for it is already deeply regrettable that European regions, where they exist, should not yet have Europe-wide specific legal safeguards for their fundamental rights, as local authorities do.

IV. THE MONITORING RESPONSIBILITIES OF THE CONGRESS OF LOCAL AND REGIONAL AUTHORITIES OF THE COUNCIL OF EUROPE AND THE COMMITTEE OF THE REGIONS OF THE EUROPEAN UNION

53. Given the political importance of the legal instruments described in the preceding sections, the Congress and the Committee of the Regions have been entrusted with substantial responsibility for ensuring respect for the principles of subsidiarity and local and regional self-government in Council of Europe member States and by the European Union’s decision-making bodies.

54. The Congress’s statutory responsibilities in this field:

a. concern relations between central authorities and local and regional authorities in the Council of Europe member States;

b. are based on Statutory Resolution (2000)1 of the Committee of Ministers of the Council of Europe, which states that the Congress shall ensure that the principles of the European Charter of Local Self-Government are implemented in member States¹⁵;

c. are exercised by the Institutional Committee of the Congress, with the help of the Group of Independent Experts on the European Charter of Local Self-Government, and take the form in particular of the preparation of:

- country-by-country reports on the situation of local and regional democracy in Council of Europe member States;

- general reports on the implementation of specific provisions of the ECLSG in all the countries that have acceded to it.

(A full list of these reports is contained in Congress document CG/INST (11) 1)

55. The responsibilities of the Committee of the Regions in this field:

a. concern in particular relations between the European Union institutions with legislative power and local and regional authorities in the EU member States;

b. are based on the provisions of the above-mentioned Treaty establishing a Constitution for Europe, with particular reference to:

- the stage at which EU legislation is drafted and proposed in the fields in which it is obligatory to consult the Committee of the Regions so that it can help to assess the impact of legislation in terms of regulations to be introduced at local and regional level and its financial impact if any;

- the right of the Committee of the Regions to apply to the Court of Justice in the event of a violation of the principle of subsidiarity¹⁶.

56. Even though the Treaty establishing a Constitution for Europe does not empower the Committee of the Regions to intervene in the early-warning system when EU legislation is being drafted, the system does have implications for the Committee of the Regions, insofar as it will directly affect the decision-making process and relations between institutions and hence the progress of consultations involving the Committee of the Regions.

57. As described above, the responsibilities of the Congress and the Committee of the Regions in this area fully complement one another and entitle these European bodies to monitor, albeit only partially as yet, compliance with the key principles relating to local and regional self-government by the European Union institutions and the central authorities of the 46 Council of Europe member States.

V. CO-ORDINATION AND ENHANCEMENT OF EUROPEAN LEGAL SAFEGUARDS FOR LOCAL AND REGIONAL SELF-GOVERNMENT AND THE RELATED RESPONSIBILITIES OF THE CONGRESS AND THE COMMITTEE OF THE REGIONS

58. The provisions of the Treaty establishing a Constitution for Europe concerning local and regional self-government and the principles of subsidiarity and proportionality, on the one hand, and the provisions of the European Charter of Local Self-Government, on the other, already constitute, in practice, a European system of legal safeguards designed to ensure compliance with the key principles of local and regional self-government in Europe.

59. As already pointed out in the introduction, this institutional set-up has its origins in the line taken by the Congress in its Resolution 97(2000), in which it:

a. stressed the need for the European Union to apply the principles of subsidiarity, not only in its relations with its member States, but also with regard to local and regional authorities, in particular when adopting legal measures regulating matters within their sphere of competence;

b. welcomed the fact that the Committee of the Regions had intensified its efforts in pressing for a revision of the Treaty on European Union at the forthcoming intergovernmental conference on the Union, in order to extend the scope of the principle of subsidiarity to local and regional authorities, having regard to the principles set forth in the European Charter of Local Self-Government and, possibly, in the near future, the European Charter of Regional Self-Government;

c. considered that the systems that would then be in place, within the Council of Europe and the European Union respectively, would provide a European system of legal and political safeguards for local and regional self-government in the Europe of the new millennium.

60. Clearly, one condition that is just as essential if this system is to be fully operational is the entry into force of the EU Treaty establishing a Constitution for Europe and the adoption and entry into force of the Council of Europe Convention on Regional Self-Government.

VI. FINAL PROPOSALS AND CONCLUSIONS

61. In light of the foregoing, the following points can be made:

a. Further to the adoption of the EU Treaty establishing a Constitution for Europe, the European system of legal safeguards for the key principles of local and regional self-government, although it has been strengthened, is still incomplete;

b. The system will not be complete until the treaty referred to in the preceding paragraph comes into force and the new Council of Europe Convention on Regional Self-Government is, like the European Charter of Local Self-Government, finally accepted by all Council of Europe member States;

c. Considering, firstly, the time needed to achieve this objective and, secondly, the urgency of the problems connected with local and regional self-government throughout Europe, it is desirable to enhance this system of safeguards as of now, despite the fact that it is still incomplete or provisional in certain respects;

d. To this end, it is appropriate to incorporate the existing provisions on local and regional self-government and the principles of subsidiarity and proportionality set out, respectively, in the European Charter of Local Self-Government, the Treaty establishing a Constitution for Europe and the Draft Convention on Regional Self-Government¹⁷, in a single joint policy document of the Congress/Committee of the Regions;

e. This document, setting out all the provisions in a simple, organised and coherent fashion, in the form of a “European Code of Subsidiarity and Local and Regional Self-Government”, should help European local and regional elected representatives and the associations representing them to understand, master and make good use of the European legal rules that are in force or have been adopted or proposed in order to safeguard their fundamental rights;

f. This document could be prepared in the form of a synoptic table and contain proposals with a view to highlighting the principles contained in the European Charter of Local Self-government and adapting the provisions of the draft Convention on Regional Self-Government referred to in paragraph 12.d above, so that these documents may both one day be applicable, in complementary fashion, in accordance with the needs expressed by the states.

g. It is important that the Congress should be involved, as an observer, in the work of the Committee of the Regions on monitoring compliance with the principles of subsidiarity and local and regional self-government by the institutions of the European Union and, conversely, that the Committee of the Regions should be involved, in the same capacity, in the Congress’s work on monitoring the implementation of the principles of the European Charter of Local Self-Government in Council of Europe member States;

h. Accordingly, the Congress competent authorities should give careful consideration to the proposal from the Committee of the Regions¹⁸ concerning the possibility that the Group of Independent Experts on the European Charter of Local Self-Government referred to in paragraph 54.c might contribute to the above-mentioned work of the Committee of the Regions. This proposal could also represent the opportunity to reinforce the status of the Group within the Council of Europe.

62. In light of the considerations in the preceding paragraph, the Institutional Committee could:

a. prepare a preliminary draft “European Code of Subsidiarity and Local and Regional Self-Government” with the assistance of the Group of Independent Experts on the European Charter of Local Self-Government, keeping the Commission for Constitutional Affairs and European Governance of the Committee of the Regions informed of its work;

b. address the preliminary draft to the Bureau of the Congress so that the Committee of the Regions authorities may be duly consulted on further work on the subject with a view to a final decision as to whether the Code should be adopted by the Congress and the Committee of the Regions. With this in mind, the consultation procedure could be achieved, through the Congress/Committee of the Regions Contact Group if appropriate, in consultation with the Institutional Committee's Chair;

c. closely follow the work of the Committee of the Regions on monitoring compliance with the principle of subsidiarity by the institutions of the European Union and regularly invite a representative of the competent body of the Committee of the Regions to its meetings on compliance with the principle of local and regional self-government in Council of Europe member States;

d. put proposals to the Bureau of the Congress concerning the reinforcement of the status of the Group of Independent Experts on the European Charter of Local Self-Government within the Council of Europe and its contribution to the work of the Committee of the Regions in consultation with the Group. In this framework the Committee of the Regions should be consulted on the point related to the Group's contribution to its activities. This consultation process, if appropriate, could be achieved through the Congress/Committee of the Regions Contact Group, in connection with the Institutional Committee's Chair, with a view to a final decision.

63. To this end, it is proposed that, if appropriate, matters relating to:

a. the preparation of a “European Code of Subsidiarity and Local and Regional Self-Government” based on the European system of legal safeguards for the key principles of local and regional self-government in Europe,

b. the participation of Congress representatives in the work of the Committee of the Regions on monitoring compliance with the principle of subsidiarity by the institutions of the European Union, and the participation of Committee of the Regions representatives in the work of the Congress on compliance with the principle of local and regional self-government in the Council of Europe member States,

c. and the contribution of the Group of Independent Experts on the European Charter of Local Self-Government to the above-mentioned work of the Committee of the Regions,

be part, in due course, of a general agreement between the Congress and the Committee of the Regions, making an important contribution to relations between the Council of Europe and the European Union.

APPENDIX

European Charter of Local Self-Government CETS No.: 122

Treaty open for signature by the member States of the Council of Europe

Opening for signature Entry into force

Place: Strasbourg Date : 15/10/1985 Conditions: 4 Ratifications. Date : 1/9/1988

Status as of: 2/9/2004 cf: http://conventions.coe.int

² Conference organised on 15 and 16 October 1999 by the Congress in conjunction with the Committee of the Regions on the theme “The Council of Europe Charters of Local and Regional Self-Government: Subsidiarity in Action”.

³ There is a specific reference to the content of the resolution in Part V of this report (paragraph 59).

⁴ Opinion of 13 December 2000 on the Recommendation of the Congress of Local and Regional Authorities of Europe on the European Charter of Regional Self-Government. Rapporteur: Mr Koivisto.

⁵ Opinion of 21 November 2002 on the role of the local and regional authorities in European integration. Rapporteur: Lord Tope.

Created in 1957, the European Conference of Local Authorities became, in 1982, the Standing Conference of Local and Regional Authorities of Europe. Further to the Vienna Summit (October 1993), in 1994, the Congress of Local and Regional Authorities of Europe was established.

⁷ Document CdR 226/2004. ⁸ Treaty adopted by the European Council in Brussels on 17 and 18 June 2004.

⁹ Convention on the Future of Europe, convened by the European Council in Laeken on 14 and 15 December 2001.

¹⁰ These provisions are amply described in the CONST Commission report of the Committee of the Regions, mentioned in the introduction to this report.

¹¹ This type of co-operation is covered by another Council of Europe treaty: the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities (Madrid, 1980).

¹² Recommendation 34 (1997) of the Congress of Local and Regional Authorities of Europe inviting the Committee of Ministers of the Council of Europe to adopt a European Charter of Regional Self-Government in the form of an international convention. The Congress adopted the recommendation at its 4th plenary session (Strasbourg, 3-
5 June 1997).

¹³ Document MCL-13(2002)8 final.

¹⁴ The 14th Conference of Ministers responsible for Local and Regional Government will take place in Budapest, Hungary on 24 and 25 February 2005.

¹⁵ Article 2, paragraph 3, of Resolution (2000)1.

¹⁶ Article 7 of the Protocol on the application of the principles of subsidiarity and prortionality of the Treaty establishing a Constitution for Europe and article III-270 of the treaty.

¹⁷ As prepared by the CDLR, in the light of any observations on the text from the 14th Conference of European Ministers responsible for Local and Regional Government (Budapest, Hungary, 24 and 25 February 2005).

¹⁸ The proposal was put forward at the “First Conference on Subsidiarity” held by the Commission for Constitutional Affairs and European Governance of the Committee of the Regions in Berlin on 27 May 2004.