41st SESSION

Report

CG(2021)41-05AMDT

22 September 2021

AMENDMENT

Monitoring of the application of the European Charter of Local Self‑Government in the Netherlands

Committee on the Honouring of Obligations and Commitments by Member States of the European Charter of Local Self-Government(Monitoring Committee)

Rapporteur:[1]        Vladimir PREBILIC, Slovenia (L, SOC/G/PD)

Draft recommendation (for vote) AMDT 1 2

Summary

This report follows the fourth monitoring visit carried out remotely in the Netherlands since the country ratified the European Charter of Local Self-Government in 1991.

The report acknowledges the long tradition of local democracy and local self-government in the Netherlands, rooted in a political culture that favours negotiation, compromise and agreement between levels of government.  It also welcomes the positive evolution of the 2015 decentralisation reform, which has led to the transfer of additional tasks and responsibilities to the local level, particularly in the social sphere, nature management and spatial planning.

However, the report expresses particular concerns over the appointment procedure of mayors and King’s Commissioners, which has not been changed in the legislation to provide for their democratic election by the citizens. Furthermore, there is no direct recognition of the principle of local self-government in the legal framework of the Netherlands. The report also deplores the persistent lack of clarification and overlap of competences between municipalities and provinces. It points out that local government financial resources are not commensurate with the additional tasks municipalities must perform since the 2015 decentralisation reform, in particular in the social sphere.

Consequently, the recommendation urges national authorities to replace the appointment of mayors and King’s Commissioners by democratic election, to ensure the citizen’s rights to participate in the conduct of local public affairs and comply with fundamental principles of democracy. It also invites the Dutch authorities to match the additional competences that the municipalities must perform following decentralisation, in particular in the social and youth support area, with commensurate financial resources; to expand the municipal and provincial taxing capacity; to diversify the local financial resources; to revise the legislation regulating intermunicipal cooperation to strengthen the position of the municipal council. Finally, Dutch authorities are encouraged to ratify Articles 7.2 and 8.2 of the Charter which are already applied in practice.

DRAFT RECOMMENDATION[2]

1.   The Congress of Local and Regional Authorities of the Council of Europe refers to:

a.   Article 2, paragraph 1.b, of the Charter of the Congress of Local and Regional Authorities appended to Statutory Resolution CM/Res(2020)1, stipulating that one of the aims of the Congress is “to submit proposals to the Committee of Ministers in order to promote local and regional democracy”;

b.   Article 1, paragraph 3, of the Charter of the Congress of Local and Regional Authorities appended to Statutory Resolution CM/Res(2020)1, stipulating that “the Congress shall prepare on a regular basis country-by-country reports on the situation of local and regional democracy in all member States and in States which have applied to join the Council of Europe, and shall ensure the effective implementation of the principles of the European Charter of Local Self-Government”;

c.   Chapter XVIII of the Rules and Procedures of the Congress on the organisation of monitoring procedures;

d.   the Congress priorities set up for 2021-2026, in particular priority 6b that concerns the quality of representative democracy and citizen participation;

e.   the Sustainable Development Goals (SDGs) of the United Nations Development Programme for 2030, particularly goals 11, for sustainable cities and communities, and 16, for peace, justice and strong institutions;

f.    the Guidelines for civil participation in political decision making, adopted by the Committee of Ministers on 27 September 2017;

g.   Recommendation CM/Rec(2018)4 of the Committee of Ministers to member States on the participation of citizens in local public life, adopted on 21 March 2018;

h.   Recommendation CM/Rec(2019)3 of the Committee of Ministers to member States on supervision of local authorities’ activities, adopted on 4 April 2019;

i.     the previous Congress recommendation on local and regional democracy in the Netherlands (Recommendation 352 (2014));

j.     the present explanatory memorandum on the application of the European Charter of Local Self-Government in the Netherlands;

k.   the contemporary commentaryon the explanatory report to the European Charter of Local Self-Government adopted by the Congress Statutory Forum on 7 December 2020.

2.   The Congress notes that:

a.   The Netherlands signed the European Charter of Local Self-Government (ETS No. 122, hereafter "the Charter") on 7 January 1988 and ratified it on 20 March 1991. At the time of ratification, the Netherlands made several “declarations” pertaining to different articles of the Charter, on the grounds of Article 12, paragraph 2 of the Charter: namely, that the Netherlands will not consider itself bound by the provisions of Article 7, paragraph 2; Article 8, paragraph 2; Article 9, paragraph 5; and Article 11 of the Charter. Moreover, and in accordance with Article 13 of the Charter, the Netherlands declared that it intended to confine the scope of the Charter to provinces and municipalities and that the Charter would apply to the Netherlands in Europe (on the grounds of Article 16 of the Charter).  The Charter came into force with respect to the Netherlands on 1 July 1991.

b.   The Netherlands signed the Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority (ETS No. 207) on 16 November 2009 and ratified it on 13 December 2010 with entry into force on 1 June 2012.

c.   The Committee on the Honouring of Obligations and Commitments by member States of the European Charter of Local Self-Government (hereafter referred to as Monitoring Committee) decided to examine the situation of local and regional democracy in the Netherlands in the light of the Charter. Vladimir PREBILIC, Slovenia (L, SOC/G/PD) and Robert-Csongor GRUMAN[3], Romania (R, EPP/CCE), have been assigned the task of preparing and presenting to the Congress a report on the monitoring the application of the European Charter of Local Self-Government in the Netherlands. The rapporteurs carried out monitoring meetings with representatives of various institutions at all tiers of authority, remotely, from 25 to 27 January 2021.

3.   The co-rapporteurs wish to thank the Permanent Representation of the Netherlands to the Council of Europe and all those whom they spoke to during the remote meetings for their assistance.

4.   The Congress notes with satisfaction that in the Netherlands:

a.    local democracy and local self-government have a long tradition and are rooted in political culture that favours negotiation, compromise and agreement between levels of government;

b.   a major decentralisation reform launched in 2015 has led to the transfer of additional tasks and responsibilities to local level, particularly in the social sphere, nature management and spatial planning. The mandated regulation and management of tasks (“medebewind”) has also evolved into decentralisation, which is increasingly used and should permit wider local autonomy in carrying out those tasks;

c.   there is a wide range of different consultation activities and inter-administrative agreements as well as monitoring of these activities through the Council of State;

d.   municipalities actively cooperate in many spheres, including the labour market, youth care, psychological care and energy transition;

e.   de‑constitutionalisation of the appointment of mayors and King's Commissioners has opened the way for the legislator to regulate and eventually replace the appointment system by the election of mayors and King’s Commissioners.

5.   The Congress expresses concern, however, over the following points:

a.   theappointment procedure of mayors and King's Commissioners has not been changed in the legislation to provide for their democratic election by the citizens. There are no clear plans for such a shift notwithstanding the fact that their role as political figures has become much more prominent;

b.   there is no express or direct recognition of the principle of local self-government in the legal framework of the Netherlands, neither in the Constitution nor in legislation;

c.   there is a persisting lack of clarification and an overlap of competences between municipalities and provinces;

d.   local government financial resources are not commensurate with the (additional) tasks municipalities must perform since the decentralisation reform, in particular in the social sphere;

e.   municipalities’ and provinces’ own sources of income and their competence to raise taxes remain limited;

f.    provinces and municipalities continue to financially depend on the central government since they are mainly funded by grants from the central level. Local resources are also bound by a correlation with total spending at central level that reduces the predictability of resources and complicates medium-term planning;

g.   emerging of a new intermediate level of administration, between municipalities and provinces, as result of regional cooperation, in which many municipalities engage, raises questions of democratic control and accountability of such governance structures;

h.   although local office holders can freely exercise their functions, in line with Article 7.1 of the Charter, there have been recent incidents of aggression against mayors, which have given rise to concerns as regards the security environment for execution of local mandates.

6.   The Congress recommends that the Committee of Ministers invite the Dutch authorities to:

a.   replace the appointment of mayors and King’s Commissioners by democratic election, to ensure the citizens’ right to participate in the conduct of local public affairs and comply with fundamental principles of democracy;

b.   recognise the principle of local self-government in the Constitution and/or legislation;

c.   entrench the municipal tasks in the Municipalities Act and clarify the distribution of municipal and provincial competences by revising relevant sectorial legislation;

d.   match the additional tasks that the municipalities must perform following decentralisation, in particular in the social and youth support area, with commensurate financial resources, while providing targeted support to municipalities in need; the targeted measures should be assessed taking into account a financial divide between rural and urban municipalities;

e.   expand municipal and provincial taxing capacity by increasing the share of resources coming from local taxes (or creating a similar secure base, such as a share in a national tax). This would strengthen the financial autonomy of the municipalities and provinces and reduce dependency on transfers provided by the central government;

f.    diversify the local financial resources and review the system of indexing of total amount of general transfers to total central government expenditures that creates a pro-cyclical correlation between local and central spending, so as to ensure a better predictability of financial resources, which are made available to municipalities through transfers;

g.   revise the legislation regulating intermunicipal cooperation to strengthen the position of the municipal council in the joint arrangements within regional areas in accordance with the principle of democratic control, legitimacy and accountability for the decisions taken;

h.   improve the security environment of the exercise of local mandates by taking all possible measures to protect local office holders from all kinds of threats and aggression;

i.    ratify Articles 7.2 and 8.2 of the Charter, which are already applied in practice.

7.  The Congress calls on the Committee of Ministers and the Parliamentary Assembly of the Council of Europe to take account of this recommendation on the monitoring of the application of the European Charter of Local Self-Government in the Netherlands and the accompanying explanatory memorandum in their activities relating to this member State.