Report on Local and Regional Democracy in The Netherlands - CG (6) 4 Part II
Rapporteurs: Moreno BUCCI (Italy) and Hans-Ulrich STOECKLING (Switzerland)
1. At its meeting in Geneva on 27 April 1998, the Bureau of the Congress decided to produce a report on the situation of local and regional democracy in the Netherlands, as part of its series of reports on member countries. The report therefore comes within the scope of Resolution 31 (1996), particularly paragraph 11.
2. It is also in response to the invitation issued to the Congress by the Ministers' Deputies at their 650th meeting to continue its activities concerning the preparation of such reports.
3. On 11 August 1998, the three presidents of the Congress asked Moreno Bucci and Hans-Ulrich Stöckling to produce the report. This was confirmed by the Bureau on 29 September 1998.
4. The report was drawn up at the invitation of the Netherlands delegation. One of the reasons for this was that discussions had been taking place for a long time about the role of mayors and provincial commissioners in the Netherlands, which was specifically commented on in Resolution 60 (1998) 1 of the Congress on the verification of procedures for appointing national and special guest delegations to the CLRAE and of members’ credentials (see in particular paragraph 17). The subject has also been considered in an opinion drafted by Mr Engel for the Working Group on the European Charter of Local Self-Government [CPL/GT/CEAL (4) 38 revised].
5. Another issue that had been raised in the course of the Charter's monitoring procedures was the establishment of special organisational arrangements between the municipal and provincial levels to deal with problems relating to the management of large cities, and in particular Rotterdam. However, the proposals have since been abandoned by the Dutch government.
6. The rapporteurs wish to stress that this report should be seen in the context of a positive dialogue with the national authorities. Indeed, many of those concerned in this country, with its long democratic tradition, are convinced of the need for varying degrees of reform to ensure that its institutions function better in the future and are brought closer to their citizens. Evidence for this is provided by the draft legislation currently being considered by the second chamber of the Dutch parliament (Bill 25444) and by the creation of a royal commission on dual authority and local democracy, made up of prominent persons. The royal commission was set up in October 1998 and is supposed to produce its report by December 1999.
7. The rapporteurs paid two visits to the Netherlands, from 8-9 October 1998 and 2-5 February 1999. During the visits, they met many leading figures, including representatives of the Dutch municipalities association (Vereniging van Nederlandse Gemeenten) and the Dutch association of provinces (Interprovinciaal Overleg), the Netherlands delegation and its chairman, Alexander Tchernoff, the Minister of the Interior, Mr Peper, and officials, numerous local and regional councillors, mayors and queen's commissioners who were prepared to meet them, senior local government officers, an important delegation from the royal commission, including its deputy chairman, Mr Vonhoff, and numerous academics and researchers. Particular thanks should be paid to the minister, Mr Peper, for taking the trouble to give detailed written replies to a series of questions drawn up by the rapporteurs.
8. The rapporteurs also visited the province of Friesland and met provincial officials and officials from the municipality of Leeuwarden. What made this visit particularly interesting was the special status granted to the Friesian language in the province. The rapporteurs also found growing interest among the Dutch media. They were interviewed by the journal Nederlandse Gemeente, and an article about them appeared in the major daily paper De Volkskrant. Finally, the rapporteurs' activities aroused interest among members of parliament, two of whom submitted written questions to the government in the second chamber. The rapporteurs also received a great deal of written material from those whom they met.
9. A list of persons met and the programmes of the two visits appear as an appendix, together with a non-exhaustive list of publications and other material consulted by the rapporteurs and the consultant in the course of drafting the report.
10. Finally, the rapporteurs offer their grateful thanks to Professor Philippe de Bruycker (Brussels) for his major contribution to their work.
11. After the adoption of the draft Recommendation and draft Resolution on 10 May, the Dutch delegation submitted a series of considerations and proposals. The Rapporteurs agreed to add this contribution to the report as Appendix 2.
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12. On the basis of this report, the Rapporteurs propose to continue the dialogue with the Netherlands, particularly by advising the Congress to adopt the draft Recommendation, which identifies a series of areas where reform could be introduced in the Netherlands. They believe that, as with other reports, a dispassionate outside view can make a valuable contribution to the debate on the current reforms, precisely because such a view is not influenced by a whole series of administrative, institutional, legal and political assumptions, as is the case with those working in their own country, in accordance with the traditions of that country.
13. The report also raises the important issue of the Netherlands' representation within the Congress. The rapporteurs have a clear opinion on this matter. They are not sure as to whether the current system in the Netherlands corresponds with the letter and spirit of the European Charter of Local Self-Government. The draft Resolution attached to this report therefore asks the Working Group on the European Charter of Local Self-Government to undertake a detailed examination of Article 3 paragraph 2 of the Charter, and compare the situation of mayors elected by councils with that of mayors directly elected by the voters, a subject that could be relevant to current reforms extending well beyond the Netherlands.
14. The report is in seven parts. The most important issues are dealt with separately:
- the appointment of mayors (1);
- the management of large cities (2);
- intermediate authorities (3);
- supervising local authority decisions (4);
- the reservations entered by the Netherlands when ratifying the European Charter of Local Self-Government (5);
- local finances (6);
- various lesser issues deemed worthy of mention (7).
1. The appointment of mayors
15. Mayors are currently appointed by the Queen, which in practice means the government as a whole in the case of municipalities of over 15 000 population and the Minister of the Interior for the remainder, under article 131 of the constitution, whereby queen's commissioners and mayors shall be appointed by royal decree. Following developments in local democracy in the Netherlands, municipalities are not completely excluded from the process of appointing mayors. The current procedure, as laid down in section 61 of the local government legislation, authorises a confidential committee of municipal councillors to issue an opinion on the candidates selected by the queen's commissioner. The latter then produces a recommendation to the minister concerning the candidates for the post of mayor. The same provision also stipulates that mayors may be dismissed at any time by royal decree.
16. The situation regarding Dutch mayors can only really be understood in the context of the whole system in the Netherlands, and not just the method of appointment. How the role of mayors is viewed in the Netherlands is fundamental. It is not purely political but also administrative. Furthermore, mayors have a genuine career structure, which involves moving from one municipality to another. They are not usually natives of the municipality concerned. Their political affiliations are known, but are only critical for the awarding of posts in the case of the large cities. Mayors are considered to be arbitrators who must stand above the political in-fighting and are seen in municipalities as defending the general interest. As well as any responsibilities that might be allocated to them, they also have an important co-ordinating function. One cannot minimise their role (mayors also chair the local executive committees). Mayors, therefore, are not the representatives of central authorities in the municipalities, whilst this system of appointment is a legacy from royal authority.
17. The problem that the method of appointing mayors undoubtedly raises has to be viewed in the light of existing practice, under which the vast majority of recommendations submitted by local councils regarding the most suitable candidate for appointment are accepted by the minister, mayors are required to answer any questions that members of their council may ask them and in the event of conflicts with their council they are finally obliged to resign, even though municipal councils have no formal powers of dismissal.
18. Nevertheless, problems clearly arise with regard to the compatibility of the Dutch system with the European Charter of Local Self-Government and, quite separately, with the Charter of the Congress.
- The European Charter of Local Self-Government speaks of "councils or assemblies ... which may possess executive organs responsible to them" (article 3 paragraph 2). The responsibility referred to requires certain clarification which the explanatory memorandum does not provide.
- However, the explanatory memorandum refers to "subordinate executive bodies". This might imply that in what is referred to in the Netherlands as the "single authority" system, the executive body should be elected by the municipal council itself. Nevertheless, there is undoubtedly a problem concerning the Charter's interpretation.
- While the current legal situation regarding the appointment and, by extension, dismissal of mayors by the government appears to conflict with this provision of the Charter, this conclusion has to be qualified in the light of actual practice and subject to the need for a few appropriate reforms, the Dutch system could be deemed to be compatible with the Charter.
- Indeed, according to its Charter, the Congress shall be composed of representatives holding "a local or regional authority electoral mandate or ... a mandate as a person directly responsible to an elected local or regional body". This provision was the subject of a report by Mr Engel, who clarified the interpretation (Doc CPL/GT/CEAL (4) 38 rev). A mayor who is appointed by the Queen and can only be formally dismissed by her cannot be considered to be "directly responsible" to the municipal council.
19. The appointment of mayors is currently the subject of political discussions in the Netherlands. In its most recent agreement, the government promised to revise the constitution with a view to removing any references to the method of appointment and make it purely a subject for legislation. Parliament's task will be facilitated by a royal commission on "dual authority and democracy", established on 30 September 1998. The commission is due to report to the government by 1 January 2000 on ways of applying the dual authority system to local administration and is specifically instructed to advise on how the possible introduction of a system of elected mayors relates to this problem and its legal and other consequences. The government agreement states that in the meantime, citizens will be given the opportunity to exercise greater influence on the appointment of mayors and that, to that end, the Minister of the Interior has been instructed to alter the bill to amend section 61 of the local government legislation to empower municipalities to organise consultative referendums on candidates.
20. Bill 25444, which was initially tabled on 5 July 1997, was amended by the government on 8 February 199978. Its purpose is to modify the procedure for appointing mayors and provincial queen's commissioners. Three planned modifications to the current procedure are particularly worth mentioning:
- firstly, and most importantly, municipalities will now be able to organise consultative referendums on the candidates for the post of mayor;
- secondly, municipal councils will be required to include at least two names on their recommendations to the minister and the minister will only be able to disregard such recommendations on the advice of the queen's commissioner or on other fundamental grounds;
- thirdly, councils will be able to issue recommendations to the minister to dismiss mayors with whom they are in dispute and the minister will only be able to disregard such recommendations on the advice of the queen's commissioner, who also has to be involved in the procedure, or on other fundamental grounds.
21. There is no provision for organising consultative referendums as part of the procedure for appointing queen's commissioners.
22. The substantial planned amendments to the system for appointing mayors and – leaving aside the referendum option – queen's commissioners might lead one to think that the system was now compatible with the two texts. It is a step in the right direction, even if municipal councils are required to submit two names to the Minister of the Interior for each post of mayor. Therefore, councils do not really have the power to appoint mayors.
23. The procedure for amending the Dutch constitution, necessary for wider change, takes time. Constitutional amendments have to be approved twice, with a parliamentary election in between. They therefore have to be adopted in an identical form by two successive parliaments.
24. The European Charter of Local Self-Government foresees that mayors should emanate from their municipalities. The existence of parliamentary lobbyists responsible, within their own political party, for participating in the management of the mayors’ appointment system, is contrary to democratic rules. The proposed changes to the legislation ensure that mayors really are answerable to their councils. The use of referendums in the procedure for appointing mayors should in all likelihood result in a fairly early change to this system.
25. The fact that the commission on "dual authority and democracy" is undertaking a thorough examination of the potential consequences of the various reform proposals is to be welcomed. Thus, the democratic legitimacy that mayors would acquire from being directly elected by the people would necessitate a complete review of the relations between the various municipal bodies with a view to strengthening the dual authority system. If mayors were to be appointed by the municipal council from among its members or possibly outside, the local government legislation, which in theory is based on the single authority principle, would not necessarily have to be revised.
26. It should be noted in passing that the European Charter of Local Self-Government has fairly little to say about the different ways of organising local authorities. This probably reflects the fact that, given the wide variety of organisational arrangements for local government in the Council of Europe's member states and the need to find a consensus in order to agree on the wording of a treaty, the Charter could not plump for a single rather than a dual authority model or a parliamentary rather than a presidential one. In any case, there have been very few analyses of the various forms of political structure within local authorities compared with the many studies of central government. The issue is sufficiently important for the Working Group on the European Charter of Local Self-Government to consider this matter using a comparative approach. To contribute to the debate in the Netherlands, a conference could be organised in that country in conjunction with the commission on "dual authority and democracy", one of whose working groups is specifically concerned with foreign experience.
27. The Dutch local authorities association has itself established a consultative committee on renewing local democracy (Beraadsgroep Vernieuwing van de Lokale Democratie) chaired by Hans Ouwerkerk, mayor of Almere. It appears from what its chairman has to say that there could be a system in which the mayors of large local authorities are elected but not those of small ones (Nederlandse Gemeente no. 10, March 1999).
2. The management of large cities
28. Like many other countries, the Netherlands is experiencing difficulties in managing its large cities. The elements of the problem seem to be unchanging and are difficult to resolve: a central municipality located within a much larger conurbation with a series of functions the cost of which, for various reasons, it has increasing difficulty meeting; neighbouring and surrounding authorities which resist extensions to its boundaries and jealously defend their autonomy, while benefiting from the wealth that the central municipality generates; in some cases organisational arrangements for inter-authority co-operation established with varying degrees of difficulty but which are ill-adapted to the requirements of transparency and citizen participation; and a concentration of wealth in the central authority which, however, only collects a small part of it in relation to the significant financial burdens it has to bear, while structural reforms remain politically out of the question.
29. Moreover, the Netherlands has experienced such problems for many years. Unfortunately, the attempt to solve them by establishing city-provinces ended in failure. The idea was to amalgamate central and surrounding municipalities into city-provinces which would combine municipal and provincial responsibilities while at the same time the central municipality in each conurbation would be divided into a number of smaller authorities to ensure that it did not dominate the province. Outline legislation approved in 1994 provided for seven city-provinces to be established, in Amsterdam, Rotterdam, The Hague, Utrecht, Arnhem-Nijmegen, Enschede-Hengelo and Eindhoven. Pending the creation of the new provinces, the municipalities concerned were required to co-operate in certain fields. Rotterdam, which was the largest city, was chosen as the pilot area to try out the proposed reforms. Two referendums were held on the subject in 1995, in Rotterdam and Amsterdam, and with 90% of the population of the municipalities concerned voting against the reforms the proposals were overturned. It should be pointed out however that only the inhabitants of the large cities concerned were consulted in the referendums and that these inhabitants might have feared the break-up of the central city as such into several smaller municipalities, thus creating a situation like the one that already exists in Brussels, to take one example. Besides, the proposals do not necessarily offer a convincing answer to the problems of more peripheral or rural municipalities, which would thereby be relegated to smaller provinces with a more limited capacity for action.
30. It has to be acknowledged that it is difficult to find political solutions to the problems of managing large cities. The Charter has nothing to say on the subject and numerous countries have failed to provide an appropriate response. No single model can be put forward. Encouragement must therefore be given to imagination and efforts to achieve reform. Now that it is – quite rightly – no longer considered acceptable to merge the municipalities that form large conurbations, it would appear more appropriate to opt for the establishment of supra-municipal bodies rather than inter-authority co-operation, particularly as such bodies can be given democratic institutions. Such an arrangement, which in fact constitutes enforced inter-authority co-operation through new bodies, presupposes that the political opposition of the municipalities concerned to such a change can be overcome.
3. Intermediate authorities
31. The Dutch system of local authorities is still very traditional. It corresponds to the three tier model of central government, the intermediate, or provincial, authorities and the bottom tier municipalities. There has been a very long running debate in the Netherlands on regionalisation. However, the concept was given a different meaning to the one that is usually applied: whereas the normal practice in Europe has been to establish regions one tier above the intermediate level, in the Netherlands it was more a case of creating a tier below the provincial level, for example through inter-authority co-operation, or increasing the number of provinces (a bill tabled in 1977 would have created 24 provinces).
32. The idea now seems to have been abandoned. This is probably explained in part by the large and sufficiently powerful municipalities that already exist and the slow but continuing process of mergers which has reduced the total number of municipalities from 741 in 1985 to 538 in 1999, as well as the development, despite certain shortcomings, of inter-authority co-operation. This specifically Dutch notion of regionalisation has also probably been superseded by trends towards the creation of large and powerful regions on a more European scale. The legitimate opposition to the establishment of a fourth tier of government in a relatively small country suggests that efforts should be concentrated more on strengthening the provincial layer of authority.
33. This was the basis of an experimental reform project in Friesland province which started in 1994 and whose purpose was to strengthen the province's co-ordinating powers while at the same time granting the municipalities greater freedom of action within this new framework. However, the project was abandoned in 1998 following opposition from a large number of local authorities to the establishment of a new environmental agency, which the municipalities feared would encroach on their areas of responsibility and lack democratic legitimacy.
34. Any modernisation of the provinces should at least bring the method of appointing queen's commissioners into line with that of mayors, or failing that reduce their powers in favour of the provinces' own executive bodies, and should also increase provinces' financial standing, which currently compares unfavourably with that of the municipalities. It is to be hoped that the Netherlands will reconsider its position concerning the European Charter of Regional Self-Government. Although the homogeneous nature of the country's population and the satisfactory solutions that have been found to protect the minority in Friesland render any federalist-type measures pointless, it must be borne in mind that the draft Charter of Regional Self-Government draws a clear distinction between federated regions and decentralised regions whose more restricted autonomy can be perfectly consistent with a unitary state such as the Netherlands. Many leading Dutch figures seem to be convinced of the need to give the provinces a greater role, should it be impossible to create alternative democratic bodies either below or above the provincial level. The leaders of the provinces have themselves considered this issue, particularly in a report prepared by the audit commission of the Dutch association of provinces (IPO), published in February 1996 under the chairmanship of Dr. van Kemenade and M. Hendricks under the title "closer to the future" (Dichter bij de toekomst). Provincial leaders seem to be convinced that the central government must grant them more powers and the corresponding financial resources, and that in appropriate cases and in accordance with the subsidiarity principle, certain powers should be devolved to the provinces rather than municipalities, particularly when it comes to managing the problems of large cities. However, they are also convinced that no one else will help them to establish the required new organisational arrangements and visibility, and that they will have to arrange their own escape from the morass in which they find themselves. Further evidence of the difficulties they face is the low turn-out at provincial elections, with a further decline at this year's March poll.
4. Supervising local authority decisions
35. According to article 13 paragraph 4 of the constitution, decisions of the provinces or municipalities cannot be set aside by royal decree unless they are unlawful or conflict with the public interest. As far as local authorities' own powers are concerned, monitoring of compatibility with the public interest goes beyond what is permitted by the European Charter of Local Self-Government. However, it has to be pointed out that although the power to intervene on grounds of public interest exists, this provision is effectively never applied, which means that in practice the Netherlands is much more in compliance with the Charter's spirit than the theoretical possibility of supervision would suggest. Besides, numerous respondents have confirmed that the regular reports on municipalities' activities that the queen's commissioners are required to submit are more of a formality than a real exercise of administrative supervision. At all events, this provision is not incompatible with the Charter of Local Self-Government, as ratified by the Netherlands, as the latter has entered a reservation on the subject. Nevertheless, the country could be asked to reconsider lifting part or all of the its reservations, which only relate to the way supervision is defined.
5. Dutch reservations concerning the European Charter of Local Self-Government
36. When the Dutch government ratified the European Charter of Local Self-Government on 20 March 1991, in accordance with article 12 paragraph 2 it entered reservations concerning article 7 paragraph 2, article 8 paragraph 2, article 9, paragraph 5 and article 11 of the Charter, by which it did not consider itself to be bound.
37. Eight years after the Netherlands ratified the Charter, it is worth considering whether some of the 1991 reservations might be lifted. The Dutch government is to be congratulated on its decision to consult the Council of State on this matter in 1995. The reservation concerning article 8 paragraph 2 has already been considered in section 4, on the supervision of local authority decisions, and that relating to article 9, which is concerned with local government finances, will be discussed separately in the section of the report dealing with that subject.
● Article 7 paragraph 2 of the Charter, concerning the financial status of local elected representatives
38. According to the Dutch Council of State, the reservation relating to this provision cannot be lifted because it prevents central government from allowing local authorities themselves to determine the financial status of local elected members. This interpretation is open to dispute. What is important is that local members' status satisfies the financial requirements in article 7 paragraph 2 of the Charter; how this should be achieved is not specified. It would therefore seem appropriate to reconsider this reservation.
● Article 11 of the Charter, concerning the legal protection of local self-government
39. The Dutch Council of State has ruled that article 136 of the constitution could pose problems here. This states that "disputes between public bodies shall be settled by royal decree unless they fall within the competence of the judiciary or decisions are referred to other bodies by act of parliament".
40. The progress made by the Netherlands in the way administrative disputes are handled following the European Court of Human Rights' ruling on the Bentham case suggests that the Dutch government must give serious consideration to lifting the reservation relating to article 11. In general, Dutch local authorities' right to bring disputes before the administrative courts does not seem to raise any problems. The use of royal decrees to settle disputes between public bodies does not appear to contravene article 11, so long as the local authorities concerned have the right to appeal against such royal decrees, which do not appear to be judicial decisions, to an administrative court. If this were not the case, the Netherlands would have to find some way of granting local authorities a general right to seek a remedy in the courts, otherwise it could be in breach of article 6 of the European Convention on Human Rights. The issue raised is not confined to the reservation concerning article 11 of the Charter, even though it is clear that this should be lifted by the Netherlands, if necessary by taking the necessary steps to bring its domestic legislation into line with the Charter. The fact that none of the persons spoken to drew the rapporteurs' attention to this issue suggests that it is of very little practical importance.
6. Local authority finances
41. Dutch local authorities have very limited financial autonomy compared to other European countries, despite a certain amount of progress in recent years.
42. Firstly, own resources, particularly those derived from local taxes, are very restricted: only 15% of municipalities' (and 10% of provinces') income comes from local taxes. As a result, local authorities are excessively dependent on central government grants.
43. In addition, the level of specific grants is significant greater than the general grants to municipalities and provinces, probably because of the importance of jointly administered activities (medebewind) in the Netherlands. In 1996 the relevant figures were 61 compared with 38% for municipalities and 68 compared with 31% for provinces. Other sources cite significantly different figures for municipalities, but the general picture remains unchanged.
44. How far is such a situation in compliance with the Charter of Local Self-Government? The Netherlands is bound by article 9 of the Charter, with the exception of paragraph 5 about which it has entered a reservation. The question then arises as to whether Dutch local authorities have "adequate financial resources", as article 9 paragraph 1 stipulates. Above all, 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".
45. The Netherlands authorities should also examine the scope of the reservation relating to article 9 paragraph 5, which is apparently linked to section 12 of the local government legislation. Special checks on municipalities granted additional financial resources do not appear to be compatible with article 9 paragraph 5 of the Charter, according to which "such procedures or measures shall not diminish the discretion local authorities may exercise within their own sphere of responsibility".
46. Welcome evidence of the importance the Netherlands attaches to the principle of the equality of citizens is provided by its development of machinery to equalise local authority resources, despite the impossibility of achieving these objectives in the case of large cities and their surrounding municipalities (see above). However, the reservation relating to article 9 paragraph 5 is regrettable in so far as it is associated with excessive restrictions on financially assisted municipalities' freedom of action. It is also important to take account of the reasons for financial assistance. While can be foreseen for special measures to be introduced to help local authorities facing short-term financial difficulties to redress the situation, it would be preferable for ones that are structurally impoverished not to have their autonomy restricted on the grounds that they are benefiting from financial equalisation.
7. Other issues
47. Although it appears to be very difficult to implement reforms in the Netherlands, in the case of some of the areas with which the Congress has been concerned in the past and which are the subjects of European conventions the Netherlands has responded very rapidly and acts as a sort of European standard bearer.
48. This applies particularly to the integration of foreign nationals, not just in terms of respecting their diversity, for example in the field of education, but also with regard to the Convention on the Participation of Foreigners in Public Life at Local Level (ETS No. 144), which the Netherlands was one of the first countries to ratify. Thus, foreign residents have been entitled to vote in municipal elections, subject to certain conditions, since 1985, without creating any apparent problems. Moreover, in accordance with the Council of Europe convention this right applies to all foreign residents. It is not therefore confined to foreign nationals from other European Union countries, as stipulated in the Maastricht Treaty. Although the right to vote has not resolved all the social and other problems of integration that foreign residents may experience, it is nevertheless a positive step in the right direction and has, in particular, increased political parties' awareness of the need to establish the necessary machinery to improve the integration of these groups.
49. One issue still remains to be settled: the fact that the right to vote applies only to municipal, and not to provincial, elections. In practice, the provinces also play a constitutional role since the provincial councils elect the members of the first chamber of parliament, which acts as the senate, or upper house. Nevertheless many Dutch citizens are now convinced that the right to vote in provincial, and even possibly national, elections could be extended to foreign residents.
50. There is another area in which the Netherlands has acted as a standard bearer: the role granted to minority languages. For example, the Friesian language has long had a quite special status in the province of Friesland. The rapporteurs received clear evidence of this from their conversations on the subject when they visited Leeuwarden, the provincial capital, in February. In particular, they noted that the province's municipalities were free to decide what they would be officially called, whether in Friesian, Dutch or both languages. The language can be used on a regular basis in council meetings and mayors and queen's commissioners from other parts of the country undertake to acquire a sufficient knowledge of Friesian, within a brief period of time, to be able to understand and follow the concerns and demands expressed the language by the citizens of the province and the municipalities concerned.
51. The Netherlands was also one of the first countries to ratify the European Charter for Regional or Minority Languages. It has recognised other languages, such as Low German, as well as ones like Yiddish and Romany which are not geographically defined.
52. In addition to the above-mentioned topics, the Netherlands pays particular attention to a number of areas of concern to local authorities, such as land-use, urban and regional planning, sustainable development, local and regional public transport and so on. What makes these problems all the more critical is the fact that the Netherlands has easily one of the highest population densities in Europe (371 inhabitants/km²), hence the importance of protecting open spaces and the environment in a relatively confined and very intensively used land area.
MEMORANDUM BY THE DUTCH DELEGATION ON THE DRAFT REPORT ON THE SITUATION OF LOCAL AND REGIONAL DEMOCRACY IN THE NETHERLANDS
The Netherlands delegation to the CLRAE thanks the Rapporteurs and expert responsible for preparing the report on the situation with regard to local and regional democracy in the Netherlands.
In expressing our thanks, we are aware of the difficult task they faced. It is true that it is hard for an outside observer to grasp, in a short time (5 days in total), the full complexity of a system which is itself the result of a long democratic tradition and efforts to seek consensus at every level.
The Rapporteurs provide comprehensive information and an in-depth analysis. They rightly ask the Government of the Netherlands to withdraw the reservations it entered when ratifying the European Charter of Local Self-Government.
While thanking the rapporteurs for their work, we wish to comment on two specific points raised in the report:
- local finances, about which we would like to provide additional clarification;
- the role of mayors and queen’s commissioners, which we consider to be compatible with Article 3, paragraph 2 of the European Charter of Local Self-Government.
The Rapporteurs state that Dutch local authorities have very limited financial autonomy compared with other European countries.
As is the case for all our European colleagues, the financial autonomy and position of our municipalities are a matter of constant concern to us in our relations with the government. It is true that we have little autonomy when it comes to setting the level of local taxation. We are, however, seeking to obtain greater autonomy and a wider margin for manoeuvre by means of an increase in the Municipalities’ General Fund together with a reduction in specific grants. In our view, this Fund offers municipalities considerable financial security and equality. The criteria for allocating money from the Fund are laid down with our agreement, and its level depends on overall trends in public spending. In accordance with the spirit of the Charter, it accounts for a continually increasing share of all local resources, to the detriment of specific grants.
The report fails to note the very extensive powers of Netherlands municipalities, and the fact that they are even allowed to define their own responsibilities.
These responsibilities are often shared with the central government; they account for huge sums such as those earmarked for social security and education, which account for almost half (about 15 billion guilder) of the specific grants allocated to municipalities. The percentage of income from local taxation obviously seems very low in comparison with such sums. If we disregard these grants resulting from the responsibilities of Netherlands municipalities - which are exceptional in Europe - in areas such as social security and education, the share of municipalities’ own income will be much greater.
The Rapporteurs are also concerned about the reservation entered by the Netherlands in relation to Article 9 § 5 of the European Charter of Local Self-Government, stating that it would be preferable for municipalities that are structurally impoverished not to have their autonomy restricted on the grounds that they are benefiting from financial equalisation.
We wish to point out that financial assistance to disadvantaged municipalities - the conditions of which prevent the Netherlands from accepting Article 9 § 5 of the Charter - was introduced in agreement with municipalities in order to remedy the - very rare - cases in which particularly weak municipalities do not fulfil the criteria governing allocations from the Municipalities’ Fund. Moreover, a recent adjustment of these criteria will reduce the number of such municipalities to just four.
THE ROLE OF MAYORS AND QUEEN’S COMMISSIONERS
The Rapporteurs gave particular consideration to the compatibility of the Netherlands system with the European Charter of Local Self-Government, concentrating primarily on the official position of mayors according to the legislation. We are disappointed that the Rapporteurs did not begin by describing the overall operation of local democracy, which we see as a prerequisite for understanding the office of mayor. The main features of this democratic system are as follows:
- According to the constitution, the municipal council is the highest of the municipality’s three political organs (“monist” system). The other organs are the executive (made up of the mayor and aldermen, elected among the councillors) and the mayor, who chairs the municipal council (without voting rights) and the executive. The mayor discharges his/her duties in accordance with the framework and rules laid down by the council. S/he must also take the aldermen’s opinions into account at all times.
- Mayors are not civil servants. They are appointed by the Crown and are thus politically and hierarchically independent of the Ministry of the Interior. They enjoy a special status.
- Mayors are both servants and representatives of their municipalities (Sections 170 and 171 of the Municipalities Act), and are considered as such by citizens. Representing inhabitants and their interests outside the municipality, they enjoy both official and above all democratic legitimacy as a result of their relationship of trust with the council.
These comments apply mutatis mutandis to the role of queen’s commissioners.
Having outlined the official position of mayors according to the legislation, the rapporteurs rightly focus on standard practices relating to:
- the appointment of mayors: the vast majority of recommendations submitted by municipal councils regarding the most suitable candidate for appointment are accepted by the Minister;
- mayors’ accountability in the discharge of their duties: they must account to the municipal council for all their actions and answer any questions councillors may ask (Section 169 of the Municipalities Act);
- resignations by mayors: in the event of conflicts with their councils, mayors are obliged to resign. Such resignations are an unwritten rule, but one that is recognised and obeyed in the Netherlands system. Ministers, for example, are subject to the same rule, which is applied in practice even though it is not laid down in the legislation.
The Rapporteurs then analyse Article 3 § 2 of the European Charter of Local Self-Government, which states that “councils or assemblies […] may possess executive organs responsible to them”. While they acknowledge that the Charter is not absolutely clear on this point, they deduce from the Explanatory Memorandum that the executive body should be elected by the municipal council itself. Immediately after this statement, they acknowledge their uncertainty on this point; in their resolution, they call for a report on the matter.
We were unable to find, in either politics books or the background to Article 3 § 2, a definition of responsibility that automatically implies the need for an election. The Charter itself refers only to councils having to be elected. As local or regional political organs, mayors and queen’s commissioners are accountable before and during the discharge of their duties and may be dismissed by municipal or provincial councils. The Netherlands ratified the Charter in this belief and did not consider it necessary to enter a reservation in this connection.
The role of mayors and queen’s commissioners is compatible with Article 3 § 2 of the European Charter of Local Self-Government.
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