Reply of the Committee of Ministers.- to CLRAE Recommendation 39 (1998).-Committee of Ministers., Minister's Deputies.-Decision 678/9.1a (September 1999)

678th meeting – 8-9 September 1999



(item 9.1a)

Reply of the Committee of Ministers

to CLRAE Recommendation 39 (1998)


In its Recommendation 39 (1998) – which follows Recommendation 2 (1994) and the reply of the Committee of Ministers to this recommendation – the Congress of Local and Regional Authorities of Europe (CLRAE) invited the Committee of Ministers to send to the Contracting parties to the European Charter of Local Self-Government (hereinafter the Charter) the third report of the Working Group responsible for monitoring the implementation of the Charter.

The CLRAE also asked the Committee of Ministers to address to these same Parties a recommendation including the proposals that the CLRAE made in point 7, a. to j., of Recommendation 39 (1998). These proposals raise, in particular, the following questions:

- incorporation of the Charter into the legal systems of ratifying countries;

- direct applicability and uniform interpretation of the Charter’s provisions;

- explicit repeal of domestic legal provisions which are incompatible with the Charter;

- interpretation and application of legislation adopted after ratification of the Charter consistently with this Convention.

The Committee of Ministers wishes to underline, from the beginning, that no doubt exists as to the legal nature of the Charter: this is an international treaty establishing obligations for the States that have ratified it. These obligations apply equally whether the Charter is incorporated into domestic law or not. The Committee of Ministers gives the highest consideration to the fulfilment of these obligations. In this respect, compliance with the commitments accepted by member States in the field of local democracy has recently been the subject of the monitoring procedure set up by the Committee of Ministers.

Within this framework, the Committee of Ministers noted the existence of certain problems in the implementation of the Charter, including shortfalls concerning the legislation applicable in the field of local self-government. Nevertheless, the Committee of Minister cannot share the opinion, that the CLRAE seems to hold, according to which the incorporation of the Charter in the legal systems of ratifying member States "constitutes a formal and necessary act in accordance with the rules governing the implementation of international treaties".

If the Charter has not been incorporated into domestic law in all the countries that have ratified it, this is due to the fact that each legal system exercises sovereign authority over the relationship between international and domestic law.

Making value judgements about the approaches adopted in this connection amounts to calling into question the States' good faith in accepting obligations on accession to international treaties and the effectiveness of treaty ratification procedure.

In view of the different approaches, a recommendation asking all States that have ratified the Charter to incorporate it into domestic law would create severe problems and would not be appropriate.

In addition, when ratification of the Charter is not followed by its incorporation into domestic law, that in itself does not make the obligations entered into by a State any less real even if in such a case none of the Charter’s provisions are directly applicable.

Whatever the solution retained, ratification of the Charter obliges the State to see whether it needs to amend existing legal provisions or to adopt new ones in order to make domestic law – and also practice – consistent with the international obligations resulting from the convention.

For this reason, ratification, in almost all cases, involves a parliamentary procedure. On closer inspection it may turn out that domestic law is consistent with the obligations resulting from the convention and that no additional legislative act is necessary.

It should also be recalled that incorporation of a convention into domestic law does not automatically make its provisions directly applicable. In this respect, the general scope of its provisions makes it unlikely that the Charter could usefully be relied upon before a court.

An indication in a recommendation of the Charter’s provisions to apply directly would not be compulsory and would not bind domestic courts. Consequently, such a recommendation would not in practice bring about any improvement in the legal protection afforded to local self-government. Even in respect of the more precise provisions of the Charter, it would be open to domestic courts to find that they were not in a position to give a decision solely on that basis.

On the other hand, the Charter's objectives are better served – and the protection of local self-government is more effective – when domestic law is fully consistent with the Charter's provisions and sets down clear rules which local authorities may rely on in the courts.

Finally, the Committee of Ministers recalls that, in the absence of a judicial mechanism of supervision, it is for the States that have ratified the Charter to interpret and implement its provisions in good faith. The attention that not only the Committee of Ministers as a collegial body but also individual member States pay to conclusions and remarks made by the CLRAE within the framework of its political monitoring procedures clearly shows both the effectiveness of the CLRAE action and the good faith of these States.

In conformity with the decision taken on the second report of the Working Group responsible for monitoring the implementation of the Charter, the Committee of Ministers decided to transmit the third report of this Group, as well as Recommendation 39 (1998) of the CLRAE, to all member States, for them to take account of the analyses and proposals of the CLRAE.