Autumn Session (13-15 November 2006)
Standing Committee of the Chamber of Local Authorities
Compliance of Norwegian legislation with Article 11 of the European Charter of Local Self-Government
Rapporteur: Muriel BARKER, United Kingdom,
Chamber of Local Authorities, Political Group: SOC
1. On 1 March 2006, the Norwegian delegation to the Congress submitted a request for an opinion to the Institutional Committee, asking it to consider the extent to which Norwegian law, as reflected in the case-law of the domestic courts, complies with Article 11 of the European Charter of Local Self-Government.
2. On 21 April 2006, the Institutional Committee considered the request and declared it admissible. It then forwarded it to the Group of Independent Experts for analysis and opinion on the merits.
3. On 31 May 2006, the Institutional Committee appointed me rappporteur in charge of the opinion.
4. Norway, through the Royal Ministry for Local Government and Regional Development, presented its observations on 5 September 2006.
5. For the procedure followed in preparing the opinion, the facts, the law and the operative provisions, reference should be made to the reasoned opinion appended to this explanatory memorandum.
6. I presented the opinion of the Group of Independent Experts to the Institutional Committee at its meeting in Strasbourg on 16 October 2006.
7. On my proposal and in the light of the opinion of the Group of Independent Experts, the Institutional Committee decided to endorse the reasoned opinion of the Group of Independent Experts and propose that the Congress address a recommendation to the Norwegian authorities. The Institutional Committee’s decision is set out in Appendix 1 to this report. The reasoned opinion of the Group of Independent Experts is set out in Appendix 2.
Decision by the Institutional Committee
on the compliance of Norwegian legislation with Article 11
of the European Charter of Local Self-Government
The Institutional Committee of the Congress of Local and Regional Authorities of the Council of Europe,
With regard to the request for an opinion submitted by the Norwegian delegation to the Congress concerning Norway, asking it to consider the extent to which Norwegian law, as reflected in the case-law of the domestic courts, complies with Article 11 of the European Charter of Local Self-Government,
Having considered the request and declared it admissible by decision of 21 April 2006,
Having regard to the reasoned opinion of the Group of Independent Experts on the European Charter of Local Self-Government, which assists the Institutional Committee in its statutory functions, adopted following deliberation in plenary session at its meeting in Perugia, Italy, on 5 October 2006,
Decides to endorse the reasoned opinion of the Group of Independent Experts and to transmit to the Congress a draft recommendation inviting the Norwegian authorities to bring their legislation and judicial practice into compliance with Article 11 of the European Charter of Local Self-Government by guaranteeing, in their domestic legal system, local authorities the right, and the full exercise of that right, to judicial remedies against decisions taken by the state administration in the situations covered in the opinion in Appendix 2 in order to ensure the free exercise of their powers and respect for such principles of local self-government as are enshrined in domestic legislation.
on the compliance of Norwegian legislation with Article 11
of the European Charter of Local Self-Government
1. The Group of Independent Experts on the European Charter of Local Self-Government [the Group of Experts],
With regard to the complaint submitted by the Norwegian delegation to the Congress [the Norwegian delegation] regarding Norway [the Norwegian Government], alleging that Norwegian legislation does not comply with Article 11 of the European Charter of Local Self-Government [the Charter],
Having deliberated in plenary session at its meeting on 5 October 2006, in Perugia, Italy,
Adopts this draft reasoned opinion.
2. On 1 March 2006, the Norwegian delegation submitted to the Institutional Committee a complaint regarding Norway, registered on 10 March 2006 under reference CPL/INST (12) 21 (paragraph 10 of the Complaints Procedure for applications concerning alleged violations of the European Charter of Local Self-Government – CPL/INST (12) 18 of 10 November 2005 [the Procedure]).
The complaint alleges that Norwegian legislation does not comply with Article 11 of the Charter.
3. Pending referral to the Institutional Committee, the Group of Experts, at its meeting on 24 March 2006 in St Gall – Switzerland, on a proposal from its chair, agreed on the membership of the select group tasked with analysing the complaint and preparing the opinion (paragraph 20 of the Procedure).
The select group comprised the chair – Professor Dr Corneliu-Liviu POPESCU, Vice-Chair of the Group of Experts, in charge of complaints (Romania); the rapporteur – Mr Jean-Marie GOERENS (Luxembourg) and the national expert – Professor Dr Eivind SMITH (Norway). Later on, Professor SMITH withdrew.
4. On 21 April 2006, the Institutional Committee considered the complaint.
The complaint was declared admissible and forwarded for analysis and opinion on the merits to the Group of Experts (paragraphs 12 and 16 of the Procedure).
5. On 25 April 2006, the Secretariat forwarded the complaint to the Norwegian authorities, which were asked to provide their observations by 1 June 2006 (paragraph 17 of the Procedure).
Following a request from the Norwegian Permanent Delegation to the Council of Europe, dated 7 June 2006, for additional time to prepare the Norwegian Government’s observations, the deadline was extended to 1 September 2006.
Norway, through the Royal Ministry for Local Government and Regional Development, presented its observations on the complaint on 5 September 2006.
6. The preliminary draft reasoned opinion was prepared by the select group and drafted by Professor Dr Corneliu-Liviu POPESCU, Vice-Chair of the Group of Experts, in charge of complaints (Romania) (paragraph 21 of the Procedure).
The Group of Experts examined the draft opinion and proposed few amendments. The draft reasoned opinion, as amended, was approved by the Group of Experts at its meeting on 5 October 2006, in Perugia – Italy (paragraph 21 of the Procedure).
The draft reasoned opinion of the Group of Experts has been forwarded to the Institutional Committee for final decision (paragraph 22 of the Procedure).
II. THE FACTS
II.1. The circumstances of the case
7. The complaint concerns four decisions by the Norwegian courts regarding legal proceedings initiated by local authorities.
The facts as presented in the complaint and not contradicted by the Norwegian Government are as follows:
8. Under national legislation, local authorities are competent to decide on applications for funds, services and permits. In many cases, the state is the appeal body, as in all the following examples: social benefits, special needs education and concessions for the acquisition of real estate.
The Appeals Selection Committee of the Norwegian Supreme Court ruled on the question as to whether local authorities could apply to the courts for a review of the decisions of the state in administrative appeals against a local authority decision. It concluded that local authorities did not have the right to bring legal action. It stated in Case No. 1993-445:
“The Appeals Selection Committee concurs with the Court of Appeal that the position of the local authority as a public authority under the Concession Act (Norway) cannot of itself provide grounds for a right of action for the local authority. In fact, the local authority has not argued that this is the case. As the Court of Appeal has discussed in detail, this point of departure is assumed to be a prerequisite for a legal interest in appeal and must apply by extension to right of action. Otherwise it would not harmonise with the distribution of authority between the State and the local authorities provided for in the Concession Act for the local authority as a lower or advisory administrative body to be able to require the decision of the Ministry to be reviewed by the courts.”
9. Under Norwegian public administration law, the state may order local authorities to pay the costs of private parties in public administration cases where the local authority is the service provider.
The Supreme Court ruled that local authorities may seek neither preliminary nor judicial review of this issue. In the case in question, the local authority had applied to a superior state administrative agency for a decision adopted by a lower state administrative agency to be set aside. The application was not granted and the state ordered that the local authority should pay the costs of the private parties in connection with the application for a reversal of the decision (primarily legal fees). The Supreme Court held that the local authority did not have the right to apply to a superior administrative agency to have the decision set aside and accordingly, could not be granted the right to have the question of costs reviewed by the courts, be it preliminarily or judicially. It stated in Case No. 2004-1804:
“The obligation of the local authority applies exclusively to the costs sustained by the private party as a consequence of the application for the decision to be reversed. In this case I cannot see that there are any grounds for the local authority to have a right of action in respect of the private party with regard to the costs the County Governor ordered the local authority to pay in connection with this application. Similarly, the absence of a right of appeal for the local authority should entail that the local authority cannot be considered to have a sufficient legal interest in bringing the validity of the cost decision before the courts.”
10. Where two local authorities are unable to agree on their responsibilities in respect of social services, child welfare and education legislation, these laws contain provisions whereby the dispute may be put to a state authority for a decision. The decision cannot be appealed against to a higher State authority.
The case law of Norwegian courts of first instance interprets existing legislation as meaning that State decisions cannot be reviewed by the courts. In its decision of 28 October 2003, Drammen District Court considered the situation with regard to the Charter. It stated:
“Moreover, Kongsberg Municipality has referred to Article 11 of the European Charter of Local Self-Government of 15 October 1985, arguing that it would contravene the provision to preclude the possibility of a review by the courts of the decision by the County Governor pursuant to Section 10-3 of the Social Services Act, without giving further grounds. Norway has ratified the Council of Europe's Charter of Self-Government of 15 October 1985. According to Article 11, local authorities are to have access to “judicial remedy” to ensure “free exercise of their powers and respect for such principles of local self-government as are enshrined in the constitution or domestic legislation”. The Court's understanding of this provision is that local authorities are entitled to a legal review if the rights of the local authorities as provided for in statutes or the Constitution are infringed. In the assessment of the Court, there is no provision in any statute or in the Constitution that grants Kongsberg Municipality the right to bring the decision of the County Governor before the courts, and the Court fails to see that the Convention's Article 11 should constitute a barrier to legislation providing that disputes between local authorities concerning their responsibilities as administrative bodies should be decided by other authorities than the courts.”
The Norwegian Storting subsequently debated a proposal that Norwegian social and child welfare legislation should be amended to state expressly that all aspects of a case - i.e. legal issues and facts – could be reviewed by the courts. The Storting did not accept the proposal (Recommendation No. 23 to the Odelsting (2004-2005)).
11. In Norway private legal entities may opt not to comply with orders issued by the authorities and then argue that the decision is invalid if legal action is brought claiming compliance with the order. This also applies in cases in which a private legal entity has been ordered to make a contribution to a second private legal entity. In such instances the court must reach a preliminary decision on whether the resolution is valid or not.
The Supreme Court questioned whether local authorities had the same right to remain “passive” in relation to orders issued by central government authorities. This question was put in a case in which the State ordered a local authority to make a contribution to a private party. The Supreme Court did not rule on the question. In Case No. 1997-877, the Supreme Court stated:
“I will start by pointing out that in light of the way in which this action has been brought, local authority X's obligation to fulfil the claim made by spouses A and B will be dependent upon the validity of the decision adopted by the Chief County Medical Officer, which matter must be decided by means of a preliminary ruling. As has already been noted, in the proceedings before the Supreme Court the local authority has withdrawn some of its objections to the decision, inter alia relating to the right of appeal and to the competence of the Chief County Medical Officer. The parties agree that the parents appealed against the decision of the local authority in due time on C's behalf pursuant to Section 2-3 second paragraph of the Municipal Health Services Act (Norway) and that the Chief County Medical Officer had full competence as an appellate instance, cf. Section 34 second paragraph of the Public Administration Act (Norway). I concur and will not go into the procedural questions that could be raised in the wake of the local authority's withdrawal of these submissions. A further question is whether the local authority was at liberty to neglect to comply with the decision of the appellate instance – in this case the Chief County Medical Officer – before it had been amended, if applicable by means of legal action, and, presumably, with the local authority as plaintiff. However, given the conclusion that I have reached I find no grounds to consider this issue in further detail.”
The Supreme Court did not need to rule on this question since it had found that the decision of the Chief County Medical Officer was valid.
II.2. Applicable domestic law
12. Under Norwegian law, local authorities are autonomous legal entities. In general terms, they are able to initiate legal proceedings and have proceedings brought against them.
A central feature of Norwegian administrative law is that in the main the State acts as the appeal body when local authority decisions on welfare services are appealed against by a citizen. If a citizen is not satisfied with a decision rendered by a local authority, he or she may ask that authority to review the matter, and then bring an administrative appeal before the state administration. The State’s decision is final and binding on the local authority.
According to the case-law of the domestic courts, appeals by local authorities requesting a re-examination or setting aside of the decision taken by the state are inadmissible, as local authorities do not have locus standi in such matters or because the judicial courts do not have jurisdiction in this field.
III. THE LAW
Concerning the alleged violation of Article 11 of the Charter
A. Position of the parties
13. The Norwegian delegation asks whether Norwegian legislation is compatible with Article 11 of the Charter insofar as it is impossible for a local authority, in particular cases, to have a state decision reviewed by an independent judicial body.
The Norwegian delegation raises four questions with regard to the four national judicial decisions quoted above (paragraphs. 8 - 11):
i. Do local authorities have the right to have state decisions reviewed if the state reaches a different conclusion from that of the local authority in an appeal in an administrative case?
ii. Do local authorities have the right to have the order reviewed?
iii. Do local authorities have the right to a legal review by the courts of the decisions adopted by the state in such cases?
iv. Does Article 11 of the Charter grant local authorities the right to have State-issued orders of this nature reviewed by the courts and, if applicable, should Article 11 be taken as meaning that it grants a right only to a judicial review, i.e. that local authorities must adopt a proactive approach by bringing action against the State claiming that the decision is invalid, or should Article 11 be understood as meaning that it also grants a right to preliminary review, i.e. that local authorities may adopt a passive stance by awaiting legal action by a private citizen and then pleading for judgment in its favour on the grounds that the decision adopted by the State is invalid?
14. The Norwegian Government, in its observations, considers that Article 11 of the Charter is complied with in Norwegian legislation.
Motion No. 19 (1988-89) on consent to sign and approve the Council of Europe’s European Charter of Local Self-Government of 15 October 1985 contains the following statement:
“Norwegian municipalities and counties have the right to bring a civil action before the courts. Norwegian law thus satisfies the requirements formulated in Article 10 [in reality, Article 11] of the Convention”.
In constitutional terms, local authority powers are delegated by the state.
The Government submits that the expression “their powers” contained in Article 11 of the Charter covers only the situation where local authorities are delegated exclusive authority. When the state administration acts as a body ruling on an administrative appeal against a local authority, and in other situations indicated in the complaint, the local authority does not have exclusive power and therefore Article 11 of the Charter is not applicable.
Article 11 of the Charter should be interpreted in the light of Article 8, which gives legitimacy to administrative supervision by the state over local authorities. Article 11 of the Charter should be interpreted restrictively.
Legal proceedings initiated by a local authority against a decision taken by the state administration in connection with an administrative appeal would be expensive and time-consuming, and therefore contrary to administrative efficiency and human rights. Local authorities have the right to make comments before the state administration takes its decision on an individual’s administrative appeal.
When the state decides on a dispute between two local authorities, it does so by means of an organ established by law, which is independent and equivalent to a court. Accordingly, this is a judicial remedy within the meaning of Article 11.
B. Assessment by the Group of Experts
15. Article 11 of the Charter, “Legal protection of local self-government”, provides:
“Local authorities shall have the right of recourse to a judicial remedy in order to secure free exercise of their powers and respect for such principles of local self-government as are enshrined in the constitution or domestic legislation.”
16. The Explanatory Report states further:
“By recourse to a judicial remedy is meant access by a local authority to:
a. a properly constituted court of law, or
b. an equivalent, independent, statutory body having the power to rule and advise on the ruling respectively, as to whether any action, omission, decision or other administrative act is in accordance with the law.
An instance has been noted in one country where, although administrative decisions are not subject to an ordinary appeal to a court, it is possible to have recourse to an extraordinary remedy called an application for reopening of proceedings. This judicial remedy, which is available if the decision is based on a manifestly incorrect application of the law, is in accordance with the requirements of this article.”
17. Paragraph 7 of Congress Recommendation 39 (1998) on the incorporation of the European Charter of Local Self-Government into the legal systems of ratifying countries and on the legal protection of local self-government states the following:
“The Congress, [...]
7. [...] asks the Committee of Ministers to send to the Contracting Parties to the European Charter of Local Self-Government the report referred to in point 5 of this Recommendation [the third report of the Working Group responsible for monitoring the implementation of the European Charter of Local Self-Government on the basis of the study drawn up by Professor Jean-Marie WOEHRLING, French member of the Committee of Independent Experts on the Charter, prepared by the rapporteurs, Ms Gaye DOGANOGLU (Turkey) and Mr Alan LLOYD (United Kingdom)] and adopt a Recommendation to be addressed to these same Parties including the following points:
a. the European Charter of Local Self-Government should not be regarded as a set of non-binding recommendations but as an international treaty with legal force establishing duties for the States that have ratified it and rights for the local authorities belonging to these states;
b. certain provisions of the European Charter of Local Self-Government, particularly Articles 3.2; 4.5 and 6; 5; 7.1 and 7.3; 8; 10 and 11, establish legal rules which, in spite of their general nature, must be regarded as being directly applicable and laying down actual obligations to do or refrain from doing certain things;
c. provisions of the European Charter of Local Self-Government which are not directly applicable because they simply require the states to achieve certain aims must be interpreted in the light of the monitoring of the implementation of the Charter carried out within the Council of Europe by the Congress of Local and Regional Authorities of Europe and be implemented under domestic legislation by means of positive measures taken a reasonable time after ratification;
d. it is essential to incorporate the European Charter of Local Self-Government into the domestic legal system by means of a formal act of incorporation in accordance with the rules governing the implementation of international treaties. The prior existence of domestic rules which seem to be in keeping with the principles of local self-government established in the Charter does not exempt the national authorities from this measure;
e. where domestic statutes and regulations on local authorities require interpretation, they must be interpreted in the light of the principles of the European Charter of Local Self-Government;
f. even when incorporation of the European Charter of Local Self-Government into domestic legislation implies the automatic repeal of domestic legal provisions which are incompatible with directly applicable Charter rules, provisions which are inconsistent with the Charter should be explicitly repealed;
g. statutes and regulations adopted after ratification of the European Charter of Local Self-Government and its incorporation into the domestic legal system must be presumed not to conflict with the rules contained in the Charter and be interpreted and applied accordingly;
h. the European Charter of Local Self-Government must be regarded as a legal instrument which evolves in line with the progress of local democracy; therefore, given that the European Charter of Local Self-Government itself does not provide for a system of legal monitoring of its implementation, the Contracting Parties must take account of the principles of interpretation laid down by the Congress of Local and Regional Authorities of Europe in the context of monitoring activities based on the Explanatory Report to the Charter;
i. states with a federal structure must ensure that, where federated entities are responsible for legislation on local authorities, they implement the Charter effectively by incorporating it into their own law in accordance with the principles referred to above;
j. in order to ensure full implementation of the Charter, it is essential to enable Charter provisions to be invoked before the courts. Article 11 of the Charter on legal protection of local self-government should be interpreted as a democratic guarantee of local authorities’ right to apply to an independent, impartial court to establish violations of the Charter and ensure respect for their rights.”
18. The report on “the incorporation of the European Charter of Local Self-Government in the legal system of ratifying countries and legal protection of local self-government”, CPL (4) 7 Part II, rapporteurs Ms Gaye DOGANOGLU, Turkey and Mr Alan LLOYD, United Kingdom, of 3 February 1998, states in Appendix I (Report prepared by Jean-Marie WOEHRLING, member of the Group of Independent Experts on the Charter):
The Norwegian system has only ordinary courts, but these have the power to review the lawfulness of administrative acts. The Norwegian local authorities do not, however, have a general right of administrative appeal against governmental decisions which have a direct impact on their financial or legal situation under the same conditions as individuals have such a right. Even though a possibility of challenging the state before the courts may exist, the local authorities' ability to obtain judicial monitoring of the state's supervisory decisions concerning their actions must be treated as a special case. The question arising is to what extent local authorities may challenge before the courts the steps taken by state bodies in the exercise of their official powers of administrative supervision of a local authority's decision. For example, can a local authority apply for judicial review of decisions taken by a governor following an administrative appeal against one of its acts? There is no precedent for such cases in the Norwegian legal system. It would be reasonable to think that under the principles of civil procedure, the local authorities cannot file such actions against the state. The same applies if the issue under dispute may have a considerable impact on the scope of local self-government within the meaning of the Charter. In its 23 April 1993 judgment, the Supreme Court of Norway refused to admit that a local authority had a legal interest to appeal to the court against a decision taken by the state amending the terms of an administrative act of the local authority during administrative review proceedings on a point which it had regarded as particularly important in the administrative procedure. This situation does not appear to conform to the Charter. By virtue of the Charter, local authorities should have access to the courts even in this kind of administrative matter. The recognition of such a remedy would involve the legislature so as it may review the state's supervisory structure over the actions of the local authorities.
With this exception, the local authorities have access to the courts and may be brought before the courts under the same conditions as other legal persons.
In addition, Norwegian law does not allow litigation on hypothetical questions or on the correct interpretation of a provision. An action is only admissible before the courts if the claim is a concrete one.
In the present Norwegian system, regulatory provisions may not be declared null and void. These provisions may only be disregarded if they are unlawful or cannot be interpreted in such a way so as to conform to the law or the Charter. However, in the event of incompatibility, the regulatory provisions override the Charter.
5. The question of the remedies available to local authorities against the review acts of higher authorities
The higher authorities of the state often have the power to review the acts of local authorities. Articles 8 and 11 do not exclude such a control but imply that it be limited, with exceptions, to the review of the legality of the acts of the local authorities. Moreover, the local authorities must have a right of appeal against these review decisions.
Nevertheless, in some states, this review goes beyond the review of legality and may thus violate local self-government. Under the Charter, such a review of expediency should be limited to cases where the decisions in question do not stem from the local authorities' own powers but from a power which, by nature, belongs to the higher authorities and has only been “delegated” to the local authorities.
Moreover, in some states, when the higher authority's review takes place in the framework of an administrative appeal available to individuals (see Norway, for example), the right to appeal the decision taken by the administrative appeals authority may not be challenged before the courts by the local authorities. This restriction of appeal does not seem to conform to Article 11 of the Charter.”
19. The Group of Experts notes that Norway signed the Charter and deposited the instrument of ratification on 26 May 1989 and that the Charter entered into force for Norway on 1 September 1989, in pursuance of Article 15 of the Charter.
When depositing its instrument of ratification, Norway did not restrict its obligations deriving therefrom to certain articles of the Charter, as provided for under Article 12 of the Charter, nor did it make any reservations or interpretative declarations.
In its observations, the Norwegian Government refers to a declaration contained in Motion No. 19 (1988-89) on consent to sign and approve the Council of Europe’s European Convention on Local Self-Government of 15 October 1985, to the effect that:
“Norwegian municipalities and counties have the right to bring a civil action before the courts. Norwegian law thus satisfies the requirements formulated in Article 10 [in reality, Article 11] of the Convention”.
When depositing its instrument of ratification of the Charter, Norway did not express in a reservation or declaration any legal desire to limit the applicability of the Charter solely to civil cases (thereby excluding administrative disputes). It is to be concluded, therefore, that at international level, Norway has not expressed any legal desire to this effect. Moreover, the observations presented do not raise any exception as to the applicability from this point of view of Article 11 of the Charter.
Accordingly, Norway is bound by the provisions of Article 11 of the Charter, with the scope and extent generally accepted by the States Parties and the Council of Europe.
20. The Group of Experts is of the opinion that the Charter is a living instrument, which can draw, mutatis mutandis, from the model provided by the European Convention on Human Rights, interpreted in the light of today’s circumstances.
In order to protect local self-government, the Charter must be interpreted in a dynamic way taking account of today’s circumstances.
In accordance with general legal principles, since the Charter’s aim is to protect local self-government, the texts establishing local self-government must not be interpreted restrictively but extensively. In contrast, any interference in local self-government must be interpreted restrictively.
21. Article 11 of the Charter establishes the legal protection of local self-government in the same way as Articles 6 and 13 of the European Convention on Human Rights establish the legal protection of human rights.
As these are two treaties adopted in the same international organisation – the Council of Europe – based on the same philosophy and values, the Group of Experts can, in interpreting Article 11 of the Charter, be guided by the interpretation made by the European Court of Human Rights of Articles 6 and 13 of the European Convention on Human Rights.
Accordingly, Article 11 of the Charter occupies a key position in the structure of the treaty, as it constitutes a fundamental guarantee for local self-government and expresses the principle of the rule of law in a democratic society.
The right to a judicial remedy, guaranteed by Article 11, entails access to a court or equivalent judicial body, which is established by law, enjoys full independence vis-à-vis other public authorities and is impartial vis-à-vis the parties to the case. It also requires the proceedings before this judicial body to be fair.
By its very nature, the right to a judicial remedy requires regulation by the state on the establishment of judicial bodies and rules of procedure. This right is not an absolute right, and allows for interference implicitly authorised by the text. However such interference, in terms of its nature or degree, must not breach the very substance of the right of access to a judicial body or limit this right to a disproportionate extent. Any interference must be provided for by rules which are accessible and foreseeable, must pursue a legitimate aim, must be necessary in a democratic society, ie they must meet a pressing social need, must be proportionate to the aim pursued, and detailed and compelling reasons must be given to explain the need for such interference.
A restrictive interpretation of Article 11 of the Charter, as requested by the Norwegian Government, would be contrary not only to local self-government, but also to the rule of law in a democratic society.
22. A literal and systematic interpretation of Article 11 of the Charter leads to the conclusion that it has a general scope.
From Articles 3 and 4 of the Charter, it is clear that local authorities have three types of powers: own (exclusive) powers, delegated powers and shared powers.
Article 8 of the Charter, relating to the administrative supervision of local authorities’ activities, establishes a legal regime which varies in line with the type of powers concerned, since it is only in connection with delegated powers that administrative supervision of local authorities is authorised.
In contrast, Article 11 of the Charter makes no distinction between the various types of powers. The expression “their powers” can under no circumstances be interpreted as restricting the scope of this article solely to the local authorities’ own (exclusive) powers. If this were so, in all other situations, local authorities would be deprived of any judicial protection, which is contrary to the spirit of Article 11 and the general rationale behind the Charter, which seeks to strike a fair balance between the higher-tier public authorities and local government.
For example, if one takes the view that Article 11 relates solely to local authorities’ own (exclusive) powers, this would lead to a situation in which the higher-tier administrative authority, in the absence of the guarantee of a judicial remedy, would fail to honour the obligation, enshrined in Article 8.3 of the Charter, for the administrative supervision – including with regard to delegated powers – to be kept in proportion to the interests it is intended to protect – a situation which would not be in keeping with the spirit of the Charter.
The Group of Experts cannot therefore accept the Norwegian Government’s argument that Article 11 of the Charter applies solely to local authorities’ own (exclusive) powers.
23. In the instant case, the Group of Experts considers that in general, Norwegian legislation and judicial practice grant local authorities locus standi, including the right to a judicial remedy. Consequently, in principle national law is, by and large, in compliance with the provisions of Article 11 of the Charter.
However, in certain situations, local authorities acting as public legal entities having public authority, are refused the right to take action against an administrative decision taken by the state administration.
Article 11 of the Charter has a general scope and establishes the right of local authorities to a judicial remedy, not only in private law disputes, acting as private law entities, but also in public law disputes (administrative proceedings), acting as public-law corporations. Clearly, this applies only in national legal systems where such a distinction is made.
It is true that in some national legal systems there has been and continues to be a general principle of public (administrative) law whereby a lower-level (subordinate) administrative authority may never take judicial action against a higher-tier (hierarchically superior) administrative authority, but this principle is hardly applicable for local authorities, to which the principles and guarantees of self-government apply. Local authorities are not hierarchically subordinate to central government (or regions) and they are subject only to administrative supervision (in whatever form) which is totally different from hierarchical administrative control.
24. With regard to the possibility in Norwegian law, in certain circumstances, for an individual, dissatisfied with a local authority decision to lodge an application with the same authority and then an appeal to a higher administrative authority against the solution put forward by the local authority, the Group of Experts is of the opinion that it is necessary to make a joint analysis of Articles 8 and 11.
Article 8 of the Charter, regarding administrative supervision of local authorities’ activities, makes no distinction between the different means of initiating reviews, namely whether they stem from a decision taken by the supervisory authority itself or from a referral by a third party or another authority. Consequently, Article 8 applies both where a review has been decided on ex officio by the supervisory authority and where the supervisory authority is ruling on an administrative appeal lodged by a private individual against a decision taken by an autonomous local authority (as in the present case). It recognises the right of states, in their national margin of appreciation, to decide on the procedures for initiating the supervision, including ex officio decisions or referrals by an interested third party.
The possibility for private individuals, granted in certain circumstances under Norwegian legislation, to lodge an appeal to a higher administrative authority against a decision adopted by a local authority, ties in with Article 8 of the Charter. Obviously, all the other requirements of the text must be complied with, including the nature of the administrative supervision (in principle, solely supervision to ensure compliance with the law) and the proportionality of such supervision.
At the same time, the exercise of administrative supervision, pursuant to Article 8 of the Charter, must not result in a situation in which the decision taken by the administrative supervisory authority falls outside the scope of the guarantee of a legal remedy enshrined in Article 11 of the Charter. Limitation of the administrative supervision of local authorities is a key aspect of local self-government and, consequently, it must extend to the guarantees provided by Article 11.
The conclusion must therefore be reached that decisions taken by the administrative authorities which have carried out administrative supervision (either ex officio or on referral by a third party), in pursuance of Article 8 of the Charter, are liable to judicial review by an independent and impartial court or other judicial body, in response to action initiated by the local authority in question, in accordance with Article 11 of the Charter.
Moreover, the Group of Experts does not share the Norwegian Government’s view that once a local authority’s decision is subject to an appeal to a higher administrative body, the matter in question no longer falls under the local authority’s own (exclusive) powers. If one were to follow this reasoning, once a local authority activity was subject to external administrative supervision (regardless of whether it was initiated by an ex officio decision or on referral by a third party), the sphere of activity ratione materiae would no longer fall under the own (exclusive) competence of the local authority, which would mean, ultimately, that local authorities might no longer have any own (exclusive) powers at all and that there would therefore be no more local self-government. In any event, the Group of Experts would like to reiterate its conclusion on the applicability of Article 11 of the Charter to all types of local authority powers (see above paragraph 22).
25. It is true, as the Norwegian Government maintains, that granting local authorities the right to a judicial remedy against a state administration decision on an appeal to a higher administrative authority lodged by a private individual against a decision by that local authority could prolong the procedure and might increase costs.
However, the Group of Experts cannot concur with the Norwegian government’s submissions in reply, according to which granting local authorities the right to judicial action against state decisions would lead to a lack of administrative efficiency and a violation of human rights (particularly the right to have one’s case heard within a reasonable time).
First of all, local self-government, in the Council of Europe member states, is a fundamental component of a democratic society. In its turn, Article 11 of the Charter is important not only for local self-government as a dimension of a democratic society, but also for the rule of law.
The conclusion is the same with regard to the state’s interest in ensuring the efficiency of administrative action, which should not be invoked against local self-government.
It was the Norwegian state’s choice, in certain cases, to adopt a procedure whereby a private individual who believes himself or herself to have been wronged by an act of a local authority must first apply to the same authority, and then lodge an appeal to a central government authority. Local authorities cannot be deprived the right to a judicial remedy against the solution reached by the central government authority simply on the grounds that this would make the procedure lengthy and too costly for the private individual, thereby violating human rights (particularly the right to be heard within a reasonable time). There is nothing preventing the national authorities from dispensing with the application to the local authority that had initiated the act in question, and/or the appeal to a higher administrative authority, or from retaining them. The decision remains within the national margin of appreciation, provided that this complies with the state’s international commitments, in terms of both human rights (for the private individual) and local self-government (for local authorities).
26. Another situation concerns the solution to a dispute between two local authorities (or between a local authority and a private individual), reached by a central government administrative body and which the local authority in question is unable to challenge before the courts.
The Group of Experts cannot share the Norwegian Government’s view that Article 11 is fully complied with, because the dispute began between two local authorities and is resolved by a central government authority, which is neutral in respect of the dispute, thereby complying with the requirements of Article 11 of the Charter.
Article 11 of the Charter does not limit its scope merely to a situation where the powers or autonomy of a local authority are violated by central government or a regional authority, ie from a higher-tier authority. The text makes no distinction, and consequently a local authority has the right to a judicial remedy against any legal entity that violates its powers or autonomy, including against another local authority or a private individual.
It is true that in a dispute between two local authorities (or between a local authority and a private individual), the state is in principle neutral. However, a situation in which an appeal by a local authority brought before a central government administration against another local authority can be equated with a judicial remedy cannot, as the Norwegian Government claims, be considered to comply with Article 11 of the Charter.
The mere fact that the state administration may be neutral (impartial) in a dispute between two local authorities does not transform it into a court or other judicial body (the guarantee of independence is clearly not satisfied). Furthermore, the right to a judicial remedy presupposes that the procedure is fair and offers guarantees such as adversarial proceedings, a public hearing, equality of arms, the rights of the defence and reasoned grounds given for the solution. The Norwegian Government has presented no argument along these lines, but has simply asserted that the local authority has the right to submit its comments before the state administration in question reaches a decision on the appeal.
Accordingly, as was just asserted, the appeal before the state administration in a dispute between two local authorities (or between a local authority and a private individual), cannot be regarded as a judicial remedy within the meaning of Article 11 of the Charter. The decision delivered by the state administration must subsequently be open to a judicial remedy, in accordance with Article 11 of the Charter.
27. The procedural arrangements for exercising the right to a judicial remedy fall within the national margin of appreciation. States parties to the Charter are, in principle, free, subject to monitoring by the Congress, to arrange national procedures so as to give full effect to the provisions of Article 11 of the Charter.
The text of Article 11 of the Charter does not stipulate any specific procedure, provided that local authorities have the right to a judicial remedy, ie a real and effective – and not theoretical or illusory – right to a court or other judicial body.
28. The Group of Experts notes that the fact that local authorities are unable to lodge an appeal and that the national courts do not have jurisdiction to decide on legal proceedings initiated by local authorities challenging certain state administration decisions (decisions on applications to a higher administrative authority lodged by private individuals against the acts of local authorities, decisions on disputes between local authorities, and other decisions) constitutes unnecessary and unconvincingly justified interference in the right of local authorities to have access to a court or another judicial body, which is an integral part of the right to a judicial remedy guaranteed by Article 11 of the Charter.
The interference in question therefore concerns the very essence and existence of the right to a judicial body; this right is therefore emptied of all substance.
29. The Group of Experts feels duty bound to stress the fact that doubts as to the compatibility of Norwegian legislation with Article 11 of the Charter were expressed back in 1998 in the report on “the incorporation of the European Charter of Local Self-Government in the legal system of ratifying countries and legal protection of local self-government”, CPL (4) 7 Part II of 3 February 1998, based on the study by Professor Jean-Marie WOEHRLING, French member of the Committee of Independent Experts on the Charter and drafted by the rapporteurs, Ms Gaye DOGANOGLU, Turkey and Mr Alan LLOYD, United Kingdom, which served as the basis for Congress Recommendation 39 (1998) on the incorporation of the European Charter of Local Self-Government in the legal system of ratifying countries and legal protection of local self-government (see above paragraph 18 ).
30. In conclusion, the Group of Experts finds that the Norwegian central government and courts have not brought domestic law fully into line with Article 11 of the Charter.
FOR THESE REASONS, THE GROUP OF EXPERTS:
Is of the opinion that Norwegian legislation, as interpreted by the courts, cannot be regarded as being entirely in compliance with Article 11 of the European Charter of Local Self-Government in that it does not give local authorities the right to a judicial remedy – in order to secure free exercise of their powers and respect for such principles of local self-government as are enshrined in domestic legislation – against decisions taken by the state authorities, particularly where such decisions are taken following an administrative appeal against a local authority against decisions by the state authorities ordering local authorities to pay the costs of private parties in cases of disputes between local authorities.