CPR (10) 2 – Part II1 - Draft European Charter of Regional Self-Government : progress of work for its adoption as an international Convention (29/04/03)

Rapporteur: Peter RABE (Germany)

EXPLANATORY MEMORANDUM

Introduction

1. On 7 June 2002 at its 9th Plenary Session the Congress, having before it a proposal from the Chamber of Regions and basing its response on the report drawn up by Mr RABE (Germany), adopted Resolution 146 (2002) on the draft European Charter of Regional Self-Government. The purpose of the report was to present the action taken by the Committee of Ministers on CLRAE Recommendation 34 (1997) and review the discussions concerning the draft European Charter of Regional Self-Government.

2. The CLRAE Resolution was adopted in anticipation of the discussions of the European Ministers responsible for Local and Regional Government at the Helsinki Conference from 27 to 28 June 2002, who were to state a position concerning the legal status - convention or recommendation - to be conferred on the Charter of Regional Self-Government. Accordingly, Resolution 146 (2002) emphasised a distinct preference for a European convention.

3. In order to encourage the adoption of a European convention in the sphere of regional self-government, the Bureau of the Congress decided at its meeting on 7 February 2003 to instruct the Bureau of the Chamber of Regions to draw up a Report on the drafting status of the European Charter of Regional Self-Government and gave Mr RABE (Germany), Vice-President of the Congress, the rapporteurship.

4. This report sums up the various phases of the discussions held within the Council of Europe and also the European Union since the adoption of Resolution 146, with bearing on the subsequent development of the draft European Charter of Regional Self-Government. The report is divided into three parts followed by conclusions:

Outcomes of the Conference of European Ministers responsible for Local and Regional Government (Helsinki, 27 and 28 June 2002);
Actual progress of work relating to the Charter of Regional Self-Government in the bodies of the Committee of Ministers;
Strengthening of the standing of regions in the European Union – current developments.

I. Outcomes of the Conference of European Ministers responsible for Local and Regional Government (Helsinki, 27 and 28 June 2002)

5. The objective of the Helsinki Ministerial Conference, entirely devoted to the theme of regional self-government, was to decide whether the shared concepts and the common principles of regional self-government should assume the form of a convention (a legal text with binding force) or a recommendation (a legal instrument of non-binding character). The closely contended debates held during the conference between the backers of a convention and the backers of a recommendation did not allow an agreement to be reached.

6. Nonetheless, the Ministers achieved a consensus on a series of guiding principles in respect of regional self-government, and these may be regarded as a first constructive step in the discussions on a future binding legal instrument. Thus the final declaration of the Conference2 sets out a number of principles and considerations endorsed by all participants as to the value and the effectiveness of regional self-government, and lists the issues that any legal instrument on regional self-government should address if it is to be capable of acceptance by the member states.

7. Bearing in mind the objective of co-ordinating the prospective Convention on Regional Self-Government with the provisions of the European Charter of Local Self-Government, it was proposed to contemplate the inclusion of a provision in the future convention under which states so wishing would be granted the option of confining themselves, in the area of regional institutions, to the legal guarantees embodied in the European Charter of Local Self-Government.

8. At the conclusion of the Conference, the Ministers recommended that the Committee of Ministers instruct the Steering Committee on Local and Regional Democracy (CDLR) to prepare different legal instruments (a draft convention and a draft recommendation) on regional self-government in Europe, corresponding to the proposals put forward during the conference, taking into consideration on-going experience in the member states, and meeting the need to establish an appropriate link with the European Charter of Local Self-Government (see Appendix I).

9. Such being the case, the Conference ended “in status quo”, and it was agreed that the texts drawn up by the CDLR be re-examined in 2004 at a future ministerial conference in Budapest.

II. Actual progress of work relating to the Charter of Regional Self-Government in the bodies of the Committee of Ministers

1. Committee of Ministers decision of 10 October 2002 to assign new terms of reference to the Steering Committee on Local and Regional Democracy (CDLR)

10. In line with the Helsinki Declaration, and deferring to the basic concepts of regional self-government accepted as a whole by the European Ministers responsible for Local and Regional Government, the Committee of Ministers at its meeting on 10 October 2002 assigned new terms of reference to the CDLR instructing it to prepare drafts of different types of legal instruments on regional self-government (see Appendix II).

2. Results of the CDLR’s 30th meeting (25-27 November 2002, Strasbourg)

11. At its meeting from 25 to 27 November 2002, the CDLR discussed the working arrangements and methods for carrying out the terms of reference received from the Committee of Ministers.

12. In pursuance thereof, the CDLR assigned its Committee of Experts on the Framework and Structure of Local and Regional Government the following tasks:

- to assist the CDLR with the completion of the terms of reference given to it by the Committee of Ministers to elaborate drafts for legal instruments of different types on regional self-government;
- and in particular, with a view to preparing a full discussion by the CDLR at its meeting in May 2003, to examine and develop the first drafts for legal instruments of different kinds on regional self-government, prepared by the Secretariat with contributions by member states.

13. These terms of reference were adopted by the Ministers’ Deputies at their 828th meeting on 13 February 2003.

14. The CDLR decided to review the results of its work at its next meeting from 12 to 15 May 2003. The work in progress is intended to arrive at definite proposals both for a recommendation and for a convention on regional self-government. Several CDLR member states have stated their readiness to participate in the drafting of one text or the other.

15. With a view to effective preparation of the CDLR’s plenary meeting (12-15 May 2003, Strasbourg), two informal meetings of convention advocates and recommendation supporters were organised concurrently late in January 2003. The German Minister of the Interior convened a meeting in Berlin for representatives of the countries in favour of a European convention on regional self-government, in order to prepare a draft for a convention of this kind. Meanwhile, the United Kingdom Government invited the interested countries to a preliminary meeting in London to prepare a draft recommendation.

3. Meeting of the Committee of Experts on the Framework and Structure of Local and Regional Government (LR-FS) (17-18 March 2003, Strasbourg)

16. The Committee of Experts on the Framework and Structure of Local and Regional Government met on 17 and 18 March 2003 for the first discussion of the texts drawn up by the two groups of representatives of the countries respectively supporting a convention or a recommendation.

17. During the meeting, the Secretariat presented two working papers corresponding to the two variants. It summarised as follows, in a memorandum of 6 March 2003, the main features of the two texts:

Working paper A concerns the preparation of a draft Recommendation on Regional Self-Government and contains, notably, the document resulting from the London meeting. Given the existence of this proposal, the Secretariat has refrained from preparing on its own account a full draft Recommendation. Having only received this document on 3 March, the Secretariat was not in a position to review it before transmitting it to the LR-FS and CDLR members. However, it will do so before the LR-FS meeting and may submit to the meeting of the LR-FS any questions it deems relevant.

Working paper B contains elements for the elaboration of a draft Convention on Regional Self-Government. Many of the elements in this paper were included in the document prepared for the meeting in Berlin, as stated above. However, it should be stressed that the draft text is a Secretariat document prepared on its own responsibility. The Berlin meeting and the delegations present there have not submitted proposals to the CDLR/LR-FS but may of course still do so.

4. Results of the 31st meeting of the CDLR (12-15 May 2003, Strasbourg)

18. Acting on spontaneous initiatives taken by groupings of states, the CDLR, assisted by a committee of experts, examined various preliminary drafts of a convention and a recommendation at its last meeting (Strasbourg, 12-15 May 2003).

19. Subsequent to these initial discussions, the terms of reference assigned by the Committee of Ministers to the representatives of the governments in the CDLR would require them to complete the preparation of the draft convention and the draft recommendation by the end of 2003. On that basis, the Committee of Ministers will be able to call for an opinion on the texts at the next Conference of Ministers of the Council of Europe responsible for Local and Regional Government, expected to take place in Budapest during 2004.

III. Strengthening of the status of regions in the European Union – current developments

1. European Parliament

20. The institutional development of the regions and of their legal status has continued to progress in recent months both at member State level and in the supranational structures of the Council of Europe and the European Union. On that score, the Rapporteur makes particular reference to the report on “The role of regional and local authorities in building Europe” (Napolitano report), adopted by the European Parliament on 14 January 2003. Despite the contentions over several key issues and the divergence of views, especially on the question of granting regional authorities vested with legislative powers the right to apply to the Court of Justice of the European Communities (CJEC), the Parliament adopted, by a substantial majority, a resolution containing several elements calculated to strengthen the administrative independence of the regions. As to the regions’ right to petition the Luxembourg Court, the European Parliament Resolution fell short of the proposals made by the Rapporteur M. Giorgio NAPOLITANO, President of the Committee on Constitutional Affairs, to enable the regions to lodge applications through the agency and on the responsibility of the State.

21. Thus for many regions the solution proposed at present does not afford an extension of the powers already secured at the domestic level as far as participation in EU affairs is concerned.

2. European Convention

22. This impression was confirmed during the debate held by the Convention on the regions on 6 and 7 February 2003. Attention should be drawn specifically to the following considerations, intended to enhance the status of the regions in the Treaties and possibly capable of gaining the support of a majority of parliamentarians:

the reference to local and regional authorities in Article 9, paragraph 6, of the draft Convention;

23. There were several isolated calls for the incorporation of the European Charter of Local Self-Government into Community law, but this appeared not to be capable of gaining majority support. It must be emphasised that this proposal also appears in the Napolitano report adopted by the European Parliament.

24. Likewise, the importance of the connectivity principle was emphasised – at least in broad outlines, via a detailed assessment of the financial implications of acts of Community law at local and regional level – although no specific measures ensued.

25. For further particulars of the arguments put to the Convention, reference is made to documents Conv. 518/03 and Conv. 523/03 and to the appendix to the latter document containing concrete proposals from the European umbrella organisations representing the regions in support of various demands made by them.

26. The conclusions to be drawn from this debate, from the point of view of the Rapporteur, are as follows:

27. It is not certain that the amendments to the Treaties proposed by the European Parliament in favour of regional and local authorities will end up being adopted. The course of debates in the Convention would indicate that in the future European constitutional text some reference to the role of local and regional authorities could be made in the preamble, rather than in binding legal provisions. The Preamble to the Charter of Fundamental Rights contains a relevant form of words which could be relied on by way of a compromise. Whether a clear-cut extension of regions' rights of participation in the Council of Ministers can be secured seems questionable to the Rapporteur; the present system is relatively flexible as thing stand. The regions will certainly not obtain the right of individual petition before the European Court; at best it will be indirect, via the member states or the Committee of the Regions. And finally, the institutional architecture of the European Union will not undergo any fundamental modifications in the regions’ favour, seen as desirable by some of the participants in the European Parliament debate on 13 January 2003 in the interests of the fundamental principles of democracy, proximity to citizens and subsidiarity.

28. Even so, these debates make it clear that the theme of involving the regions in the process of European integration can no longer be bypassed; it is of some significance in the debate on reform of European institutions, where the interests at stake are the effectiveness of the enlarged Union as opposed to subsidiarity and regional and local participation.

29. Against this backdrop, at present the Rapporteur sees no reason whatsoever for renouncing or fundamentally altering the draft European Charter of Regional Self-Government. On the contrary, this draft charter has probably taken on greater significance than previously. It is very much in our interest for the Charter to be given a legal status that carries a high degree of binding force.

30. Emphasis should firstly be placed on the obvious substantive connection between the charters of local and regional self-government. In point 3 of its resolution the European Parliament expressly called for the European Charter of Local Self-Government (of the Council of Europe) to be incorporated into the acquis communautaire as a base reference for local democracy. The European Parliament clearly perceives a gap in Community law here.

31. Furthermore, the Charter of Regional Self-Government ought to be designed to appeal to the very people who advocate giving the member states complete freedom in the area of internal regionalisation. That is indeed the crux of the Charter: member states wishing to institute regions should have the guidance of the Charter’s core provisions, but no state is to be obliged to set up regions. To date, this has been the central misunderstanding underlying the position of those who oppose the Charter’s adoption as a Council of Europe convention.

32. It should be further pointed out that on the very sensitive issue of special treatment for regions with legislative powers, the Charter of Regional Self-Government adopts a position which certainly matches that of most European Parliament members. In the Rapporteur’s view, where there is any doubt, consolidating the status and rights of regions as a whole, irrespective of their constitutional forms and powers, must take precedence over catering for individual interests. The draft Charter does not assign a special status to regions with legislative powers, and consequently they must uphold their own particular interests independently of the Charter. All the debates of recent years on the role of the regions in Europe clearly show that agreement is more readily reached in the first instance on the basic principles for granting the same package of minimum powers to all regions alike than on establishing special and more developed powers for certain types of region. Nevertheless Article 21 of the CLRAE’s draft Charter did afford member states the necessary flexibility to accommodate more extensive intrastate participation rights reflecting the respective degree of autonomy constitutionally secured.

33. It is this dual function of the draft Charter that makes it so attractive: it defines the general frame of reference for the fundamental powers to be granted to all regions and at the same time opens up areas of latitude for differentiation and organisation so that specific regional interests according to types of region may be taken into account. Hence the importance of defending our draft from any measure liable to water down or sideline its legal effect.

IV. Conclusions

34. Having regard to the current developments in the bodies of the European Union, and regardless of the tangible progress of work within the CDLR system, the following principal lines of action could be proposed to the Congress for the promotion of the draft European Charter of Regional Self-Government.

35. The Congress should continue to press for the adoption by the Council of Europe of a regional charter with the legal status of a convention. Given the ratios of majority opinion at the Ministerial Conference in Helsinki regarding the question of the text's legal status, the Rapporteur does not see any reason to abandon these claims for the attainment of a Charter. Besides, the Rapporteur underlines that at present there is still sufficient time in hand to explore all possibilities for achieving the desired solution, before the next Ministerial Conference in Budapest in summer 2004.

36. It is important to continue following, in the capacity of an observer, the work proceeding in the CDLR framework until the end of 2003 in order that the final draft of the European convention on regional self-government may at length be accepted by the Committee of Ministers and opened for signature by member states. The Congress should be kept regularly informed of progress with consultations and be able to respond in an appropriate manner, taking into consideration the legal form advocated by the Congress.

37. The Congress must express its disapproval regarding the adoption of a recommendation on regional self-government in Europe, since a text of this kind would lead to an institutional imbalance in European law by establishing a hierarchy of international norms as between local authorities and regional authorities.

38. Conversely, the proposal for the adoption of a European convention on regional self-government (as set out in the Committee of Ministers document relating to the Helsinki Conference3) is viewed by the Rapporteur as representing a legal compromise capable of furthering the discussions in progress at intergovernmental level and thus aiding the acceptance of a European convention on regional self-government alongside the European Charter of Local Self-Government already in force.

39. On that subject, the Rapporteur deems it expedient to make the linkage between the present Charter of Local Self-Government and the future regional Charter as transparent as possible. If the member states are offered models that reflect their respective needs as regards determining the organisation and the substance of regional structures. Consequently, the Rapporteur will certainly be more inclined to accept the convention option. The Rapporteur therefore strongly back proposals to match the scope of the Charters of local and regional self-government as far as possible and to allow member states considerable flexibility in subscribing to the Charter or parts of it that correspond to the realities of local and regional self-government in their territory.

40. In this context, the introduction into the new convention granting those states which so wish the possibility of confining themselves, where their regional institutions are concerned, to the legal guarantees contained in the European Charter of Local Self-Government is an apposite response to the criticisms made by those states still opposed to the adoption of the prospective convention. It is appropriate to recall that this solution is made feasible by the existence of Article 13 of the European Charter of Local Self-Government4.

41. On the basis of this article in conjunction with the suggested provision to be included in the new European convention on regional self-government, the fruitful harmonisation between the Convention and the European Charter of Local Self-Government which were correctly pinpointed by some national delegations at the Helsinki Conference5 would be guaranteed.

42. It would therefore be possible to satisfy both the states that wish to keep their regional institutions within the legal guarantees contained in the European Charter of Local Self-Government and those that want specific international guarantees for their regional institutions, contained in a European Charter of Regional Self-Government of a treaty nature.

43. Considering this proposal, where their regional institutions are concerned, Council of Europe member states aspiring to the furtherance through international law of their internal regional democracy should have alternatives, namely:
ratifying the European Charter of Local Self-Government (on the basis of Article 13);
ratifying the new European convention on regional self-government;
ratifying the European Charter of Local Self-Government in respect of specific regions, and ratifying the new convention on regional self-government in respect of other regions because of their specific status; if appropriate, still other regions would be excluded from the scope of these two instruments.

44. In the light of the foregoing, the European Union member States concerned should take into account these proposals in the discussions on the future constitutional treaty of the European Union.

45. It would be desirable to examine these issues afresh at the next Institutional Session of the Congress (Strasbourg, 24-26 November 2003), in order that the Bureau, in consultation with the Institutional Committee of the Chamber of Regions, keep abreast of the intergovernmental discussions relating to this report.

46. The members and the national delegations of the Congress should ask their respective government to support the adoption of a European Charter of regional self-government in the form of a Convention, by taking into account the proposals contained in the present report.

Appendix I

THE MINISTERS ATTENDING THE 13TH SESSION OF THE CONFERENCE OF EUROPEAN MINISTERS RESPONSIBLE FOR LOCAL AND REGIONAL GOVERNMENT, MEETING IN HELSINKI ON 27-28 JUNE 2002:

Express the opinion that:

18. the Council of Europe should aim to adopt a legal instrument on regional self-government that

is based on the core concepts and principles already drawn up by the CDLR (2);

stipulates expressly that every state has the right to establish regional authorities or not;

provides member states with a degree of choice in order to take account of specific characteristics of their regional self-government system;

ensures a harmonious co-existence with the European Charter of Local Self-Government (ECLSG);

Recommend to the Committee of Ministers:

19. to develop and reinforce the work of the Council of Europe in the field of local and regional democracy, including by facilitating the sharing and promotion of experience with regional self-government;

20. to continue and improve the dialogue at European level between governments and local and regional elected representatives as brought together in the CLRAE;

21. to give terms of reference to the Steering Committee on Local and Regional Democracy to elaborate drafts for legal instruments of different types, having regard to the proposals made during the Conference and to the developing experiences of member states, and addressing the need for an appropriate relationship with the ECLSG.

Appendix II

13th Session of the Conference of European Ministers responsible for Local and Regional Government (Helsinki, 27-28 June 2002) - Report by the Secretary General (CM/Dec/Del (2002) 808/10.2 and 809/10.2, CM (2002) 125)

Decisions

The Deputies :

1. took note of the Helsinki Declaration on Regional Self-Government, adopted by the 13th session of the Conference of European Ministers responsible for local and regional government (Helsinki, 27-28 June 2002), as it appears in Appendix III to CM (2002) 125;

2. agreed to communicate it to the Secretary General of the United Nations, to the European Union, the OSCE and the OECD;

3. having heard the statement of their Rapporteur on Local and Regional Authorities (RAP-LOC) at the present meeting, who recalled the ideas and positions expressed and the proposals submitted before and during the Helsinki Conference, as set out in the Secretary General’s report (CM (2002) 125)6, assigned ad hoc terms of reference to the Steering Committee for Local and Regional Democracy (CDLR) as they appear at Appendix 7 to this volume of Decisions;

4. took note of the report of the Secretary General as it appears in CM (2002) 125, as a whole, and agreed to communicate it to the CDLR.

Appendix III

Appendix 7

(Item 10.4)
Decision No. CM/850/10102002
Ad hoc terms of reference

1. Name of the Committee
Steering Committee on Local and Regional Democracy (CDLR)

2. Source of the terms of reference
Committee of Ministers

3. Completion date
31 December 2003

4. Terms of reference
To elaborate drafts for legal instruments of different types on regional self-government.
To this end, the CDLR shall:

In order to fulfil these terms of reference, the CDLR can establish working parties and/or have recourse to a consultant.

5. Name of the Committee(s) to which these terms of reference are communicated for information

 

1 Unanimously approved by the Bureau of the Chamber of Regions on 28 April 2003 :

2 Document of the Helsinki Conference MCL-13 (2002) 8 final

3 CM (2002) 125, 21 August 2002

4 “(…) each Party may, when depositing its instrument of ratification, acceptance or approval, specify the categories of local or regional authorities to which it intends to confine the scope of the Charter or which it intends to exclude from its scope. It may also include further categories of local or regional authorities within the scope of the Charter by subsequent notification to the Secretary General of the Council of Europe.”

5 See in particular the document drawn up by the UK Delegation for the Helsinki Conference – paragraph 18, and the position stated by the French Delegation with reference to the ability of all local and regional authorities to avail themselves, on the same terms, of the principles of the “local self-government” within the meaning of the European Charter of Local Self-Government.

6 Note in particular, in the following paragraphs (page 2 of CM (2002) 125): “The second working session subsequently saw a continuation of the discussion on the nature of the instrument to be adopted by the Council of Europe on regional self-government and some new suggestions were made as to a possible convention, notably that it could take the form of an optional protocol to the European Charter of Local Self-Government (proposed by the Chair of the Conference) or that a provision could be introduced in the new convention granting those states which so wish the possibility of confining themselves, where their regional institutions are concerned, to the legal guarantees contained in the European Charter of Local Self-Government (Italian proposal). Discussions also focused on the final resolution that could be adopted at the conference. An earlier proposal by the United Kingdom to adopt a solemn declaration on regional self-government had met with general support and led to the Chair submitting to the Conference a draft text for a “Helsinki Declaration on Regional Self-Government”, which would replace the customary conference resolution and include a reply to the question submitted to the Conference by the Committee of Ministers.”