Rapporteur: Mr Jean GUINAND (Switzerland)
The preliminary draft recommendation on local law/special status, the text of which has been transmitted to the Congress (doc. CG/GT/CIV (5) 7), and which the Standing Committee is required to adopt, was drawn up by the Working Group on Federalism, Regionalism, Local Autonomy and Minorities, chaired by Mr Kolumban, of Romania.
The aforementioned working group had been asked by the Congress to prepare a draft recommendation on the problems of minorities. The draft was drawn up by the working group and put before the Congress at the 1998 session (Recommendation 43 (1998) and Explanatory memorandum CG (5) 11, Part II).
In parallel with this activity, the working group was asked to carry out a proposed comparative study of local law so as to obtain a better overview of the concept of local law. To this end, the working group gave appropriate instructions to Mr Jean-Marie Woehrling, President of the Central Commission for the Navigation of the Rhine. He submitted to the group a study entitled "Local law as an instrument for strengthening territorial autonomy and for managing the social and cultural diversity of certain territories" (doc. CG/GT/CIV (5) 3), a very full and noteworthy document in which he defines local status and places it within the typology of various categories of territorial autonomy, as well as analysing the different forms of special status. He goes on to describe the development of the concept of local status throughout Europe, giving examples of the various forms of local status or system. He makes a distinction between residual local legal systems, the processes by which autonomy is introduced and asymmetrical forms of territorial administration.
On the subject of residual local legal systems, the writer illustrates the position by referring to the local law which exists in the Alsace and Moselle region, the result of these territories' successive affiliation to Germany and to France. He emphasises that this local law remains national law of limited geographical application, making it very much a system of law which is merely "in suspension". As a solution, Mr Woehrling suggests that it is for the elected bodies of the territories concerned to alter and develop such local legislation, enabling regional culture and identity to be preserved.
Special status exists where there is no wish to introduce a federal system, but where the state has nevertheless granted special autonomous status to certain local bodies, giving these their own powers in certain fields.
Lastly, asymmetrical forms of territorial administration enable self-governing powers to be given to a greater or lesser extent to local bodies, but with the subject-matter and degree of that autonomy being varied according to the territory concerned. The example quoted by Mr Woehrling is Spain, with particular reference to Catalonia, the Basque country and Galicia.
After analysing the various questions raised by the use of special status, Mr Woehrling concludes his study by expressing the hope that the Congress will help to legitimise the use of these various forms of special status, which enable account to be taken of specific social or cultural situations.
The draft recommendation put forward here is thus intended to meet this concern. The working group therefore proposes that the Congress affirm the need to recognise the special legislation of certain territories capable of reflecting their history, location, culture and particular interests. It is the prime intention that the draft recommendation, taking account of the findings of Mr Woehrling's study, and referring to the texts relating to local and regional self-government and national minorities already adopted by the Congress and the Council of Europe, should enable national governments' attention to be drawn to the role which local law and special status may and must play, both in enabling greater account to be taken of certain local and regional characteristics and as possible ways of solving the growing numbers of ethnic or cultural conflicts unfortunately present in Europe.
The draft recommendation concludes with a wish for the Committee of Ministers and the governments of Council of Europe member states to have greater recourse to the Congress for the drawing up of opinions and proposals on the introduction or preservation of local law or forms of special status, with the aim of seeking solutions to current conflicts in Europe.
The draft recommendation was unanimously adopted by the Working Group on Federalism, Regionalism, Local Autonomy and Minorities at its meeting in Strasbourg on 16 March 1999.
APPENDIX - Local law as an instrument for strengthening territorial autonomy and for managing the social and cultural diversity of certain territories
Study submitted by Jean-Marie WOEHRLING, Chairman of the Central Committee for Rhine Navigation
Outline for the study
The terms local law and special status are used as synonyms in this study. They designate a specific form of legal administration for certain issues in part of a state’s territory. This practice differs from federalism or decentralisation in that it is applicable only within a fixed territory and may not include law-making or local administrative powers.
After clarifying the definition and situating this model within the typology of various categories of territorial autonomy, the study analyses the various forms of special status:
- residual specific legislation
- specific forms of regional status
- asymmetrical territorial administration.
Examples of these different forms are provided to bring out their distinctive features.
The study then analyses the advantages and disadvantages of the local law/special status tradition. In particular, it examines the compatibility of this kind of system with the objectives of legal clarity and simplicity, of equality before the law and of respect for individual rights.
In conclusion, the use of special legal status seems justified to protect the social or cultural diversity of certain regions, so long as it is combined with various measures to guarantee a high degree of legal and political integration with national norms.
This study is based on the local law of the Alsace and Moselle region. This legal system, unique to three French départements, may seem a random historical by-product, an institutional curiosity, paradoxical in a centralised state but stripped of importance or exemplary value. Although its quaintness makes it an interesting legal phenomenon, it cannot be drawn on in the search for legal remedies such as federalism or regionalism that could ensure the protection of regional and minority cultures.
This understanding of local law, as an anecdotal phenomenon, may be strengthened by the replies to the questionnaire on this issue sent out by the CLRAE Secretariat. The vast majority either indicated the absence of local legislation in the country or region concerned, or referred to the regulations on the established phenomena of federalism or regionalism. The examples of genuine “local law” concerned only insignificant or declining situations.
This analysis is correct if one accepts a narrow understanding of local law. However, the question assumes a much wider significance if local law is understood in the sense of special status, that is, as a derogation from ordinary regulations. This study will examine the characteristics of the situations where special legal status exists.
Definition of the concepts of local status and local law
The concept of local status or local law has not yet been systematically analysed in such a way as to distinguish it clearly from other concepts. It is confused or assimilated with other mechanisms of local self-government (the regulation-making powers granted to local authorities, local tradition, etc).
In order to clarify the concept, it is necessary both to fit it into the typology of various categories of territorial administration, and to try to classify the various forms of local status.
a. The position of local status in the typology of categories of territorial administration
In order to understand the specific nature of the special status or local law mechanism, it is useful to situate it in the typology of the various categories of territorial administration.
- centralisation: this is the system whereby decisions are taken by a central or national government body. Thus, in non-federal states, law-enactment is centralised at the level of national parliaments. This kind of system does not preclude the existence of legislation that is applicable in only a part of the national territory;
- decentralisation: for the central government administration, this involves transferring certain powers of initiative or decision-making to the local representatives of this administration: the decision is taken locally, but by employees of central government, which retains control;
- devolution: here, powers are delegated by legislation to independent local authorities. Decision-making is thus in the hands of elected representatives in local institutions, who are not subject to the hierarchical power of the state administration. However, the scope of these delegated powers is decided by the national parliament, which may also impose performance conditions and a review of legality;
- federalism: the powers conferred on local authoriites belong to them in their own right by virtue of the Constitution and are therefore not delegated by the national parliament. The exercise of this power is subordinate only to judicial review. A major aspect of federalism is the power to enact autonomous legal rules (federated legislation).
Local law or local status may correspond to one of these forms of territorial administration, but with the difference that it has been introduced in a specific form to part of the state territory, which is therefore administered differently from the rest of the country. Territorial administration is thus asymmetrical.
Let us consider the two most frequently used mechanisms for strengthening local self-government, namely federalism and devolution: in principle, these two mechanisms are applied in a general and identical manner throughout the national territory. The same federal or devolved status applies to all the federal or decentralised institutions: the division of powers is identical, and although each autonomous body may use its powers differently, in the country as a whole a particular issue is dealt with either globally or locally.
Compared to these “classic” forms, local law or local status represents an unusual method of administrating a certain level of territorial self-government: whatever the general method of state administration (centralised, decentralised or federal) in use elsewhere, a particular region is assigned a special system that involves the application of particular rules within it. This practice, known as “special status”, forms the subject-matter of this study.
b. The different forms of special status
Special status may correspond to three very different situations (although a seamless transition from one to the other is always possible).
1. Residual special legislation
This corresponds to the situation where a territory which was formerly under a separate administration is not completely integrated. This often concerns national legislation with limited geographical application.
2. A process of gaining autonomy
A territory is granted special legal or administrative autonomy on account of its specific characteristics. The special legal system is at least partly the responsibility of the local authorities and is extended to an increasing number of fields.
3. Asymmetrical territorial administration:
In this last example, special status applies to all or at least most of a country: devolution or federalism is “made-to-measure”, with each entity receiving its own administration and specific powers or resources in line with specific situations.
These three forms of special status will be discussed in greater detail below.
4. The development of the concept of special status
The use of special status is a very old practice. Indeed, instances of special status were previously very common, before the processes of unification and national standardisation that marked the 19th century. Numerous regional activities were still governed by “charters” or separate legal systems. Legislative and institutional unification led to a reduction of such systems in all countries. Only a few of these historic systems remain in force today (eg, the Channel Islands or the Isle of Man). The 19th and the early 20th centuries were dominated by the processes of legal unification and homogenisation of state territory, hardly conducive to the preservation of special status. The disappearance of these unique entities was viewed as rationalisation and a sign of progress. Special status was considered archaic, incompatible with the move towards modernisation and rational state organisation. Even in federal countries, the advantages of a standard form of public administration were considered more important than flexibility to specific situations.
Admittedly, the administrative re-organisation sparked by the Revolution and the creation of uniform entities was indeed a step forward two hundred years ago, and the idea spread throughout Europe. Unitary and federal states introduced symmetrical or homogenous structures and attempted to speed up legislative unification. In many respects, uniformity is still a desirable objective: indeed, one of the aims of European integration is to further unification, not only at national level but across the continent.
However, conceptions have changed in the second half of the 20th century: several factors are now leading to a renewed interest in local legislation and regional status. Firstly, paradoxical as this may initially seem, European integration has highlighted the limitations of uniformity. It will be impossible to recreate at European level the kind of unification that was once imposed, for example in the France of 1789. No-one imagines standardising such different administrative systems as those of the United Kingdom, France, Germany or Italy. European legislative harmonisation affects only that very limited part of the law-making procedure which concerns the major freedoms of circulation for persons, goods and ideas. Whilst the common general principles have been identified and require further strengthening, the idea of extreme homogeneity in the legal structures or of symmetrical integration has lost its appeal at continental level, and this has implications for states. Like the concept of subsidiarity, originally developed at European level as a guarantee for states, which then migrated to regional level and is now laid claim to by internal state structures as a restrictive principle in state intervention, respect for national diversity at European level requires respect for regional characteristics on the part of national governments. European integration has thus exposed the need to counterbalance the trend towards standardisation with greater consideration for the specific needs of certain population groups.
In addition, the granting of special status seems a legitimate response by states to the existence of a particular cultural, historical or geographical situation in part of their territory. In the modern world, where cultures are increasingly levelled out, priority no longer lies with standardisation but with the preservation of diversity.
The granting of special status is also a means of ensuring that cultural diversity within a State is not considered a threat, and conversely, that that the State is not perceived as a threat by a particular minority on its territory. The recognition of special entities is no longer seen as risking the disintegration of state unity, but as an effective way of reducing centrifugal tendencies by giving them just satisfaction. Once granted recognition by the State, regional identities have no further reason to seek separation.
Finally, in the current Zeitgeist, responsiveness to difference and respect for identity takes precedence over geometry and symmetry. The philosophy of human rights, which is becoming the ultimate reference across our continent, has made a de facto contribution to legitimising the demands of specific groups or identities.
Understanding of the modern state’s role and nature has also evolved. It is becoming neutral with regard to the various groups and sections in its composition: religious, cultural, ethnic, regional, political and other groups… Just as the European Union must be neutral with regard to its national components, the modern state is both neutral and functional. This modern functionality equips it with the tools to manage regional autonomies using separate approaches. The decision to use different approaches in handling regions with varying characteristics, rather than resorting to a standard framework, must be seen in parallel with modern society’s preference for a decentralised market model in place of centralised planning.
These diverse factors explain a certain amount of diversity in the forms of specific regional administration in Europe:
In the United Kingdom, where the standardisation model was never slavishly followed, devolution is leading to the granting of specific administrations to Scotland, which had maintained its own legal system, Wales and Ireland (to say nothing of the special status preserved by the Isle of Man and various other local entities or the “private law” system).
The French unitary system has given special status an increasing role in the overseas territories and départements and even in Corsica.
Italy has created five regions with special status in addition to an “ordinary law” regional structure. The new Spanish constitution has opened the way for the development of autonomous regions with variable and differentiated powers.
In northern Europe, allowance is made for certain island situations: the Åland Islands, which belong to Finland but are settled by a Swedish-speaking population; the Faeroe Isles, granted autonomous status by Denmark, etc.
The re-organisation of eastern Europe has also led to increasing instances of special status: the Republics of Gagauzia and Transdnestr in Moldova, the special status of Crimea in Ukraine, etc. In Russia, recognition of special status is enshrined in the mechanisms of ordinary law: as well as federal republics, there are territories, regions, autonomous regions and autonomous territories. The status of these different national or territorial state entities may vary. Even within the category of republics, status varies and is sometimes expressly negotiated. For example, Tatarstan enjoys special status, defined by the treaty of 15 February 1994 “On Delimitation of the Jurisdictional Subjects and Mutual Delegation of Authority between the State Bodies of the Russian Federation and the State Bodies of the Republic of Tatarstan”.
All these different instances of special territorial systems or regional autonomy share certain common features:
- the wish to acknowledge a given region’s special position, which may result from its history, geographical position, particular culture, unique concerns, etc…
- the inadequacy of the rules of ordinary law to ensure that this particular situation is properly taken into account;
- the setting up of a distinctive legal system, the arrangements, purpose and scale of which may vary widely;
- finally, an essential feature of these systems of regional autonomy lies in the wish to ensure a balance between good national integration of the territory benefitting from special status and consideration for this territory’s diversity. In the majority of state systems with such administratively autonomous entities, the necessary compatibility with the state’s territorial integrity is emphasised.
5. Examples of various forms of local status or local systems
In order to present a clearer picture of the characteristics of the local status system, some examples are given from the categories listed below:
- residual local legal systems
- the process of gaining autonomy
- asymmetrical territorial administration
a. Residual local legal systems
As we have seen, these are national legal structures which incorporate sub-systems: the latter may be the legacy of a change in state sovereignty, incomplete territorial integration or various accidents of history. Examples include Scots law or, historically, the coexistence of different legal systems, inherited from the previous states, in inter-war Poland. However, the best example is provided by the local law of the Alsace-Moselle region.
Local law in Alsace-Moselle results from this area’s successive affiliations to Germany and France. When the region was incorporated into Germany, some aspects of French law remained in force. Since the institutional system was then federal, this particular body of law was incorporated without difficulty: in those areas for which it was competent, Alsace-Lorraine’s particular legal system was that of a federal entity. “Local law” as such began in 1918 with the return of Alsace-Lorraine to France. Since France was a unitary state, it wished French law to be applied in its entirety throughout the recovered territories. When this approach met with all kinds of political and practical difficulties, it was agreed that a large part of the (federal and federated) law in force in Alsace-Lorraine in 1918 could remain in force on a provisional and derogated basis. Thus, this local system did not reflect a deliberate choice by the French government to maintain specific legal autonomy in the recovered territories, but was imposed by circumstances and seen as a short-term measure.
Whilst a considerable body of French ordinary law has been introduced in Alsace-Moselle over the ensuing period, a significant body of “local law” has remained in force, as central government has not achieved sufficient consensus to abrogate it. It could have imposed legislative uniformity when Alsace-Moselle was liberated, but the wish to reinstate the legal order of 1940 prevailed.
Due to its provisional nature, this local law has not been reformed or modernised. Consequently, a large part of this legislation has simply become obsolete through non-use on account of its archaic nature. From the late 1970s, the idea that local law possessed its own legitimacy, was not necessarily provisional and could therefore be amended and modernised gradually gained ground in Alsace-Moselle, whilst at the same time this legal system was increasingly perceived as a component of regional identity.
The situation today is paradoxical:
- For the majority of official bodies, local law remains an anomaly, given the principle of legislative unity and local law’s partially foreign roots: however, for political reasons, local law has become a “taboo” subject, and will only be handled with the greatest of caution, ie, if there is a local consensus on the issue;
- Many people in Alsace-Moselle wish to preserve this particular legal system and to manage it on a local basis (and especially to be able to decide how it should evolve); however, such hopes seem unacceptable in a unitary system and are therefore rejected by the interested parties themselves.
As a result, local law endures in a frequently archaic form and maintains its anomalous character, rather than acquiring genuine special status that would further regional autonomy, while nevertheless being considered in this way by the local population.
Alsatian local law is ultimately an example of a lop-sided local status:
- it includes numerous technical legal provisions which bear no relation to the cultural identity of the population in the territory concerned: conversely, it contains no provisions to protect the regional language; it is therefore a “surrogate” local status, suspended legislation acting as a substitute for a new form of territorial status;
- In most of its provisions, it remains a national law with a limited geographical sphere of application; it is therefore not amenable to management by the local population, which must almost always appeal to the national parliament to have it amended;
- since it remains theoretically provisional, it has never been possible to convert this local law into a local legal system: there is therefore no satisfactory mechanism for up-dating, modernising or publicising it, determining the applicable law, etc.
Local initiatives have been taken to compensate in some measure for these shortcomings:
- an “institute of Alsace-Moselle local law” was created in 1985 with the task of studying and publicising this law, preparing possible reforms and advising local and national elected representatives;
- a “harmonisation committee on ordinary and local law” has been set up to provide advice to members of parliament and ministries on worthwhile reforms in fields where legal technicalities arise;
- the idea that local law has both permanence and legitimacy has gradually been put forward and has to a certain extent been accepted by the central authorities, which have agreed to implement various measures to modernise and thus perpetuate local law (measures to tidy up and reform the law, re-publication of texts as part of the general codifying process, etc).
However, the local law of Alsace-Moselle remains to a large extent simply in suspension, rather than being a regional status for the benefit of a particular identity. To acquire this special status, two changes, still somewhat unlikely, would be required:
- “repatriation of local law”, ie, that law-making powers relating to the alteration and evolution of this local legislation be largely transferred to the elected bodies in the territory concerned;
- “redeployment of local law”, namely its re-orientation towards issues that relate to the regional culture and identity (linguistic status, etc).
Without these changes, local law will be more a historical relic than a genuine special status.
b. Special status as an instrument of regional autonomy
As in the previous case, regional autonomous status most frequently corresponds to situations where there is a single legislator. This generally concerns situations where it has been decided not to institute a federal system and thus confer genuine law-making powers on local bodies, but where the state has nevertheless been willing to grant them a particular autonomous status. These local bodies therefore enjoy powers to make regulations that are almost legislative in nature, enabling them to clarify, adapt and even in certain instances derogate national legislation.
In certain cases, regional entities are even granted formal legislative authority, which nevertheless remains subordinated to the national legislation, unlike a genuinely federal system. In contrast to the federal model, the scope of an autonomous system is defined by national law rather than by the Constitution (although the actual principle of autonomy for the territory concerned may appear in the Constitution).
Furthermore, and in contrast to the previous example, this system is not regressive in the sense that standardisation is taking place, but will instead be constructive: autonomy is being consolidated.
These kinds of autonomous status can be illustrated by a number of island statuses (the Åland Islands, the French overseas territories and départements, Corsica, the Azores, Madeira, the Faeroe Islands), as well as by the Italian autonomous regions.
Thus, the two provinces of Trento and Bolzano (Bozen), in the region of Trentino Alto-Adige, have an unusual constitutional status: the region has been split into two distinct entities, each of which enjoys regional-type autonomy. These provinces have their own competences, which include the following areas:
- protection of the historical and cultural heritage
- local cultural institutions
- town planning
- hunting and fishing
- natural parks and environmental protection
- local public transport
- crafts, tourism, agriculture
- vocational training.
The province of Bolzano also has additional legislative authority in the field of education. (German and Italian-speaking children attend separate schools).
Proportional representation is guaranteed for the various linguistic groups in the region’s decision-making bodies and in the devolved structures of state administration. The legislative powers of the region and the two provinces are principal, concurrent or supplementary in relation to national legislation.
The legal system remains national, but judges in this region are selected from the members of the relevant linguistic groups in proportion to the latter’s comparative size. The constitutional court is responsible for ensuring that the powers conferred on the region and its two provinces, and the rights of the linguistic groups concerned, are respected.
The special autonomy enjoyed by the region of Valle d’Aosta includes regional powers that are similar to those of the Trentino Alto-Adige region, but which are nonetheless defined differently. Generally speaking, the philosophies underlying the local administrations are different. While local status in the first region is intended to guarantee the autonomy, diversity and equality of each linguistic group, the special status of the second is more oriented towards integrating the region’s two linguistic groups on the basis of a bilingual and bicultural administration. Thus, the civil service and schools are bilingual in the second case, while linguistic quotas and separate schools are used in the first.
The use of two different approaches to protecting regional cultural diversity in these unique neighbouring areas illustrates the flexibility of the special status model compared to the model of standard regional autonomy.
c. Asymmetrical territorial administration
This concerns situations where decentralisation and federalism are implemented, granting the local institutions more or less developed autonomy, but varying the subject-matter and degree of this autonomy according to the region.
This practice arises from the observation that, due to their different characteristics, not all territories have the same demands or the same opportunities. Certain territories have specific geographical features (insular or mountainous nature, border position, etc), some have specific cultural features (eg, language), and still others have unique historical (successive annexation by different states…) or economic features (industrial restructuring, late development…). Consequently, the scope for local intervention will have to focus on different areas depending on the region: for some regions, the most important powers concern the environment, for others they will cover culture or the preservation of specific social structures. Some regions also have more financial resources or greater public awareness than others (the existence of regional political parties, preservation or loss of a strong identity) and therefore make specific demands or have varying levels of negotiating expertise.
In order to take account of these circumstances, some countries have chosen to adapt their methods of organising regional autonomy systematically, rather than individually for each region.
This adaptation model may take several forms. For example, several different categories of regional or local status may be provided for in the Constitution or national legislation, and these different categories assigned to the regions according to their specific features. Russian federalism is an example of this. It is also possible to establish only the general framework for regional autonomy at national level, and to complete this framework with specific statutes negotiated case by case with each regional entity. This asymmetrical organisation of territory can be seen in the Spanish system of autonomous regions. In spite of the creation of 17 autonomous communities in Spain, only three claim to have a “national” character: Catalonia, the Basque country and Galicia. The Spanish Constitution contains provisions that apply to only some regions (Navarre, the Basque country, Ceuta and Medilla). Each autonomous community has its own statute of autonomy in the form of an institutional Act of the National Parliament: this serves as a local constitution for the community and confers specific bodies and powers or independent financial resources.
The Spanish example also shows that regional differentiation can only develop positively if, in compensation, there are sufficiently strong factors for homogeneity. As the Spanish Constitutional Court emphasised, “the autonomous system is characterised by the balance achieved between homogeneity and the diverse legal systems of the regional entities that compose it” (STC 76/1983).
6. Questions raised by the use of special status
Local status or local law offers the advantage of flexibility and adaptability to particular cases. In order to judge the merits of this form of regional autonomy, it is necessary to consider the criticisms made or the difficulties that it might cause with regard to legal unity and certainty, equality and the system of freedoms.
a. Special status and the complex nature of legal positions
The development of separate legislation may seem detrimental to the clarity of legal positions. In certain fields, the applicable law may vary from region to region. At a time when attempts are being made to extend legislative uniformity beyond national boundaries through European integration, it seems paradoxical to support the preservation or development of special status, which, on the contrary, encourages breaking up the law.
Assessment of this question must be qualified:
- as far as possible, certain matters linked to the world of business and individual mobility should be subject to legislative harmonisation at the widest level, to encourage transparency and legal certainty;
- at the same time, other questions are related to a local context and may be subject to legal systems that vary from place to place without this creating a problem for consumers, so long as such systems conform to certain general principles.
In other words, this is a matter of applying the principle of subsidiarity and giving full scope to the concept of local self-government.
Furthermore, this problem is no different whether we argue in terms of special status for a particular region or of regional autonomy granted in a general manner. As we have seen:
- the aim of regional autonomy (and its synonyms: devolution, decentralisation, federalism) is to confer considerable powers (administrative or law-making) on local bodies, these bodies being invested with the same powers across the entire country;
- special status concerns a given region and is intended to confer a specific system on this region.
In both cases, the impact of the choice between standardising the legal system or permitting the existence of local legal systems is generally the same: recognition of local autonomy and adaptation to local diversity is necessarily achieved at the cost of reduced legal uniformity.
The fields in which a certain degree of flexibility in the legal system is beneficial from the standpoint of regional autonomy are those which enable the local entity to protect and promote its own personality by:
- strengthening the dynamism of community life;
- facilitating the handing-down of values, culture and traditions;
- encouraging community membership and a sense of belonging;
- encouraging attachment to the local heritage (natural, historical, linguistic) and local solidarity,
without of course detracting from consideration of the wider community and more general interests.
Thus, the most appropriate fields of application for local status or local law are:
- linguistic matters
- protection of the natural or historical environment
- regional and town planning
- social and voluntary activities
- local administration and democracy.
In these fields, the existence of specific legal regulations or institutions for a given region has only limited disadvantages, as they concern people who are settled in a region and are likely to have appropriate information about the elements composing the local system. In any case, the differences with regard to the rules of ordinary law or those applied in other regions concern only certain aspects of these questions and are rarely fundamental. In education, for example, the differences concern only a few aspects of teaching, such as the language to be used. None of the above-mentioned areas comes under the exclusive jurisdiction of local status. A combination of local and more widely applicable regulations is almost always necessary.
b. Determining the applicable law
As soon as several legal systems exist in parallel, there is a potential for difficulty in determining the applicable law or for conflicting standards. Such conflicts also exist in devolved, decentralised or federal systems, but are usually better resolved, mainly because where the division of competences between local and central administration concerns the whole of a state’s territory, it receives constant attention and is rapidly resolved. On the other hand, a dispute over applicable law concerning only part of the national territory attracts less attention, so there is less provision for conflicts and they are less quickly resolved.
The existence of a special status is therefore often overlooked when adopting a national regulation. The question then arises of whether the new law is intended for general application (thus challenging the conflicting local law) or whether the local law regulation remains in force. This kind of problem can be avoided if ordinary law only applies in a region with special status where this is expressly stated (this is the approach used for the French overseas territories). On the other hand, if ordinary law applies to a region enjoying local status without there being a requirement to introduce a specific measure, it is more difficult to determine which law is applicable in the event of conflict between ordinary and local law.
In practice, several principles, frequently conflicting and contradictory, have emerged:
- the regulation that is more widely applicable is generally considered to take priority over the regulation with specific application: however, this principle is only valid if the maxim by which special law prevails over general law is not being followed. It is generally accepted that a new rule of ordinary law that has the nature of a specific measure will not take precedence over a local regulation that has the nature of a general measure;
- it is also appropriate to decide whether the authorities which are competent to adopt generally applicable regulations and those with powers to adopt local regulations have concurrent or separate substantive areas of jurisdiction:
· If the local authority has exclusive jurisdiction in a particular area, the general regulation may not replace the local regulation;
· More often than not, competences are concurrent or at least not exclusive: this is the case when the area of jurisdiction of the local authority is not statutorily protected against interference by a higher authority (ie, local authorities that are subordinate to the national parliament);
- sometimes the instance that is competent to adopt locally applicable regulations is also the instance that adopts nationally applicable ordinary law regulations (this is the case for Alsace-Moselle local law); in this event, it is necessary to consider the intention of the writer of the Act, which may be hard to determine;
- the same regulation frequently refers to an area of jurisdiction that comes under both ordinary law and the local system (eg, the organisation of local administration is covered by local law and the adoption of regulations for administrative procedure comes under ordinary law). In this case, it is necessary to examine in which of these two areas the centre of gravity of the disputed regulation lies, so as to determine whether it is covered by ordinary law or special status.
Ultimately, the problems of deciding which law is applicable are largely dependent on the vitality of the specific legal systems. The main problems arise when historical local provisions contradict the new regulations of ordinary law. On the other hand, if the distinctive system has been regularly modernised, problems in determining the applicable law are less rare and easier to resolve.
c. Special status and the principle of equality of treatment
The existence of a particular status for part of the national territory may raise questions regarding the principle of equality: if the specific provisions of the region in question are more advantageous than in the rest of the country, citizens who do not benefit from this status may feel discriminated against. On the other hand, if the status entails specific restrictions, those who are subject to it may feel that they are being treated unfairly. Indeed, it is not necessary to be able to classify a particular regulation as “favourable” or “unfavourable”: it is enough that it differs in a field where the principle of equality must be respected. In fact, this principle is applicable to a wide range of areas. In France, for example, the Constitutional Council has ruled that public freedoms must be implemented in the same way across the whole country. In Germany, the constitutional concept of “equality of living conditions” results in the imposition of standard regulations in a number of areas. In some countries, the principle of equality also applies to local authorities, stipulating that there may not be substantial differences in treatment or administration within the same category of territorial authority.
Sensitivity to this question varies according to national tradition and the area under consideration.
Thus, the fact of making access to public sector employment in a region conditional on specific linguistic criteria (fluency in the local language) is viewed as common sense in one country and unconstitutional discrimination in another.
With regard to Alsace-Moselle law, the compatibility of certain local regulations with the principle of equality is often raised: the argument focuses, inter alia, on the existence of specific criminal sanctions, different regulations on the right of association, a distinctive interpretation of the principle of religious freedom and state neutrality, etc.
In analysing this question, it should be recalled that the principle of equality does not imply the absence of difference, but demands only that any differentiation be legitimate. As the European Court of Human Rights has observed (although the rule is also recognised by national constitutional courts), the principle of equality implies that similar situations are dealt with in the same way, and unlike situations are dealt with differently. As few situations are completely identical, the principle of equality is expressed as a prohibition on discrimination that is not justified by a particular situation. Ultimately, the essential question is whether or not the specific situation in a particular region justifies the application of this kind of specific rule or administration. Generally speaking, this calls for an evaluation that is more subjective and political than legal. In some countries, the requirements of equality take precedence, whilst in others, more attention is paid to the need to take account of individual situations. In this respect, comparative law may be of value in putting national approaches into perspective. The exchange and information work carried out within the CLRAE may also contribute to a more objective view of this problem.
d. Special status and individual freedoms
Apart from the principle of equality, the existence of local law may also pose a problem with regard to the conjunction of certain freedoms. These difficulties are illustrated by a few examples:
A. In order to avoid losing economic control over its local assets, some regions with special status restrict the right to purchase immovable assets to persons originating from that region: this measure is justified, and even necessary, when the region concerned is economically under-developed but is an important tourist area, or if the region’s population is demographically small in comparison with the rest of the country. There is then a high risk of transfer of wealth, which would bring with it deterioration of the culture. There may therefore be a justification for legally limiting access to certain economic positions (property, employment, contracts) to people who fulfil “identification” or cultural “loyalty” criteria, as was frequently the case at national level until recently. Examples include the rules governing access to property in the Åland Islands or past debates in Alsace over access to hunting permits. However, such restrictive regulations limit the rights of citizens from outside these regions. Other difficulties may arise with regard to EU law, which forbids discrimination based on nationality.
In order to reconcile these conflicts, it is necessary:
- on the one hand, to give priority to those legal instruments of intervention that least restrict freedoms (for example, incentives to benefit local people are more easily accepted than prohibitive measures that penalise outsiders);
- at the same time, to establish criteria and rules for resolving conflict between local and national laws. This implies constitutional acknowledgement of the principle of protection for the integrity of sub-territories, balanced by the principle of the unity of the national territory (which is already widely recognised).
B. Many instances of special status or local legal systems contain specific linguistic provisions on education, access to certain posts, public administration, etc. These regulations are considered a necessary form of recognition and support for the local language by those who speak it, but as forms of discrimination, restrictions and obstacles to mobility by speakers of other languages. For example, is it possible to make access to such or such a job conditional on fluency in the local language? (CJEC No. 379/89 judgment of 28 November 1989: bearing in mind Ireland’s particular linguistic situation, the European Court of Justice accepted that knowledge of Irish Gaelic could be legally required for access to an art teacher’s post). Can the children of non-local families be obliged to learn the local language? (French Constitutional Council, Decision 91-290 DC of 9 May 1991: the Council ruled that the French Constitution did not support the mandatory study of regional languages in schools).
To a large extent, the answer to these questions depends on attitudes, and an attempt must be made to overcome these by more neutral and abstract criteria. A balance must be found if conflicting interests are to be reconciled as best as possible.
C. Certain regional systems include the promotion of values that are not recognised in the same way elsewhere, and this may be a source of conflict. Thus, Alsace-Moselle local law recognises religious education in schools, although French ordinary law forbids it. Special status is quite often characterised by religious or ethical questions (recognition of particular religious communities, remuneration of church ministers, regulation of public holidays, rules on abortion, etc). The position taken by the local system may be in conflict with that adopted for the rest of the country. This kind of conflict may generate much emotion, and cannot be resolved by one viewpoint dominating over another: there must be an attempt at reconciliation and synthesis. Thus, two different understandings of Church and State relations may lead to the drawing up of an inclusive principle of religious freedom that is capable of integrating the two approaches.
This example demonstrates that the existence of special systems with specific options regarding the values they incorporate influences the ordinary law system, calls it into question and engages it in a interactive dialogue that can benefit each of the systems and ultimately lead to a better quality of integration than would have been possible under a unitary system.
The main lesson to be learnt from a study of the different forms of special status in Europe is that is technically possible and practically feasible to manage the “differences” within a state through legislation, without infringing on that state’s unity or coherence. Study of local legal systems is a way of breaking down the misconception that the only rational approach is legal uniformity and overcoming the taboo of different approaches to specific situations.
The various examples of local law or special status also make it possible to identify technical solutions or legal arguments that are more adapted than others to ensuring that a region’s social or cultural diversity is properly taken into account.
However, it would be paradoxical to wish to draw up a unitary model for special systems. Their essential characteristic is that they are different from one other. However, certain “recipes” appear more effective than others.
Proposals for the Congress’ work
It would be appropriate for the Congress to play a role in legitimising the use of this kind of “ad hoc” solution, which enables specific social or cultural situations to be taken into account.
Whilst, by definition, special legal status varies from case to case so as to adapt to the specific circumstances of the region concerned, and whilst it would therefore be contradictory to recommend a set model, it is nevertheless possible to identify examples of “good practice” amongst the various concrete experiences, and these could be highlighted by the Congress.
In particular, it may be possible to recommend instruments or methods that facilitate a high degree of reconciliation and a good balance between national integration and respect for local diversity.
It remains the case that local law or special status is unable to take the place of general efforts towards devolution and local autonomy for situations where an area has no unusual characteristics.