Resolution 71 (1998)1 on monitoring of the application of the European Charter of Local Self-Government

The Congress, bearing in mind the proposal of the Chamber of Local Authorities,

1. Considering:

a) that local self-government is one of the cornerstones of pluralist democracy as understood by the Council of Europe, since, in accordance with the principle of subsidiarity, it is at local level that citizens' right to participate in the conduct of public affairs can be most directly exercised:

b) that consequently:

i. local elected representatives must have the right and capability to manage a substantial proportion of public affairs on their own responsibility and in the best interests of the populations they represent;

ii. central and regional authorities should not intervene unless local elected representatives are unable to satisfy the various needs of the population;

2. Recalling:

a) that the European Charter of Local Self-Government:

i. is the only international treaty dealing with the defence and development of local self-government and the principle of subsidiarity in Europe, and that, following the most recent ratifications by Romania, the Russian Federation and the United Kingdom, it has been ratified to date by 30 member States of the Council of Europe;

ii. has made its mark as a legal standard and focal point in the activities of the Council of Europe's bodies with regard to the establishment of local democracy in the new central and east European member States;

b) that with the agreement of the Committee of Ministers and on the basis of the Explanatory Report of the European Charter of Local Self-Government, it is responsible for the political monitoring of its application in the member States, through an ad hoc working group assisted by a committee of independent experts from the signatory states;

c) that this monitoring involves:

i. continuous ex officio monitoring of the application of the Charter's provisions in all the signatory countries, with a view to drawing up comments and proposals to the governments concerned through f the Council of Europe's Committee of Ministers;

ii. monitoring at the request of local and regional authorities acting through their representative organisations or their CLRAE delegations;

d) that monitoring the Charter's provisions is also the responsibility of local elected representatives, who are ultimately the real beneficiaries of these provisions. Due perhaps to their combined political and legal nature, these activities are a powerful means of promotion for the Congress in achieving recognition of the fundamental principles of local democracy by the Council of Europe's member States;

e) that in this context, the Congress endeavours to take into account the legislative situation and practice in the states in question, and to interpret the Charter's provisions in a progressive way; this interpretation constitutes a political form of monitoring which, besides the impact it may have on the legal systems of the States which accept it, allows the Group responsible for monitoring its application to take account of the complexity of forms of local self-government in the member States;

f) that the Working Group mentioned in paragraph 2b above also examines the legal foundations and the conditions in which local government operates in States which have merely signed the Charter, and that, in this sense, the CLRAE's supervision of its application:

i. functions as a political incentive, not as a system of legal penalties;

ii. respects the wide variety of institutional models for territorial organisation and local self-government in the various European states and does not seek to standardise these models;

3. Welcoming:

a) the continuity and seriousness with which the Working Group responsible for the application of the Charter carries out its task, as a result of which the procedures to ensure its observance are becoming increasingly institutionalised;

b) the growing number of states that have ratified the Charter and hoping that this number will continue to increase, not only among the new member States, but also among existing members, which, even if they do observe the Charter's principles in their legislation and practice, have still not ratified, or, in some cases, even signed it;

4. Recalling:

a) its Resolution 3 (1994) and Recommendation 2 (1994) on the monitoring of the Charter's application [Rapporteur: Mr Van Cauwenberghe, Belgium] based on the report on the incorporation of the Charter into the legal systems of the ratifying states, the methods of recourse available to local authorities in the event of violation of local self-government by domestic statutory and legislative texts (Article 11 of the Charter), and the conformity of the legislation in the above states to the various provisions of the Charter;

b) its Resolution 34 (1996) and Recommendation 20 (1996) [Rapporteur: Mr De Sabbata, Italy] on the monitoring of the application of the European Charter of Local Self-Government, based on the report on the supervision of local authorities by central and regional authorities (Articles 3, 6.2, 7.1 and 8 of the Charter), and its Resolution 31 (1996) on guiding principles for the action of the Congress when preparing reports on local and regional democracy in member States and applicant States [Rapporteurs: Mr Chénard, France, and Mr Tchernoff, Netherlands];

c) its Recommendation 39 (1998) [Rapporteurs: Ms Doganoglu, Turkey, and Mr Lloyd, United Kingdom] on monitoring the application of the Charter based on the report concerning the incorporation of the Charter into the legal systems of ratifying countries and the legal protection of local self-government (Article 11 of the Charter);

d) the Final Declaration of the Conference on the European Charter of Local Self-Government (Barcelona, 23-25 January 1992), which played a decisive part in the setting up of a genuine system for monitoring the implementation of the Charter as part of the CLRAE's activities;

e) the discussions at the Conference celebrating the 10th anniversary of the European Charter of Local Self-Government (Copenhagen, 17-18 April, 1996), which, on the basis of an appraisal of the Charter's implementation ten years after its opening for signature, revealed its wide distribution, the broad range of situations to which it applies and the intention of European states, especially the new democracies in central and eastern Europe, to refer to it in their domestic legal systems;

f) the Final Declaration of the Conference on the application of the European Charter of Local Self-Government by the Courts (Barcelona, 24-26 April 1997), which highlighted the fact that although the activities involved in the monitoring of the Charter's implementation by the Congress are essential, they form only the international component of the procedures for applying its provisions and that judicial review by national courts and tribunals should be the other essential element of those activities;

5. Welcomes the fact:

a) that the procedure applied in drawing up the first three reports on monitoring the European Charter of Local Self-Government's application, mentioned in paragraphs 4a, 4b and 4c above, has been successful in opening and carrying on detailed and constructive dialogue with the signatory States, due to the co-operation of the Committee of Ministers through the intermediary of the Steering Committee on Local and Regional Authorities (CDLR);

b) that the CDLR has given favourable consideration to its proposal, contained in its Resolution 34 (1996), that before submitting a recommendation on the European Charter of Local Self-Government to the Committee of Ministers, the CLRAE should seek the opinion of the CDLR, and instructs its Working Group on the European Charter of Local Self-Government to implement this procedure as from the time when it prepares the next draft recommendation on this subject;

6. Bearing in mind the foregoing, nevertheless draws attention to the desirability of institutionalising monitoring of the Charter's application as part of the CLRAE's statutory activities and consequently recognising it as such in the Charter of the Congress in the revision planned for January 2000;

7. With regard to the preparation of the 4th report on monitoring of the Charter, concerning the financial resources of local authorities in relation to their responsibilities, (Article 9 and Article 4(4),(5) of the Charter):

a) given the interim version drawn up by the Working Group mentioned in paragraph 2b above, submitted by its Rapporteur, Mr Jean-Claude FRECON (France) and based on the study by Prof. Alain DELCAMP, Chairman of the Committee of Independent Experts;

b) conscious of the technical and legal difficulties involved in drawing up a report which presents the financial resources of local authorities in relation to their responsibilities, and that these difficulties relate to:

i. ascertaining exactly which responsibilities are genuinely exercised by local authorities rather than the state,

ii. the lack of information on the distribution of responsibilities in the various countries,

iii. the reluctance on the part of most states to list the main responsibilities delegated to local authorities, in summarised form, in a small number of general laws;

iv. evaluating the cost of the responsibilities exercised by the different categories of local authorities,

v. the lack of clarity in the text of the Charter regarding the basic concepts and definitions of responsibilities;

c) encourages the Working Group mentioned in paragraph 2b above to continue its efforts with a view to the submission of the final report and a draft recommendation to the Council of Europe's Committee of Ministers on the financial resources of local authorities in relation to their responsibilities (articles 9 and 4(4),(5) of the Charter), to be submitted at its 6th Plenary Session in 1999;

d) bearing in mind the Charter's provisions with regard to the financial resources of local authorities, and given the importance of this question, it wishes to draw attention forthwith to the problems encountered by local authorities in this area; these may be summarised as follows:

i. the limited proportion of revenue raised by genuine local taxation for which local authorities can set the rates: local authorities can boast a proportion of own resources equal to or greater than 50% of their total financial resources in only 8 Council of Europe member States;

ii. the trend towards fewer exclusive local taxes and the tendency of central or regional authorities to replace these by transferred resources or shared taxation revenue;

iii. the predominant role now played by transfers compared to own resources, and in certain countries, the major role played by specific as opposed to general grants;

iv. a certain confusion between funding of local budgets or compensating for transferred responsibilities and the financial equalisation function;

v. the lack of permanent criteria concerning the methods and objectives linked to the financial equalisation function and the discretionary powers enjoyed by some central or regional authorities in this area;

vi. the instability and precariousness of the sources of finance for local authorities, together with their relatively limited use of capital raising and the opportunity this gives to central government to continue exercising some form of supervision;

vii. the monitoring of local authorities' budgets by central or regional authorities, which sometimes disguises a prior supervision of the expediency of local authority decisions;

viii. the consequences of national economic problems for local self-government, particularly in those countries obliged to respect the constraints imposed by implementation of the Maastricht treaty;

ix. the shortcomings of the procedures for joint funding (State/local authorities) of public works projects;

1 Debated by the Chamber of Local Authorities and adopted on 28 May 1998 by the Standing Committee (see doc. CPL (5) 4, draft Resolution, presented by Jean-Claude FRECON, Rapporteur)