Report on Local and Regional Democracy in France - CG (7) 7 Part II
Rapporteurs: Moreno BUCCI (Italy) and Jean-Claude VAN CAUWENBERGHE (Belgium)
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EXPLANATORY MEMORANDUM
I. INTRODUCTION
In 1996, in Resolution 31, the Congress decided that within the scope of its statutory functions and that over a reasonable period of time all member States were to be the subject of a detailed report on local and regional democracy.
On this basis, following the preparation of several reports concerning a number of European countries , the Congress decided, in September 1999, to begin preparing the report for France, a step which merely implements a previously agreed programme of work.
In this connection, it should be added that the determination recently demonstrated by the French authorities and parliament to pursue the political debate on decentralisation in France with a view to improving conditions for the exercise of local and regional self-government has prompted the Congress to take an interest in this debate in the hope that, as has been the case in other European countries, it can make its own frank and constructive contribution.
The draft Recommendation and draft Resolution on local and regional democracy in France submitted to the Congress for adoption on the basis of this report follow this approach.
Once adopted, the texts might well provide support for the French authorities in their courageous and clear-sighted undertaking of making the territorial institutions of one of the countries at the origin of modern European civilisation yet more democratic and effective.
During the official visits made by the Rapporteurs in connection with the report, they met representatives of a number of French territorial authorities (local authorities - communes, district authorities - communautés, départements, regions) as well as numerous representatives of the governmental and parliamentary authorities concerned. In addition, they forged contacts with academics with a view to validating data of a scientific nature.
The list of people met during the five visits - in Paris (twice), Boulogne-Billancourt, Lille, Metz, Bourg en Bresse and Ajaccio - is appended. The rapporteurs would like to thank all these individuals for showing interest in the work of the Congress and for making themselves so available.
It should be noted that, despite the repeated requests of the rapporteurs and the President of the Congress, Mr Jean-Pierre Chevènement, Minister of the Interior and responsible at government level for territorial authorities, did not grant an audience to the representatives of the Congress during their two visits to Paris in December 1999 and March 2000.
Professor Phillippe De Bruycker, of the Université Libre de Bruxelles, helped the rapporteurs by summarising all the findings of the aforementioned visits in a particularly detailed report. The rapporteurs thank him for his energy and commitment. They would also like to thank Mr Riccardo Priore of the Secretariat, who organised and participated in the different meetings, ensuring the necessary co-ordination.
The first part of the report will review the state of decentralisation in France while the second will examine the prospects for future development and make some recommendations in the light of the European Charter of Local Self-Government. Before dealing with these aspects, it was thought useful to outline the decentralisation structures in France, leaving aside the financing system, which is described in general terms in the main body of the report.
II. PRELIMINARY INFORMATION: BRIEF DESCRIPTION OF DECENTRALISED STRUCTURES IN FRANCE
France is a decentralised unitary state which currently has three tiers of administration in addition to the state government itself: the commune, the département and the region. Article 72 of the Constitution states that "these units shall be free to govern themselves through elected councils and under the conditions stipulated by law".
. At the base of the pyramid, the communes, originating from the towns and parishes of the middle ages, are the oldest kind of sub-national authorities in France. There were 36,779 of them in 1999. The small size of most of them is a distinctive characteristic of France (see the figures below) and explains the extraordinary growth in the power of public inter-communal co-operation bodies, some of which are so strongly integrated into the local government process that they may almost be considered as an additional tier (see below). The commune is run by a municipal council elected by universal suffrage, which appoints the commune's executive entity, the mayor. The communes are mainly competent in matters of town planning, housing, ports, public roadworks, pre-school and primary education, police, cemeteries, water supplies and sewage works, household waste collection and processing, and also fairs, markets and abattoirs. Other than Alsace and Moselle, governed by local law, the only communes to have special status are three cities: two laws of 31 December 1982, known as the P.L.M. acts (Paris, Lyon, Marseille), created a system of internal devolution at the level of the town district (arrondissement) which is not therefore specific to Paris. The status of the French capital, with its dual function of commune and département, has gradually been brought more closely into line with ordinary law, particularly with the replacement, in 1975, of the prefect by a mayor wielding executive power, except as regards policing, which remains the responsibility of the prefect, and the fire and ambulance services, which depend on the state.
. Created by the 1789 revolution, the départements total 96, plus four overseas départements. Run by departmental councils elected by universal suffrage, it is only since the move towards decentralisation in the 1980s that they have had their own executive entity (the president of the departmental council), appointed by the departmental council, (see below). The départements are essentially competent for social welfare, public health, housing, road and school transport, secondary education (collèges), roads, infrastructures and regrouping of rural land, protection of sensitive natural areas, footpaths and rambling paths and ports.
. The regions are the most recent structures and are not enshrined as such in the Constitution . They gained the status of decentralised authority only in 1986, with the first direct election of the members of regional councils, who appoint the region's executive entity, the president, from their number. There are 21 such regions in metropolitan France, plus Corsica, which has a special status (see below), and four overseas regions. The regions are essentially competent for regional planning, economic development, tourism development, housing, fishing, ports, rail and air transport, secondary education (lycées) and vocational training and apprenticeships.
While the elections for the different tiers of local and regional government are not run at the same time, the rate of renewal of the different assemblies concerned is every six years in all cases, although this will be cut to five years for the regional councillors to be elected in 2004 under a new law passed on 19 January 1999. The executive entity for territorial authorities generally follows the presidential model.
The central government is represented at grassroots level by governmental delegates to local authorities who, under article 72 of the Constitution, "shall be responsible for the national interests, for administrative supervision and for seeing that the laws are respected". The state has representatives at three different levels: the regional prefect, who is none other than the prefect of the region's main département; departmental prefects to whose level state administration prerogatives are in principle devolved; the sub-prefect at the level of the arrondissements which number 3 or 4 per département and 327 in total . While a decentralised authority might coincide with an administrative unit to which prerogatives are devolved at regional and departmental level, this is not the case for the lowest tier: the arrondissement is simply an administrative unit to which prerogatives are devolved from the state administration and is not equivalent to any decentralised authority; on the other hand, at commune level, the mayor also discharges functions on behalf of the state in the areas of civil status registers, public order, organising elections and issuing regulatory documents.
Under the Constitution of 4 October 1958, France is a Republic with a bicameral parliament, in which connection it is interesting to note that, as regards local self-government, that the Senate "shall ensure the representation of the territorial units of the Republic (Article 24 of the Constitution) .
There are also four overseas territories (New Caledonia, French Polynesia, Wallis and Futuna Islands and the French Southern and Antarctic Territories) and two administrative units with a special status (Mayotte and Saint Pierre-and-Miquelon). The most sizeable of these, French Polynesia and above all New Caledonia enjoy a system of strengthened autonomy, to the extent that, since the revision of the Constitution of 20 July 1998, the links between France and the latter territory, which has legislative powers, have more to do with federalism than decentralisation. The Wallis and Futuna Islands and Mayotte enjoy limited local autonomy. Whereas the situation of Saint Pierre-and-Miquelon is similar to that of the four overseas départements and regions (French Guiana, Martinique, Guadeloupe and Réunion Island), which are assimilated to the départements and regions governed by ordinary law, the French Southern and Antarctic Territories constitute, notwithstanding their legal classification as an overseas territory, more of a public body than a territorial authority.
PART ONE:
III. OUTLINE REVIEW OF DECENTRALISATION IN FRANCE
The decentralisation process launched at the beginning of the 1980s is sometimes presented as a second, albeit quiet revolution, following that of 1789, which makes it no less of a break with a centralising tradition, that actually harks back to the earlier regime. With hindsight, decentralisation may be seen as a successful attempt at state reform whose accomplishment has depended on the gradual implementation of a huge legislative project based on a number of main founding principles (see chapter 1); however, that success cannot conceal the unfinished state of decentralisation or the controversial trends perceived in the context as a move towards recentralisation which France has experienced in recent years (see chapter 2).
CHAPTER 1: A MAJOR DECENTRALISING REFORM BASED ON CLEAR STARTING PRINCIPLES
Decentralisation describes the process of transferring prerogatives (1), funding (2) and executive power (3) to territorial authorities and is characterised by the replacement of state supervision by administrative control (4), the advent of the region as a territorial authority (5) and the creation of a regional and local civil service (6). This process has been complemented by a reform of the state regional administration tending towards a greater devolution of prerogatives (7).
1 Transfer of prerogatives
The aim behind decentralisation was to transfer blocks of prerogatives that were as homogeneous as possible from the state to territorial authorities. In this light, the different tiers of territorial authority may generally be seen as having a distinct role: the communes have control over land and local infrastructures, the départements are responsible for solidarity and equalisation and the regions have the task of planning and economic development. The transfer of prerogatives has been implemented through two other laws serving as a basis for decentralisation, dating from 7 January and 22 July 1983. The method employed of listing in precise detail the prerogatives of the different tiers of territorial authority in relation to the state in framework laws lends the system of assigning prerogatives a great clarity. Conversely, it is doubtless more difficult in France to have Parliament modify the prerogatives of decentralised authorities without organising detailed debate on the matter, whereas the logic governing the management of the sector concerned by the legislation is frequently broached in other countries without the need to consider the repercussions for local prerogatives as a whole. France can be congratulated on its efforts to codify the situation, in the "General code of territorial authorities" published in a law of 21 February 1996.
2. Transfer of funding
The transfer of prerogatives should logically be accompanied by the transfer of funding from the state so that decentralisation is not simply tantamount to the foisting of state burdens on territorial authorities. This financial compensation, which was to be complete and simultaneous, corresponded to the amounts spent by the state during the previous budget year. In this way, decentralisation became a de facto reality . Observers agree that compensation from the state, either by transferring indirect taxes (eg the car tax to départements and the vehicle licensing tax to regions) or by paying an overall decentralisation endowment, has been duly implemented at the time of transferring prerogatives (from a statistical viewpoint, the future development of these transfers was a source of controversy between local politicians and central government - see below).
3. Transfer of executive power to the départements
One of the most striking features of the centralisation which was exported to many European countries with the Napoleonic conquests was the confiscation of local authorities' executive power by central government. Indeed, what better way to control the activities of supposedly autonomous territorial authorities than to deprive their decision-makers of the driving force provided by an executive with the task of preparing projects for approval and then carrying them out? In contrast to the commune where the mayor represents first and foremost the municipality and then the state, the sole executive entity possessed by the département was the state representative - the prefect, who was supposed to fulfil a dual role. It was not until the law of 2 March 1982 that the prefect's prerogatives were transferred to the president of the departmental council. The regions had an executive body as soon as they were established as autonomous authorities through the elections of 1986. This shows just how very recent the institutional emancipation of the départements from the state is in France.
4. The replacement of supervision by new forms of control
One of the other striking features of the decentralisation of the 1980s was the modernisation of the procedures for controlling the activities of territorial authorities. Administrative supervision which, with its by then classic stages of approval, authorisation, suspension, annulment and so on, was particularly unwieldy when exercised a priori (before decisions existed or were enforceable), gave way to a form of control that may be exercised only by a judge as regards administrative matters and a regional auditor as regards financial matters. The only real remaining official prerogative of the state representative is to refer a matter to an administrative court where unlawfulness is suspected on the part of a local or regional authority. While it is a known fact that a phase of discussion, consultation and negotiation may entered into before applying to have a measure annulled by the administrative judge, which implies that the state representative at sub-national level conserves the role of protagonist at local level, the state representative is no longer both judge and judged, having lost the prerogative of settling disputes in the capacity of supervisory authority.
5. The advent of the region as a decentralised territorial authority
To reach its present stage of development, the statute of the region has been put through a mill of the kind normally reserved for the profession of astronaut. It has passed through virtually every stage listed in the general theory of administrative organisation, from a simple geographical area of state administration, to a regional public body and ultimately a decentralised authority with the attendant self-governing powers. The latter stage was attained in 1986, when regional councillors were directly elected by the people. When attempting a situation report on regionalisation, one cannot help emphasising that the institution of regions is an extremely recent phenomenon in France which nevertheless, according to the regular surveys carried out by the Inter-regional policy observatory, has won over public opinion, which regards it as an institution of the future.
6. Creation of a territorial civil service
Another result of the decentralising reforms of the 1980s was the creation in 1984 of a territorial civil service alongside the state civil service and the state hospital administration. In contrast to the previous diversity of statutes of local and regional officials, the territorial civil service has one overall statute for the staff employed by the communes, départements and regions .
7. The devolution of prerogatives from central state administration as a parallel activity to decentralisation
The devolution of prerogatives has very often been considered in France as a necessary prerequisite to the creation of a decentralised entity, and the development of the region that we have briefly outlined is one illustration of that. Since the return of decentralisation to the agenda during the 1980s, views of devolution have changed: it is no longer seen as a prerequisite but as a parallel activity necessary for decentralisation, to give decentralised authorities, at their level within the state administration, a partner to meet their needs. The law of 6 February 1992 on the territorial administration of the Republic makes interesting use of the subsidiarity principle, making devolution the organisational principle of state administration by limiting the tasks of the central authorities to planning, initiation, guidance, assessment and control under the decree of 1 July 1992 enshrining a devolution charter.
CHAPTER 2: INCOMPLETE DECENTRALISATION IN A CLIMATE OF UNCERTAINTY - THE SPECTRE OF RECENTRALISATION
Identifying the founding principles of decentralisation in France serves a dual purpose: it helps us to both understand the underlying forces and gauge the delays and drawbacks. However, the imperfections in the system are due more to the incompleteness of decentralisation than to the gap that is bound to exist between the formulation of theoretical principles and their practical implementation in the context of sometimes unequal relationships formed between central government and territorial authorities. The pragmatic, gradual approach taken during the 1980s undoubtedly paved the way for a successful decentralisation movement. But however clever and skilful the efforts to steer reforming endeavours around the obstacles to decentralisation, the more substantial of those obstacles, for the very fact of being avoided, will ultimately cause problems.
1. Decentralisation: a political design without an institutional pattern
A. Initial moves to rationalise the communes landscape through co-operation
Still today, France has 36,551 communes on its metropolitan territory, which is almost as many as the entire number of communes in all the other European Union states put together (79,884). Of these, 1,087 have less than fifty inhabitants, 4,082 less than 100 and 28,183 less than 1,000, leaving only 1,739 communes with more than 5,000 inhabitants and 841 with over 10,000. The mean population per commune in France is 1,548 as opposed to 3,885 in the European Union, but over 60% of the French population lives in communes with over 5,000 inhabitants. Such an extreme degree of splintering into so many communes is indeed the chief special characteristic of France. This heritage, to which the French remain deeply attached, many of them identifying strongly with their commune of origin or residence, was not challenged by the champions of decentralisation in the 1980s who, no doubt quite rightly convinced that any prior attempt to merger communes might thwart the reform, deliberately refrained from calling the map of French communes into question.
Given the very particular situation of France in this respect, the extraordinary expansion of inter-communal co-operation is not surprising: inter-communal co-operation bodies in 1996 totalled 14,614 single-purpose associations of communes, 2,221 multiple-purpose associations of communes, 1,216 mixed associations of communes, 318 districts, 10 urban communities, 1,348 communal communities (1999 figures) and 4 municipal communities, not counting the 7 new suburban communities set up in 1999. As will be seen, these structures should not be placed on the same footing, as they do not follow the same patterns of co-operation. Institutionalisation has been France's response to the problems of being splintered into communes. The Marcellin act of 16 July 1971 met with resounding failure, despite the financial incentives offered to merged communes and the interesting proposal to maintain in merged communes, via a merger-association arrangement, a deputy mayor with special responsibilities, a susidiary town hall, a communal section and a consultative structure along the lines of the districts governed by the Paris-Lyon-Marseille law (see below): only 816 communes were merged between 1971 and 1974 and only 754 communes had used the association method by 1995. Moreover, the number of communes started to rise again following the decentralisation laws: 212 were created between 1975 and 1995 and there were 53 de-mergers between 1985 and 1995.
The development of inter-communal systems is visible not only in the number of inter-communal structures set up by the communes but also in the different types of institutionalised co-operation made available to them by the legislature. Prior to the recent law of 12 July 1999 (see below), there were no less than five different types of public body for inter-communal co-operation:
. single or multiple purpose associations of communes is the oldest type, dating from 1890;
. the districts which were organised in 1959 for the benefit of built-up urban areas but had greater success in rural areas, with the result that the adjective 'urban' was dropped in 1970;
. the urban communities, organised in 1966 and originally intended for conurbations of over 50,000 inhabitants;
. communities of communes and communities of towns enshrined in the important outline act of 6 February 1992 on the territorial administration of the Republic.
The law of 12 July 1999 on the reinforcement and simplification of inter-communal co-operation, dubbed the Chevènement act after the present Minister of the Interior, pursues four objectives:
1. to give fresh impetus to co-operation, particularly in the urban context: there is provision for financial incentives for inter-communal structures - the overall operating budget has been increased for the new conurbation communities and, to a lesser extent, for communities of communes. Furthermore, whereas the need for them was undeniably greater in conurbations, inter-communal activities were still inadequate: the implementation of districts had been something of a failure in the urban context, with only eight such districts created on a voluntary basis, in addition to the four imposed by legislation (Bordeaux, Lille, Lyon and Strasbourg), and the communities of towns created under the law of 6 February 1992 numbered a mere four by 1996. With this hindsight the 1999 law created a conurbation community, intended for communes with at least 50,000 inhabitants and a town centre of at least 15,000 inhabitants (a condition which does not apply if a town is the main centre of a département, in order not to place rural areas at a disadvantage). Through a method already used in the past for the other forms of co-operation, the law stipulates that the conurbation communities are to act in the stead of the communes to exercise a number of prerogatives which are mandatory (economic development, spatial planning, housing and town policy) or optional (three options to be chosen from roads, sewage works, water, environment and sports and cultural facilities).
2. to simplify the legal framework for inter-communal activities: the successive acts of the legislature over time have resulted in scattered inter-communal initiatives in addition to the splintering into communes that co-operation was supposed to overcome: the forms of inter-communal action have become far too numerous and are governed by different sets of rules, generating an excessively complex whole. Thankfully, while it created the new category of conurbation communities, the law of 12 July 1999 did away with districts and town communities by providing for three forms of inter-communal co-operation (in addition to the associations of communes) with more clearly identified roles: urban communities for the major conurbations, since the threshold limit for constituting them has been raised to 500,000 inhabitants, conurbation communities for medium-sized conurbations of over 50,000 inhabitants and communities of communes for rural areas. Furthermore, as its title suggests, the law of 12 July 1999 simplifies inter-communal activities by laying down a number of uniform rules covering the different categories of co-operation body.
3. to make inter-communal co-operation more transparent: the law seeks to remedy the lack of democracy in inter-communal co-operation through various measures, although the Senate rejected the National Assembly proposal that the individuals required to sit on urban community councils be designated at the time of municipal elections. However, it is henceforth stipulated that only members of the communal councils concerned may sit in any co-operation bodies. The obligation to provide information has also been stepped up: the chairman of the body concerned must draw up an annual activity report for the mayors concerned, who in turn must notify the municipal council at a public sitting, while commune delegates must also report back twice a year to their municipal council. The co-operation bodies may also set up consultative committees intended for the public.
4. to foster the introduction of a single professional tax via inter-communal co-operation. The introduction of real fiscal prerogatives specific to the co-operation bodies acting in the stead of the member communes gives rise to greater solidarity and fiscal coherence at the level of the territory concerned by eliminating potential competition between the communes through the adjustment of professional tax rates.
The application of the law of 12 January 1999, seen as a good piece of legislation by fairly broad consensus, was very quick to yield results: 51 conurbation communities, resulting more from the conversion of existing bodies than ex nihilo creations and regrouping a total of 763 communes and over 6 million inhabitants, had been established by 31 December 1999. The success of this reform, which has fostered the emergence of real power at the level of the conurbations, makes this law - the crowning achievement of a development process initiated by the law of 6 February 1992 - an important stage in decentralisation, in that it rationalises France's institutional landscape and constitutes an initial limit to communal splintering through co-operation. Political realism obliges us to bear in mind that the reluctance of local politicians vis-à-vis a development that might ultimately challenge the existence of many small communes can be overcome only by the state offering financial incentives to those communes willing to co-operate, without the principle of free choice of co-operation being jeopardised, save for occasional breaches. Thus, inter-communal co-operation seems to acquired a special character in France in passing from one century to another (accelerating in the 1990s) and from a logic of association through the management of common services by associations of communes to a federative project logic through other types of inter-communal co-operation body, which have been increasingly adopted in their most recent forms. Nevertheless the inter-communal co-operation method is not without its drawbacks as regards democracy nor without risk as regards the piling up of administrative layers.
Some observers see this phenomenon of "territorial fragmentation" reproducing itself, albeit to a lesser extent, at the higher echelons of France's 96 départements and 22 regions. Those who elevated the regions to the rank of decentralised territorial authorities in 1982 once again deliberately retained the existing pattern of division which, it must be remembered, goes back to 1956, when the regional plans for economic and social development and spatial planning were demarcated, and has never been debated in parliament. While this is an easy and above all cautious solution, those in favour of larger entities and of strong regions in particular must regret that decentralisation was undertaken prior to any reform of the administrative map, as reform may well be more difficult to carry out now that the 22 regional authorities legitimised by universal suffrage will be able to oppose it and all the more so since their very existence may be called into question. It is worth noting that the regional institution is likely to be further strengthened by the ballot applicable for the next elections in 2004. To date, councillors have been appointed by proportional representation from the lists gaining at least 5% of the vote in the départements, which serve as electoral constituencies. Besides the lack of a political majority in many of the regions, which are ultimately the institutions most severely weakened by the emergence of the far right as an arbiter between the two traditional political families, this has also resulted in leaders having to stake their claim to the presidency of regions without possessing an electoral foundation at the scale of the entire territorial institution they are supposed to symbolise. The very recent law of 19 January 1999 establishing majority voting with proportional adjustment (based on the system currently used for communes with over 3,500 inhabitants) on the scale of the entire region should change this situation by politically strengthening the regional executives.
B. Discussion of the number of territorial administration levels
It is often wondered whether France, with its four tiers of state, region, département and commune, does not have too many levels of territorial self-government. Some would even go so far as to say that the development of certain "inter-communal federation" structures ( in particular the rapidly expanding conurbation communities) may be considered at least as an additional half-level. France is also experimenting with the introduction of "pays" (lands) whose very singular nature makes them difficult to describe.
The pays, which relate to a concept of human geography whereby the territory is considered from a functional viewpoint (in particular, catchment areas for employment), were recognised in the outline act for spatial planning and development of 4 February 1995 (the Pasqua act, named after the Interior Minister of that time), as amended by the law of 25 June 1999 (named after the Minister Voynet). In it, a pays is defined as a territory presenting a certain geographical, cultural, economic or social cohesion. A pays may be formed at the initiative of communes or commune groupings which must adopt a charter that takes account of existing local initiatives geared to development projects and
and seeking to reinforce mutual aid efforts between towns and rural areas. A council for sustainable development made up of representatives of the business, social, cultural and voluntary sectors must be set up and involved in the drawing up of the charter. If the pays is to enter into contracts, notably with the state and the regions, it must be organised in the form of one or several public bodies of inter-communal co-operation with its own tax system or adopt the form of a public interest grouping, which is a public law corporation with financial autonomy. Although the pays is not actually a territorial authority, one cannot help noticing that this hybrid structure, like the deepening of inter-communal structures, helps to blur the frontiers separating territorial authorities from public bodies.
Some protagonists or observers believe that the departmental tier may disappear with the strengthening of the regions above it and, below, the increasing power of inter-communal co-operation structures in the conurbations and also the emergence of pays serving rural areas or acting as a fulcrum between countryside and towns. Not everyone agrees with this view however. The départements, which initially took the form of entities to which administrative powers were devolved and are still the state administration's key level of sub-national organisation, have become firmly anchored in the new landscape of French decentralisation. They benefited during the 1980s from substantial transfers of prerogatives and financial resources and acquired, in executive terms, institutional independence from the state representative. Furthermore, it appears from the debate under way in the Mauroy Committee that the committee's members, while certainly for their own different reasons, will do their utmost to avoid a new level of territorial self-government being established in France. It is true that recognition of the pays as decentralised authorities, which seems most improbable owing to likely opposition from all the existing authorities, would result in a real hypertrophy of French administration, with the emergence - already increasingly noticeable today - of co-operation bodies of a federative nature.
2. Overlapping of prerogatives
Most observers agree today that aspirations to form homogeneous blocks of prerogatives have, in some areas (eg spatial planning or economic assistance), either not been achieved or proven vain in practice. Moreover, transferring prerogatives outside all legislation and maintaining the traditional general clause establishing prerogatives alongside specific provisions allocating prerogatives clearly set out by the legislature since the decentralisation laws of 1983, does nothing to clarify the system .
Opinions on the system of dividing out prerogatives set out in the 1983 laws do vary however: some find it lacking in clarity and organisation, while others believe that complexity is part and parcel of a truly decentralised system and that the proliferation of initiatives reflects the new dynamism of France's communes, départements and regions since the reforms of the 1980s.
Besides the cross-funding resulting from both the overlapping of prerogatives and the necessity of uniting the efforts of several administrative levels to carry out certain major or particularly costly projects, the main phenomenon affecting the initial division of competence is certainly contractual agreements, not only between local authorities at the same level but also between different levels of authority as well as with the state. The planning agreements negotiated by the state with the regions are the prime example of this new form of public authority joint action. Concluded for a duration of 6 years, these agreements are all the more remarkable in that they cover not only respective prerogatives of the two partners that prove to be complementary but also prerogatives falling strictly within the remit of the state, such as universities or trunk roads, which are implemented on the basis of negotiation with the regions called upon by the state to intervene financially within its own field of activity.
It is hardly surprising to find contrasting views on this technique of contractual agreement with the state among regional protagonists. Besides the fact that situations vary from one region to another in terms of the power relations between protagonists on the ground and also that negotiating practices seem to have changed over generations of planning agreements, some see this as evidence of recentralisation, with the state seeking to impose its will through a norm which is not truly contractual, while others consider it as proof that the state must now reckon with territorial authorities, in particular because it no longer has sufficient room for manoeuvre in budgetary terms.
Contractual agreements between the state and regions are without doubt the most noteworthy example but the phenomenon has also taken on an inter-regional and above all intra-regional dimension, involving départements and communes, and towns in particular. The fact that conurbations and pays are also involved, despite not being territorial authorities, demonstrate the complexity of decentralisation, which seems to have embarked upon a kind of quest to identity the best possible territorial structures outside the existing levels of authority. Indeed, this is the case for both decentralised authorities and devolved state administration, which is increasingly organised at inter-regional or pays level. It is hardly surprising, therefore, that the local elected representatives who might have had hopes or illusions of a well thought-out system nurtured by the announcement of laws dividing up prerogatives are sometimes bewildered or worried by the system of contractual agreements, even though the phenomenon, which is not actually specific to France, is both natural and inevitable and ultimately testifies to the vitality of French decentralisation.
3. Financial autonomy of territorial authorities
According to the figures of the Congress of Local and Regional Authorities of Europe's group of independent experts on the European Charter of Local Self-Government , the resources of French territorial authorities break down as follows: 42% from their own taxation, 29% from transfers, 9% from loans, 8% from dues and prices, and 12% from diverse resources. This puts France well above the mean for Council of Europe member states in terms of territorial authorities' own taxation (25.7%) and well below the mean for transfers (49%).
Local taxation in France essentially comprises four direct taxes: three taxes on real estate property (land taxes levied on the owners of built and non-built property and the inhabited house tax levied on the occupier of furnished premises) and a professional tax on private individuals or legal entities exercising self-employed activity, based on tangible assets and salaries and receipts conditional on the reduction of the applicable tax assessment base (see below). This is an aggregate form of taxation, where, but for certain exceptions, the different levels of territorial authority each levy these taxes from a common base. The financial autonomy of French territorial authorities hinges on the fact that local authorities are able to set the rates of these four taxes within the limits of the law (which fixes ceilings as well as rules governing the proportional variation of the different taxes).
According to the figures of the group of independent experts of the Congress of Local and Regional Authorities of Europe , France is ranked 8th in terms of fiscal autonomy and 10th in terms of financial autonomy, when dues and prices are also taken into account. This performance - all the more remarkable in a country split into so many communes, which is hardly favourable to the development of authorities' own local taxation - does not make France, contrary to occasional claims, an exception within the European Union but places it on the same level, taken as an average, of the Scandinavian countries where local self-government is best developed (although the percentage of local expenditure in relation to GDP is distinctly higher than in France).
However, this situation, which is more than satisfactory where local self-government is concerned, is progressively under challenge from a paradoxical development whereby local taxation is receding as decentralisation progresses. Local taxation is undergoing a veritable erosion in the wake of various measures adopted in the last two decades through annual finance legislation: reduction of the tax assessment base, tax relief , exemption for certain individuals, ceiling rates. The delegation encountered such measures during its fact-finding: the most important included measures which have begun to take effect such as the removal of salaries from the professional tax assessment base for a period of five years from 1999 onwards, under the 1999 finance legislation; others such as the abolition of inhabited house tax at regional level were announced by the government in March 2000.
These measures are resulting in a move towards state control of local taxation since the state compensates for the financial losses they represent for territorial authorities through additional appropriations. At present 25.5% of direct local taxes are covered by the state, making it the top local tax-payer! The sheer scale of this compensation (FF 97 billion in 2000) is all the more apparent when compared with the overall operating budget (FF 111 billion in 2000), which is the principal budget transfer from the state to the territorial authorities.
Such a trend is not without consequence for local self-government and democracy. Without entering into discussion on the equivalence of losses and compensation, which has been depleted over the years at the expense of the authorities, it is undeniable that the creeping increase in state control over local taxation (the share paid by the state has risen ten-fold in the last 20 years) constitutes a loss of local autonomy, leaving the authorities with ever decreasing freedom to procure their own receipts, ever decreasing means to handle new burdens which may come their way and, finally, ever decreasing independence in the policies they pursue. Moreover, it also results in an alteration of local democracy in one respect traditionally considered fundamental in France: increasing state control over taxation challenges the link established by elections between the levying of taxes and political responsibility to the electorate.
The argument of employment incentives that justified the removal of salaries from the professional tax could easily be extended in future to the rest of the taxation base, which is partly made up of investments. Moreover, one of the driving forces in the process of increasing state control over local taxation would seem to have emerged, in the course of the debate over the state "treasure chest" uncovered in 2000, as a desire to cut taxation rates, with the substantial tax revenue of central government making it possible, through a communicating vase effect, to finance the abolition of territorial authority taxation! While not wishing to dispute the ratio legis of a series of measures which have doubtless all been adopted on laudable grounds, it would be desirable to break out of a pattern of annual adjustment through finance laws which do not provide an overview and take precious little account of territorial authorities' financial autonomy. France can no longer content itself with the claim that it is impossible to reform local taxation, whose failings (archaism in that it is based on stocks rather than flows), especially when they may be attributed in part to central government (inequity between land tax payers because the reassessment carried out in 1990 has still not been applied, with the result that the assessment bases date from 1961 for non-built property and from 1970 for built property), cannot provide justification for its abolition, and all the more so since a degree of financial autonomy is inherent in genuine decentralisation. Major debate on the reform of local taxation with a view to guaranteeing its future seems inevitable and would remedy one of the shortcomings of the decentralisation process of the 1980s. To date, not enough attention has been focused on this issue; it is true that a reform in this area empowered the authorities to vote local tax rates (law of 10 January 1980), but this was not enough in the new context created by the reforms of 1982.
The development of decentralisation in France in the 1990s is a source of concern or dissatisfaction for many local and regional politicians met by the delegation on its travels around communes, départements and regions as well as on its two visits to Paris, generally expressed in the idea that there has been a "breach of contract with the state" since the early 1990s and, in more general terms, a phenomenon of recentralisation taking over from decentralisation. Even though not all the factors prompting such sentiments can be pinned on the state and some are due to an overall change in society generating constraints which can also afflict central government, these concerns are not without foundation.
A number of new burdens have been placed on territorial authorities, for example through the introduction of the minimum integration income or under housing policy. Although these transfers are nowhere near the scale of those effected in 1983, they are undeniably a break with the integral compensation that was held up as a principle at that time. Furthermore, the development of standards in the area of the environment or building and installation security commits local authorities to substantial additional expenditure. This phenomenon, despite being the doing of the European Community, feeds their resentment towards the state when the latter restricts their ability to cope with these new financial burdens. The dissatisfaction of local politicians also stems from the fact that the particularly strong rise in appropriations paid to territorial authorities (especially the largest of these - the overall operating budget), which kept levels above the GDP until 1994, later slowed as it became necessary to control public expenditure, particularly with the triennial "financial stability pact", which for 1996-98 provided for a system of indexing appropriation based solely on the price index. Although a "growth and solidarity contract", adding an incremental fraction of GDP to that index over time (20% in 1999, 25% in 2000 and 33% in 2001), was concluded for 1999, 2000 and 2001, local politicians increasingly believe that the fruits of growth are not fairly shared between central government and territorial authorities. Finally, a feeling of legal insecurity due to the sophistication of the applicable norms and the increasing number - in reality or at least perceived as such thanks to the strong media attention focused on certain questions - of cases where criminal proceedings are instituted against elected representatives such as mayors, is another chill wind in the climate of insecurity which now surrounds decentralisation in France and in which the ongoing loss of financial autonomy for territorial authorities is certainly the key factor.
PART TWO:
IV. HOW TO GIVE NEW IMPETUS TO DECENTRALISATION
On 17 November 1999, the French Government set up a committee to put forward proposals on the future of decentralisation. This is to report by the end of the year 2000. It is chaired by Pierre Mauroy, Senator and Mayor of Lille, who headed the government when decentralisation began in the 80s. In the words of the current Prime Minister, this committee has been tasked with considering new steps with a view to making decentralisation more legitimate, more effective and a factor of greater solidarity. The Prime Minister’s letter giving the committee its instructions made the following points with reference to these three aims:
. “A broader opening up of elective local offices to all social categories, greater participation by citizens in local democracy and greater fiscal responsibilities for local authorities may establish local democracy more firmly in the minds of our fellow citizens”;
. “Clarification of contractual relations and of relations between central government and territorial authorities, the strengthening of co-operation and the mobilisation of funds for long-term investments would be likely to make their activity more effective”;
. “The requirement for national solidarity makes more necessary corrective action and equalisation mechanisms, so as to prevent decentralisation from leading to unequal development in different areas”.
The Senate, after holding a policy debate in November 1998 on a government declaration on decentralisation it had requested, set up a joint information-collecting group “with instructions to take stock of decentralisation and to suggest improvements likely to facilitate the exercise of local powers”, a group which should also be handing in its conclusions during the year 2000, probably in about May. Thus there should be a considerable amount of input during the year 2000 into the discussions about giving new impetus to decentralisation. It has to be said, incidentally, that the quality of public debate about France's territorial authorities is very welcome, a debate which has been considerably enriched as decentralisation was implemented from the 80s onwards, and has given rise, inter alia, to the publication of many books and periodicals, the holding of numerous colloquies and conferences and an increase in the number of higher education branches specialising in local authorities.
The debate on giving new impetus to decentralisation must not, however, mask either the ongoing process which began in 1982 or the limits of the potential for reform. Since the beginning of the process in 1982, although there had been some antecedents (creation of the general operating grant in 1979, freeing of local tax rates in 1980), decentralisation has constantly moved on, not only through its gradual implementation, sometimes necessitating adjustments, but also through the adoption of a number of varied measures, some of these dictated by political considerations unconnected with decentralisation itself, as in the local taxation sphere (see above), and through that of major legislation, such as the Act of 12 July 1999 on the strengthening and simplification of inter-commune co-operation, prefiguring a rationalisation of the communes' landscape in the future (see above). The rules on multiple office-holding have also recently been amended: whereas the law of 30 December 1985 limited combinations to a single additional office among the offices of regional councillor, member of a conseil général, member of the Paris council, mayor of a commune with a population of over 20 000 or deputy mayor of a commune of over 100 000 people, the legislative amendments adopted on 5 April 2000 provide that elected representatives may no longer combine parliamentary office with a local executive office. But this amendment applies only to Members of the European Parliament, whose position may be dealt with by an ordinary law, and not to members of the national parliament (the Senate actually opposed the adoption of the institutional law necessary in the latter case). Inevitably, the inconsistency of these provisions will force France soon to reconsider rules which, raising a question more of degree than of principle, should effectively prevent a representative office at national level from being combined with executive responsibilities at local level.
The current situation is not therefore one in which territorial authorities passively await further reform, but that of a changing landscape in which experimentation is becoming increasingly important. Significant new reforms are unlikely to result from the work of the Mauroy Committee because its members represent every tier of authority, all determined to defend the interests of their own authorities, and because the political pluralism of the committee encourages the seeking of consensus, most of the political families being divided about the major options (reduction in the number of authorities per tier, priority to the tiers regarded as being most relevant, the future of local taxation, and so on).
The Mauroy Committee is thus expected to come up with a number of proposals enabling some developments already under way to be extended (in the inter-commune sphere, for example) or for new forms of rationalisation to be tried out (the division of powers or the co-ordination of the various tiers), rather than "Decentralisation, Act II”. The exception is the sphere of local finance, which requires proper recasting, involving a concomitant strengthening of fiscal decentralisation and equalisation between authorities, perhaps also providing a helpful instrument for directing certain developments, if the various decisions taken are consistent (Chapter 1). The European Charter of Local Self-Government, which has still not been ratified by France, is all the more worthwhile for France because of the fact that, far from conflicting with French law, it may constitute a certain reference for its development (Chapter 2).
CHAPTER 1: A DYNAMIC PROCESS OF SUCCESSIVE ADJUSTMENTS INTENDED TO IMPROVE THE EXISTING SYSTEM WITH THE HELP OF A VERITABLE REDEFINITION OF LOCAL FINANCE
1. Encouraging the move from the inter-commune to the supra-commune approach
While today it seems futile to try to continue the debate about the advisability of mergers by giving thought to the advantages (particularly the involvement of a large number of citizens in local political life, especially the 506 796 municipal councillors among a population of 60 million) and drawbacks (artificial autonomy of entities which are too small, exacerbation of competition between communes and inequalities in the division of both burdens and assets) of having a very large number of small communes, while the dynamic process of inter-commune co-operation, currently in full development (see above) ought to be left to take its path, we cannot fail to point to the shortcomings of the institutionalisation of inter-commune co-operation as an alternative to the grouping of communes. The classic issue is that of the democratic nature of inter-commune co-operation, a question which arises all the more acutely in France for the fact that certain forms of establishment actually tend towards the supra-commune level, already constituting a semi-tier of territorial administration in addition to the tier of communes, having tax-raising power of their own in certain cases. The democratisation of the most integrated forms of inter-commune co-operation establishments therefore has to be discussed, something which France cannot elude, despite the timid measures included in the Act of 12 July 1989 (see above). Proposals have already been put forward for direct elections to urban communities.
Going beyond this point, the question of relations between inter-commune structures and the constituent communes will have to be answered in the end. In order to prevent the creation of new levels of elections, thought could be given to making use of techniques drawing on the pattern of the Paris-Lyon-Marseilles law of 31 December 1982. Different solutions may be possible in urban areas, where the need for structures which are as integrated as they are democratic is probably felt more strongly than in rural areas, where the inter-commune level is more a matter of the pooling of resources. The experience of other Council of Europe member states where structures below commune level exist may perhaps give food for thought when new ways are sought sooner or later.
2. Making territorial reorganisation possible through recognition of the self-organisation principle in a France which has shed its uniformity
It is not a simplistic answer which is required to the question of the number of tiers of territorial administration. Nor would it be possible to take the view that France currently has too many tiers of decentralised government. It is sufficient to look at the major countries adjoining France, such as Spain (which has communes, provinces and autonomous communities), Italy (with its communes, provinces and regions) and Germany (with communes, Kreise and Länder), or even a small country such as Belgium (which has communes, provinces and regions, as well as communities at the same level), to realise that three is not too high a number of levels of autonomous government.
This does not prevent us from wondering about the powerful nature of the associations grouping most elected representatives of territorial authorities in defence of their specific interests, and thus about France’s ability to escape from the political obstructions which prevent one level of authority from being removed when a new one is created, in the context of relations between the level of communes and the inter-commune now being set up. Purely pragmatic development of existing structures might well land the state in a situation of political and administrative hypertrophy, the shortcomings of which in terms of cost and complexity will inevitably mean a search for remedies.
Twenty years after implementation of decentralisation, described as “a political design without an institutional pattern” (see above), France still does not seem ready to embark on the major reform of a new division of its territory. It is therefore legitimate to wonder whether a solution might not be to allow self-organisational powers for territorial authorities, perhaps extending to the merger of different tiers, by making it possible, for instance, for those concerned to decide to amalgamate a region and its constituent departments if they so wish, if these seem too few in number or too small (as in Corsica or in Alsace, for example). The purpose of such an innovation would be to make a clean break with the principle of uniformity which has dominated the political/administrative organisation of France, and it may seem a bold one, necessitating constitutional reform, but the ultimate aim is to take one more step by making it possible for the authorities concerned to do something about the number of tiers, in the same way as the inter-commune level enables communes to take action on their own number, although this latter method has for the moment not led to their very existence being called into question.
Lastly, we cannot fail to mention the issue of the status of Corsica. Since new impetus was given to decentralisation in the eighties , it has had the status of a region and a subsequent special status, neither of which brought any calming of the atmosphere of violence, which culminated in 1998 in the symbolic assassination of the representative of the State. The present government therefore wished to begin, towards the end of 1999, a process of discussion with the island's elected representatives, with a view to finding a forward-looking solution to the Corsican problem. The Corsican Assembly, which had been asked to come up with relevant proposals, held a debate early in March, but was unfortunately unable to agree on a mutually acceptable text. Two resolutions, one of which received a small majority, were ultimately adopted, in a chaotic political landscape which sees elected representatives taking up independent positions on this issue unconnected with their right or left-wing allegiances.
Although a number of claims are made by all , discussions are going to centre on their differences in respect of the sharing of the power to introduce legislation and regulations. The two texts differ about the scope of the envisaged devolution of powers: the majority text, when it refers to "the broadest decentralisation within the Republic", says that "it will be possible to leave behind the present, largely theoretical, debate about the participation of Corsica's special administrative authority in law-making" through reform of the machinery which enables it to put forward proposals for legislation or regulations to be amended or altered, as well as through the granting of the power to execute legislation in enlarged and exclusive areas of competence". The minority text goes further, demanding, in the context of "very wide-ranging decentralisation", "transfers of coherent groups of powers, together with ipso jure powers in respect of legislation and regulations" in certain fields.
The differences between the two texts, which both claim to be based on decentralisation, interpreted with a narrower or broader meaning, effectively tally with a variable degree of depth of regional self-government taken into account by the draft European Charter of Regional Self-Government drawn up by the Congress of Local and Regional Authorities of Europe, and sent to the Committee of Ministers for examination. Article 3 of this text actually defines the term "regional self-government" as denoting "the right and the ability of the largest territorial authorities within each State, having elected bodies, being administratively placed between central government and local authorities and enjoying prerogatives either of self-organisation or of a type normally associated with the central authority, to manage, on their own responsibility and in the interests of their populations, a substantial share of public affairs, in accordance with the principle of subsidiarity". The choice between these two options may be envisaged for Corsica, in relation to the situation of other European island regions, many of which, such as Sicily and Sardinia in Italy, the Azores and Madeira in Portugal, the Canaries in Spain or the Ile of Aaland in Finland, enjoy extensive self-government, including legislative power, even in unitary states such as Portugal and Finland, which refuse to regionalise on their mainland. It nevertheless has to be made clear that recognition of regions' autonomy in every case implies loyalty to the state of which the regions are part, with respect for its sovereignty and its territorial integrity, as expressly pointed out by the Congress of Local and Regional Authorities of Europe in paragraph 8 of the preamble to the draft European Charter of Regional Self-Government. While the decision to adopt one formula or the other is a matter solely for France, as it is for every Council of Europe member state in its own case, a new form of power-sharing ought to be found, of a balanced kind, making it acceptable to all representatives of Corsica, enabling the island to grasp the historic opportunity it now has for reconciliation.
3. Improving the exercise of powers by giving thought to the best kinds of partnership for territorial authorities
As it is impossible, in certain fields, such as that of spatial planning or economic development, to achieve a homogeneity which would be ideal, but is impracticable, and as there is a refusal to repeal the general clause on powers which, in any case, enables the authorities, unless absolutely prohibited from doing so, to take any initiative they believe to be desirable, solutions tend to be sought which would more harmoniously combine the powers which exist under the present division, through various forms of partnership.
The promised implementation measures must flesh out the idea of appointing one authority as leader, as envisaged in Section 65 of Act No. 95-115 on spatial planning and development.
Once thought starts to be given, less to the system for sharing out powers, and more to their exercise by the different tiers of authority, it might be worth resuming discussion of the option under which the exercise of supervision of a lower-tier authority by a higher-tier authority is prohibited, in so far as this can prevent the operation of the existing system from being improved by the territorial authorities themselves, without central government intervention. The debate would then shift from the relationship between local self-governing authorities and the State to that between commune and département, or between commune or département and region.
It will certainly be worth considering, in greater detail, the significance of the widespread use of contracts, which has become much more systematic since decentralisation started in the early eighties. The use of contracts cannot be called into question when it is nothing more than the necessarily concerted application by public institutions of their powers, which will in practice always remain complementary, however sophisticated the power-sharing system, even in federal states asserting the exclusiveness of powers. But the procedure is not homogeneous, and encompasses a variety of processes, the significance of which is not identical. Contracts between the State and territorial authorities should not therefore be regarded in the same way as those between territorial authorities.
While it is quite clearly not to be condemned just because the situation occurs, the State's presence as a party, with one or more authorities - the best example of this situation arises in respect of the "contrat de plan", a contract between State and regions - deserves careful scrutiny to establish the actual position covered by the contract. As well as reflecting the need for harmonious use of complementary powers, such contracts may translate the State's wish to involve territorial authorities in the exercise of its own powers, so as to come closer to the reality on the ground, and even reflect the central government's need, when it is short of funds, to seek necessary additional funding from them. Such contracts may, however, in certain cases, conceal a very unequal relationship, being contracts only in name. So the use of contracts may camouflage the return of specific subsidies which, while they may to some extent be acceptable, must nevertheless remain limited, as they diminish the independence of decentralised authorities.
Where contracts between territorial authorities are concerned, a distinction should be made according to whether they are authorities at the same, or at a different, level. Those between authorities at the same level, such as contracts between regions, involve no risk of unequal relations in law, and reflect a wish, or a need, to work together, or even the inappropriate nature of territorial divisions and the fact that some territorial authorities are too small to be of critical size. The significance of contracts between authorities from different tiers varies, as already mentioned in our preceding hypotheses, and deserves to be studied.
As a result, while thought should of course continue to be given to the division of powers, so as to improve the existing system, much greater account should in future be taken of the use of contracts, which is as widespread as it is varied in form. Ever more detailed research is needed . It is, first of all, amazing that it has not proved possible to send the delegation, as it requested, a summary in the form of a simple list of all the types of contract which are allowed, indicating their statutory basis and objectives. There is also a need for a greater number of systematic investigations into the way in which contracts are actually used, for these might lead to proposals for changes in the division of powers, if it were found that certain subjects systematically either were covered by contracts going against the statutory pattern or gave rise to calls for funds by the authority which, in principle, was responsible. Lastly, questions may be asked about the increasingly frequent use of the contract concept in conditions of legal uncertainty as to the exact nature of the machinery used, ultimately requiring certain details to be given of the parties' actual commitment.
4. Maintaining authorities’ fiscal autonomy while reinforcing financial equalisation between territories
A recasting, rather than a reduction, in local taxation seems necessary, for reasons connected with local democracy, as emphasised by the Prime Minister when he wrote giving the Mauroy Committee its instructions, stating that “greater fiscal responsibilities for local authorities may establish local democracy more firmly in the minds of our fellow citizens”. And it is perhaps on the basis of the idea that the fiscal link with electors is less at the regional tier of authority than at that of départements and communes that the government ultimately decided to do away with the regions' share of the tax on occupied property (see above). However, it would not be appropriate to lose sight of the fact that another, equally important, argument justifies the decentralisation of tax-raising power: local taxation is the main way in which territorial authorities can obtain resources the amount of which they may decide, to a certain extent. This makes it crucial to genuine autonomy. This has to be pointed out at a time at which regions are losing their share of the tax on occupied property, just as they await the transfer to them of new powers relating to rail transport which may well entail extremely high expenditure.
There are several possible ways of retaining the fiscal autonomy of territorial authorities, such as the introduction of a département income tax, as discussed in 1988. The main thing is to start this reform without allowing fiscal policy considerations to take precedence over the need to preserve a certain degree of fiscal autonomy for territorial authorities.
The first path would be to attempt to reform existing local taxation, requiring, inter alia, a revision of the basis of property taxes, with care having to be taken to avoid too great a delay continuing to make their updating very difficult.
This first option must not be neglected on the grounds that the archaic and unfair nature of local taxation is, although the responsibility is borne by the State, regarded by some of its representatives as all the more reason for doing away with local taxation.
A second possibility, a recasting of local taxation, requires the specialisation of certain taxes, the yield of which would be solely destined for one tier of authority, as is currently the case of indirect taxes on motor vehicles. Another advantage for the citizen of exclusive local taxation would be that it would make it easier than the present, too opaque, form of additional taxation to understand the fiscal system.
A concomitant requirement of the consolidation of the fiscal autonomy of territorial authorities would be a reinforcement of the financial equalisation between territories. This equalisation is currently widely considered to be inadequate, while there is a need for it to be strong because of territorial fragmentation, although the inter-commune level certainly offers a partial solution to this problem. In 1997, the equalisation machinery related only to about 5% of the proceeds of the general operating grant, and represented less than 2% of the revenue from the four main direct local taxes for the communes, through the business tax equalisation fund.
A third possibility involves a much more radical reform, consisting of the sharing between central government and territorial authorities of the yield from the major modern taxes, such as VAT or income tax. While a possible solution of this kind would facilitate the achievement of equalisation at national level and would enable sufficient funds to be directed into local authorities’ budgets, it will be noted that it is unlikely to guarantee financial autonomy to each individual authority. The most that is possible in such a system is the preservation of local autonomy in general, by giving territorial authorities’ representatives some influence on the sharing out of taxes, something which may be done, inter alia, through the Senate.
CHAPTER 2: RATIFICATION OF THE EUROPEAN CHARTER OF LOCAL SELF-GOVERNMENT AS THE BASIS FOR A NEW DECENTRALISATION
The European Charter of Local Self-Government is a Council of Europe convention which was signed on 15 October 1985. Although it is now general law Europe-wide on the organisation of local government, now being in force in XX of the XX member states of the Council of Europe, France is still not a party to it, although it had signed the text immediately.
It is still unclear why France has not ratified the Charter. A negative opinion issued by the Conseil d’Etat on 5 December 1991, when it was asked to approve authorisation of ratification of the Charter, is sometimes given as the reason for this situation. The Conseil d’Etat expressed the view that “as this is an area which fundamentally and durably affects the institutions of the Republic, the powers of parliament should not be limited through international undertakings except with the very greatest prudence and for vital reasons”. In the words of the Conseil d’Etat, France’s long tradition of local self-government, which had been strengthened in recent years, “by no means justifies, a priori, a kind of support for new developments through a charter which, in the detail of its articles, is poorly adapted to the reality of our institutions. A close examination of the stipulations of the Charter, in practice, shows that it in fact contains both ambiguities which will give rise to futile claims and even to disputes, with all the risk ensuing over a long period, and rules differing from those which currently govern local authorities, implying amendments of the texts in force, when there is no need for such amendments … the Conseil d’Etat, aware of the elements of confusion which the Charter may introduce in this field, has taken the view that it is not desirable for the Charter to be approved. While it is true that Article 12 of the Charter enables states to agree to be bound only by some of its provisions, this solution is not envisaged by the government and would be highly inappropriate”.
The most important thing is to state that there is no constitutional obstacle standing in the way of ratification of the Charter. This statement, which may seem self-evident, deserves to be made, because the idea that Article 34 of the Constitution, which states that "Laws shall determine the fundamental principles of the free administration of local authorities, their powers and resources", is sometimes considered to be a problem insofar as the legislature could not agree to be bound by an international convention in a matter for which the law alone may provide. Whereas the Conseil d’Etat did effectively refer to this provision, it did so only in the preamble to its opinion, without drawing any legal conclusion from it, something which is hardly surprising, for the argument could be relied on in respect of every international convention in the legislative sphere .
Next, an attempt will be made to remove the element of drama from the concept of self-government contained in the European Charter of Local Self-Government. While it is absolutely commonplace in legal literature, where it has from the very start of modern French administrative law been conveniently used to define the idea of decentralisation, the term may be emotionally charged in the political debate, or may be given an extremist political connotation not embraced by the Charter, which effectively defines it, in Article 3 (1), as “the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population”, in a way not so very different from the concept of free administration found in Articles 34 and 72 of the Constitution, which the Charter in fact enriches.
Now that these details have been made clear, the arguments put forward by the Conseil d’Etat remain to be looked at. We shall first note that they relate to appropriateness, and not to the law, so it seems legitimate to ask the French political authorities to examine the question and to take a decision. It is all the more desirable for them to take a position on this point for the fact that the arguments put forward in the opinion referred to do not carry much conviction. Neglecting the potential contribution which the Charter could make to French law, the Conseil d’Etat lingered over problems of detail, also objecting to the solution which the Charter itself makes possible. The crucial point is elsewhere, stemming from the fact that the Charter now offers a number of solutions to some of the problems currently arising in respect of decentralisation in France, the main ones of which have already been mentioned in this report.
First in line is the field of local finance, the importance of which there is no need to emphasise and which is one of the major issues for the future of decentralisation in France. Article 9 of the European Charter of Local Self-Government clearly shows the limit which must not be exceeded, in paragraph 3, according to which: “Part at least of the financial resources of local authorities shall derive from local taxes and charges of which, within the limits of statute, they have the power to determine the rate”. As if echoing the Senate’s idea of a “basket index of local charges”, paragraph 4 of the same article provides an answer to the recurrent problem of arrangements for indexing the grants received by local authorities, specifying that “the financial systems on which resources available to local authorities are based shall be of a sufficiently diversified and buoyant nature to enable them to keep pace as far as practically possible with the real evolution of the cost of carrying out their tasks”. Finally, paragraph 5 of the same article, on financial equalisation, could also serve as a guide to the French legislature with a view to strengthening the solidarity among territories which must not be jeopardised by decentralisation.
Other provisions of the Charter should catch the attention of both local elected representatives and central government. Firstly, in the context of the debate about the conditions in which local elective office is exercised, Article 7 lays down the principle that “the conditions of office of local elected representatives shall provide for free exercise of their functions” (paragraph 1), and then goes on to say that “they shall allow for appropriate financial compensation for expenses incurred in the exercise of the office in question as well as, where appropriate, compensation for loss of earnings or remuneration for work done and corresponding social welfare protection” (paragraph 2). France could surely draw on the Charter where those responsible for communes with a population of under 10 000 are concerned, who derived no benefit from the adoption of the law of 3 February 1992 on the conditions for the exercise of local offices. Reform is all the more desirable for the fact that local elected representatives, who nowadays include a disproportionately large number of public servants and retired persons, are insufficiently representative of the diversity of French society. Article 4(4), according to which “powers given to local authorities shall normally be full and exclusive. They may not be undermined or limited by another, central or regional, authority except as provided for by the law” will not fail to be of interest quite particularly to regional elected representatives, who are critical of the way in which they were informed of the government’s intention to do away with the share of the tax on occupied property received by the authority which they represent.
According to an in-depth study carried out in 1993 for the Council of Europe by an independent French expert , the main divergences between the stipulations of the Charter and French law are:
the present organisation of French local authorities, their executive having no responsibilities, in the usual sense of this word, to the authorities' deliberative assemblies. This divergence corresponds very closely to a question sometimes discussed in the context of the possibility of improving the quality of local democracy.
the principle of subsidiarity, according to which responsibilities should preferably devolve to the closest authorities to citizens, is not acknowledged as such by French law.
Furthermore, it is accurate to say that the European Charter of Local Self-Government, as noted by the Conseil d’Etat, contains a number of “ambiguities”, the presence of which is quite understandable in a text which had to be the subject of a compromise among Council of Europe member states so as to be able to be cast in a binding convention.
But neither these divergences nor these ambiguities can explain France’s refusal to ratify this convention, unless there is immediate rejection, without any explanation as to how the Charter would be inappropriate, of the opportunities available under Article 12 for States Parties to formulate a number of reservations, following a specific procedure, making it a particularly flexible international instrument. French law meets most of the requirements of the Charter, ratification of which would not require any major changes to the current arrangements for France's territorial authorities. There are even some points in respect of which the provisions of French law even offer greater protection than the provisions of the Charter, or have been in perfect harmony with them since the decentralisation legislation. One example is the system of assigning blocks of prerogatives, the merits of which, in spite of its limitations (see above), must be emphasised all the more because France satisfies a requirement set out in Article 4(4) of the European Charter of Local Self-Government, according to which “powers given to local authorities shall normally be full and exclusive”.
There is thus no real obstacle standing in the way of ratification of the Charter. Were France to ratify, this would merely strengthen its move towards decentralisation, by removing the misunderstanding which may arise out of the fact that, while meeting most of its requirements through a high degree of local self-government, France is not a party to a treaty regarded as increasingly fundamental in terms of the substance of democracy, and ratification of which has also been considered as a condition for admission to the Council of Europe for the countries of central and eastern Europe. Unless an exaggerated number of reservations were put forward, this ratification would, however, not be essentially symbolic, as a number of provisions of the Charter could, with the particular force attaching to the provisions of international law, provide guidance to the legislature and to the courts, overcoming, in a way which seems appropriate to the French situation, certain shortcomings of the French Constitution in terms of guarantees for local self-government, without any need for revision of the Constitution. These are the reasons why this opportunity deserves re-examination by the French Parliament and Government on the occasion of the inevitably imminent debate on the future of decentralisation, with the support of the Congress of Local and Regional Authorities of Europe, which should help to make the European Charter of Local Self-Government better known in France (particularly by organising a major colloquy).
APPENDIX
Personalities met by the CLRAE Delegation on their official visits
in view of preparing the report on local and regional democracy in France,
in chronological order of meetings (December 1999 – March 2000)
Mr Michel MERCIER, Rapporteur of the Senate Mission for Decentralisation, President of the Regional Council of the Rhône
Mr Daniel HOEFFEL, Senator, First Vice-President of the Association of French Mayors
Mr Alain DELCAMP, Chair of the Group of Independent Experts on the European Charter of Local Self-Government
Mr Jean-Claude FRECON, Rapporteur of the Association of French Mayors on Taxation and Rural Communities
Mr CARREZ, President of the Finance Committee of the Association of French Mayors, Deputy at the French National Assembly, Mayor of Perreux
Ms Marie-Claude SERRES COMBOURIEU, Responsible for Finances, Economic Development and Intermunicipal Cooperation of the Association of French Mayors
Mr Denis CASTAING, Responsible for International Relations of the Association of French Mayors
Mr Jean-Paul ALDUY, Mayor of Perpignan
Mr Jean DELANEAU, President of the Senate Social Affairs Committee, President of the Regional Council of Indre et Loire
Mr Jean-Bernard AUBY, President of the French Association of Local Authorities Law
Mr Didier LALLEMENT, Director General of Local Authorities of the Ministry of the Interior
Mr Michel PAPAUD, Director of the Private Office of the Director General of Local Authorities of the Ministry of the Interior
Mr Denis PERRIN, Deputy to the Deputy-Director of Local Responsibilities and Institutions, Ministry of the Interior
Mr Jean-Pierre FOURCADE, Mayor of Boulogne-Billancourt, Senator, Chair of the Governmental Committee for Local Finances
Mr Gérard LEMAIRE, Secretary General of the Association of French Regions
Ms Marie-José TULARD, Director of the Senate Department of Territorial Authorities
Mr Pierre MAUROY, Former Prime Minister, Senator, Mayor of Lille, Chair of the Governmental Committee on Decentralisation
Mr Philippe LEROY, President of the Regional Council of Moselle and of the "Europe" Committee of the Assembly of French Départements, Vice-President of the Region of Lorraine, Mayor of Vic sur Seille
Mr Patrick WEITEN, Regional Councillor of the Département of Moselle, Mayor of Yutz
Mr Jean WEBER, Mayor of Remilly
Mr Martial WLAZLAK, Head of the Private Office of Mr Leroy
Mr Jean PEPIN, President of the Regional Council of Département de l'Ain, Senator
Mr François PAOUR, (former) President of the French National Federation of Rural Mayors, Mayor of Saint-Bernard
Mr René AMSELLEM, Mayor of Pressiat
Mr Jacques BOYON, Former Minister, Mayor of Pont-d'Ain
Mr Michel CARMINATI, Vice-President of the Regional Council of the Département de l'Ain, Mayor of Izernore
Ms Danielle COMTET, Mayor of Misérieux
Mr Robert MERIAUDEAU, Mayor of Bregnier-Cordon
Mr Noël RAVASSARD, Regional Councillor of the Rhône-Alpes Région, Mayor of Chatillon-sur-Chalaronne
Mr Geneviève RIGUTTO, Mayor of Chatillon-en-Michaille
Mr MONTANE, Civil Servant in the Administration of the Territorial Assembly of Corsica
MMr ALBERTINI et PIETRI, representatives of the Corsican political group "Another future", members of the Territorial Assembly of Corsica
Mr Toussaint LUCIANI, Corsican political group "Movement for Corsica", member of the Territorial Assembly of Corsica
Mr José ROSSI, President of the Territorial Assembly of Corsica
Mr Jean-François BATTINI, Representative of the Territorial Assembly of Corsica
Mr VINCIGUERRA, member of the Territorial Assembly of Corsica
Mr Jean-Guy TALAMONI, President of the European Affairs Committee of the Territorial Assembly of Corsica, representative of the political group "Corsica Nazione"
Mr Jean BAGGIONI, President of the Executive Council of Corsica
Mr José COLOMBANI, Head of the Private Office of Mr Baggioni
Mr Jean-Pierre RAFFARIN, President of the Association of French Regions, President of the Region of Poitou-Charentes
Mr Paul GIROD, Vice-President of the Senate, member of the Senate Mission on Decentralisation, Regional Councillor of Aisne, Mayor of Droizy
Mr Adrien ZELLER, President of the Region of Alsace, Ex-Deputy, Co-President of the Institute on Decentralisation
Mr Jean-François LEGARET, Deputy Mayor of the City of Paris
Mr Louis GRANIER, Secretary General of the Town Hall of Paris
Mme POLITIS, Responsible for International Relations, Secretariat of the Town Hall of Paris
Mr François LUCAS, Technical Advisor to Mr Jean-Pierre CHEVENEMENT, Minister of the Interior
Professeur Michel VERPEAUX, University Panthéon-Assas, Paris II
Professeur Jean-Bernard AUBY, President of the Association of Local Authorities Law
Professeur Gérard MARCOU, Research group on local administration in Europe
Professeur Hugues PORTELLI, Co-President of the Institute on Decentralisation
Professeur Jean-Claude NEMERY, Univesity of Reims, Champagne-Ardenne
Mr Jean-Louis GUIGOU, Deputy, Spatial Planning and Regional Action
Mr Jean PEYRONY, Representative, Spatial Planning and Regional Action
Mr Philippe VALLETOUX, Member of the Directorate of the Crédit local de France