Report on monitoring the implementation of the European Charter of local self-government - CPL (3) 7 Part II

Rapporteur: Mr Giorgio DE SABBATA (Italy)

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EXPLANATORY MEMORANDUM

I. THE CONFERENCE IN COPENHAGEN

This report concerns the Congress' monitoring of the implementation of the European Charter of Local Self-Government and is a follow-up to the report drafted by Mr J C VAN CAUWENBERGHE and to Resolution 3 (1994) and Recommendation 2 (1994), adopted at the first plenary session of the Congress.

One need only read these documents, assess their content and aims and, in some cases, establish their effects, to confirm the value of the Charter and its principles, as well as its topicality and influence.

Qualities, indeed, which were highlighted by the conference organised in Copenhagen on 17 and 18 April 1996 by the Danish presidency of the Committee of Ministers in co-operation with the Congress to celebrate the 10th anniversary of the Charter. This conference was the culmination of a full programme of activities that provided an opportunity for an in-depth appraisal of the topicality, the impact and the prospects of the Charter in the promotion of local self-government, even beyond the borders of Europe.

Other activities on the programme included the Seminar on Co-operation Programmes with the Countries of Central and Eastern Europe held in Strasbourg on 22 November 1995 and the Conference on the Charter and its dissemination in the southern hemisphere, held in Malta from 14 to 16 March 1996. The conference in Copenhagen was therefore able to draw up a very complete picture of compliance with the principles of the Charter in the member states of the Council of Europe and to make important proposals for its future implementation. In addition to Council of Europe representatives, the conference was attended by 12 European Ministers responsible for Local and Regional Authorities, the President of the Committee of Regions of the European Union and numerous representatives of associations of local authorities at the national and European levels. The reports presented were of the highest quality, giving detailed information on the implementation of the Charter in those countries which have ratified it and on compliance with its principles in those countries which have yet to ratify it, both in western Europe and in central and eastern Europe.

It was acknowledged and stressed that the Charter is the only internationally binding legal reference document designed to defend and develop self-government and the principle of subsidiarity throughout Europe. The discussions that followed the reports revealed the wide variety of situations covered by the Charter, as well as the determination of the states of Europe to refer to it in building genuine local democracy to cater for the needs of the citizens of Europe.

The conference in Copenhagen confirmed the role of the European Charter of Local Self-Government as a common international legal basis on which to build a Europe where citizens are able directly to exercise their right to participate in running public affairs. As such, the Charter was saluted, together with the European Convention on Human Rights, as one of the pillars of the democratic spirit and the values upheld in the Statute of the Council of Europe, as well as one of its distinguishing features.

By the same token, the efforts of the working group responsible for monitoring the implementation of the Charter - which I have the honour of representing today - and of the group of experts which assists it were acknowledged in Copenhagen as essential to improved awareness and harmonisation of the different situations that exist in the Council of Europe's member states in respect of local self-government, as well as a privileged means of guaranteeing that those countries which sign and ratify the Charter actually implement its provisions.

II. MONITORING THE IMPLEMENTATION OF THE CHARTER: SOME INTRODUCTORY REMARKS

Generally speaking, and before we consider the findings of the working group described in the text appended to this report, the point must be made that all initiatives undertaken to monitor implementation of the Charter and aimed at establishing the connection between the Charter, or some of its articles, and the legal systems of individual member states come up against a series of difficulties as a result of the great diversity of those systems.

Prima facie, these difficulties seem to highlight the limitations of the Charter but, on closer consideration, they also reveal its merits; in fact the serious analysis carried out by the Congress offers an opportunity to use the Charter as an instrument for comparing and improving regulations and procedures, some of which vary greatly.

This opportunity has provided the aforementioned working group, responsible for monitoring implementation of the European Charter of Local Self-Government, with the indispensable premiss for critically assessing the various forms in which certain provisions of the Charter are implemented and suggesting effective remedies to the imperfections encountered in some of the member states which have ratified it.

It should be added that this opportunity is also a testimonial to the merit of the Charter's authors, because it demonstrates how they managed to extract the most important fundamental principles from very different realities as they searched for a common culture of democracy and local self-government. The final draft of the Charter was undoubtedly not reached without difficulty, but the conflicting positions taken by those involved in it and the tensions inherent in them did not prevent common values from being asserted.

But this acknowledgement is not an end in itself. The laborious birth of the Charter and the difficulties encountered in its practical implementation vindicate the belief that those difficulties must not be skirted by proposing changes to the Charter: such an attitude would probably only undermine the Charter's prestige and strength, slowing down or bringing to a standstill the contracting parties' commitment to implement it.

Only the work begun by the Congress - the body directly and principally responsible for monitoring implementation of the Charter - can, in due course, bring about an interaction between the Charter and the existing legal systems.

This means on the one hand that the legal systems must be adapted to enhance democracy and self-government, and, on the other, that a developmental interpretation of the Charter must be thrashed out so that it can be more readily understood and more satisfactorily implemented. Clearly in practical terms, any examination of those aspects of the Charter that need to be clarified and reinterpreted will necessitate continuing for some time the work which is the subject of this report.
With this in mind, in the draft Recommendation prepared by the Group , it asks the Committee of Ministers to adopt, for the benefit of the Governments of the member States which have ratified the Charter, a Recommendation containing a certain number of points.

From the formal point of view, its determined pursuit of all these objectives has led the working group to propose improvements to the methods for monitoring implementation of the Charter, which are tending to become institutionalised. They are presented in the draft resolution explained in this report.

Amongst the most significant innovations proposed is the possibility for reports to be prepared on individual countries not only at the request of the local authorities of Council of Europe member states, through their representative associations or their delegations with the CLRAE, but also at the request of the Bureau of the Congress after consultation of the competent working group, or upon application to the Bureau by the working group in the light of the conclusions of the Committee of Independent Experts.

III. MONITORING THE IMPLEMENTATION OF ARTICLES 3, 6 PARA. 2, 7 PARA. 1 AND 8 OF THE CHARTER

We can conclude from this that the subjects selected by the working group responsible for the Charter's implementation, which will be presenting its findings at this session of the Congress and proposing the adoption of the recommendation and resolution mentioned earlier, were well and wisely chosen. The choice of these particular subjects should foster understanding of the Charter through constant comparison with the legal systems of the countries involved.

The subjects analysed by the group relate to Articles 3, 6.2, 7.1 and 8 of the Charter and are:

In connection with the preparation of reports on the situation of local democracy in the member states, the rapporteur also made several study visits to central and east European countries, while at the same time continuing the comparative analysis of the legal systems of the countries which have signed and ratified the Charter, within the working group responsible for monitoring its implementation.

It has emerged that even in countries with a well-established tradition of local self-government, unsatisfactory situations can arise which are not unlike the deficiencies found in other countries. While a central European country like Romania denies its elected local authorities full control over the staff working for municipal bodies, in one major western European country which can boast a healthy system of local self-government the municipal secretary, who wields considerable consultative power over all municipal decisions, is still to this day a civil servant in the employ of the Ministry of the Interior. In other western European countries, there are civil servants working in accounts departments who are answerable to ministerial bodies rather than to the local authority.

While it is true that, in Romania, excessive use has been made of discretionary powers to suspend and remove mayors, in Italy too, where such discretionary powers rightly do not exist, a mere 180,000 lire fine has been known to lead to the removal of a mayor and the dissolution of the municipal council. In the former case, the law must be changed to reduce discretionary powers but, in the second case too, the law must be amended to eliminate such a flagrant disproportion.

This leads back to the problem of the principle of proportion stipulated in Article 8 of the Charter. This is such an important issue that it merits recapitulation. To avoid imbalances of the kind quoted, some interpretative criteria are needed. The first is the general value of the principle of proportionality for any administrative regulation or act imposing a limit on self-government. The second is the unacceptableness of the distinction between supervision of activities and supervision of bodies. The third criterion, bound up with the first two, is that the meaning of the phrase "administrative supervision" should not be restricted to supervision carried out by the administrative authority and taking the form of an administrative act, but should be interpreted in the broadest sense and applied to all that concerns the administrative life of the municipality or other local authority, including the removal of mayors or the dissolution of councils, even when these acts are the necessary and automatic consequence of court decisions or judgments. The idea is not to challenge the power of the courts, but to make sure that a proper procedure exists, including the rights of the defence, and that careful provision is made in legislation concerning ancillary or principal penalties affecting the actual exercise of elected office.

The European Charter of Local Self-Government is the only internationally binding document of major democratic importance to guarantee the principle of subsidiarity. As well as being binding on those who ratify it, it protects fundamental values in the field of local self-government in all the member states of the Council of Europe.

For all these reasons it is to be hoped that the principles it enshrines will be observed even in those Council of Europe member states which have not ratified it. Their credibility in the eyes of states aspiring to rebuild their institutions on solid democratic principles is in the balance. The Congress is therefore under a moral obligation to intensify its monitoring of the Charter's implementation. In so doing it should be able not only to monitor those aspects which it has been asked to but also to carry out further monitoring operations in its own right. This would give the Congress the opportunity and, with the serious scientific backing of the relevant working group, the legitimacy to carry out, on a permanent basis, on-the-spot supervision of the conditions of local self-government in those countries which have accepted the principles laid down in the Charter (by ratifying or signing it) but have failed to comply with its fundamental provisions.

Before embarking on a detailed presentation of the application of the aforementioned articles of the Charter, your rapporteur wishes, on behalf of the working group, to express its gratitude to all the experts, including their Chairman, Professor Alain Delcamp, and congratulate them on the depth and quality of their work, the result of which is truly remarkable.

APPENDIX

REPORT on monitoring the implementation of the EUROPEAN CHARTER OF LOCAL SELF-GOVERNMENT

by Alain DELCAMP
European Local Government Association for Research (ELGAR)
Paris

SUMMARY AND PRINCIPAL CONCLUSIONS

This is the second general report since monitoring of the implementation of the Charter of Local Self-Government was introduced.

It is the outcome of the work of the group of experts appointed to assist the Working Group set up by the Congress and summarises national contributions (some of which gave rise to supplementary reports) submitted in response to a questionnaire drawn up by the Working Party. The contributions were the work of experts from the following 23 countries: Austria, Belgium, Bulgaria, Cyprus, Denmark (2), Finland, France (2), Germany, Greece, Hungary, Iceland, Italy (2), Luxembourg, Malta, Norway, Netherlands (2), Poland, Portugal (2), Romania, Slovenia, Spain (2), Sweden (2) and Turkey (2).

The group's terms of reference were different from those which had warranted the first consolidated report (the problem of the "enforceability" of the Charter in domestic law), in that they concerned only the implementation of a few articles. Narrower in scope, they were also an invitation to more concrete work, since at least one topic (supervision of persons) had been included as a result of information - not to say complaints - about certain countries, to wit one of the new democracies in central and eastern Europe and a western European country.

Four articles were concerned: Article 3 on the concept of local self-government; Article 6 para 2 on administrative resources and recruitment of local authority staff; Article 7 para 1 on the "free exercise of functions"; Article 8 on administrative supervision of local authority activities.

The general idea was to take stock of institutional relations between central authorities and local authorities.

As for the previous report, the information gathered covered a much wider area than the questionnaire originally intended. This is why it was deemed preferable to present a more ambitious report commensurate with the work done by the experts over a period of a year.

It was scarcely possible to stick to an "identification of the authorities responsible for relations with and supervision of (local) authorities". That is why Part I begins with a number of definitions following on from the attempts at clarification which the Council of Europe has already made in other bodies and then describes the institutional structure which, in the various countries studied, constitutes the framework for the central authorities' "relations" with and "supervision" of local authorities. This clarification was particularly necessary in order to take account both of the rules in force in federal and composite states (whereby the "central" authorities are in a great many instances "regional" authorities) and of the fact that, in the absence of a charter for regional self-government (currently being drafted), the Charter of Local Self-Government, pursuant to Article 13 thereof, may apply not only to "local" but also to "regional" authorities. Part I shows that the provisions of Article 2 to the effect that the principle of local self-government (and hence its protection) "shall be recognised in domestic legislation, and where practicable in the constitution" - a principle expanded upon in Article 8 - are on the whole respected. And the more recent the constitution, the more effective the protection.

As regards the authorities responsible for supervision, there is a dual trend towards devolution and hence both towards rapprochement with the authorities subject to supervision and towards their diversification (the supervising authorities are often collective bodies, and specific structures are increasingly found in financial matters).

Part II addresses the scope and practice of supervision of activities. There is a clear trend towards supervision only of compliance with the law, as provided for in Article 8.2, but supervision of expediency still exists in some states, not all of which have not entered reservations on this point. Supervision of expediency is particularly evident in financial matters, and this is no doubt something which needs to be considered. Similarly, ex-ante supervision is tending to be replaced by ex-post supervision, while the supervising authority has steadily fewer possibilities of drawing for itself (by suspending or setting aside the relevant measure) the consequences of any illegality it finds. A twofold problem is thus emerging: in countries where the power to intervene still exists, the local authority's means of defence need to be developed, whilst in countries where the supervising authority can no longer intervene directly, steps must be taken - more often than not of a judicial nature - to enable it nonetheless to ensure or restore compliance with the law. This last difficulty partly explains the resurgence - as a kind of countervailing measure - of supervision of individuals, a procedure which had to some extent fallen into abeyance.

Part III deals with conflict resolution procedures and in particular with the means which could be available to the supervising authority to remedy any shortcomings.

The scale of conflicts is closely dependent on the structure of authorities and the manner of their election. Conflicts are not rare, but statutory procedures for their organised resolution (bringing into play the responsibility of the executive, for instance, mentioned in Article 3.2 of the Charter) exist in but a small number of states.

Supervision of persons by the authorities can take a variety of forms, which are considered in ascending order of the threat they represent for local self-government. Substitution of action is possible in many situations, even if it is not formally known as such. Some explanation of its nature would no doubt be needed since, provided there are guarantees, it can enable temporary difficulties to be resolved without resorting to the extreme solutions of suspension or dissolution.

Suspension is more often than not a stage in a procedure which can result in the removal of a local elected representative, generally one who holds an executive function. It involves procedures of varying degrees of complexity and affording varying levels of protection for local self-government in a few countries only. The case on which the Congress produced a report of its own motion thus appears to be a relatively isolated one. Nevertheless, a revised explanatory statement on Articles 8 and 7 taken together would be most expedient for setting out certain minimum requirements which the relevant legislation and practice should meet.

Dissolution proceedings are, in contrast, much more frequent. On the whole they are a response to situations of deadlock, and in most cases, naturally, of political deadlock, which can nonetheless be assessed relatively objectively (too many vacant seats on councils, failure to elect an executive, etc). Cases of dissolution for other reasons are rare but do occur in some countries, on which surveys might perhaps be necessary.

Part IV reviews a topic with manifold implications, since it concerns the whole question of local authority staff policies.

Between a single "statut" to the at least theoretical freedom of each local authority, there exists a whole host of systems combining in varying degrees legislation and collective agreements. Whatever the system, local authorities have only limited influence over the shaping of the rules applicable, even if they are generally free to recruit whom they wish. The principle of auto-organisation in Article 6.2 is affirmed but is sometimes restricted in practice by official or unofficial, direct or indirect procedures (recruitment ceiling, for example). Staff policy is very much conditioned by variables external to the authority, notably financial constraints. Countries in which local authorities, whether they like it or not, have to employ state (central government) civil servants are not as rare as one might think, but those where the presence of such civil servants may entail indirect ex ante supervision are indeed rare.

To sum up, without claiming to be exhaustive, this second report explores the various situations in which relations are forged between central authorities and local authorities. A whole pillar of the Charter is thus analysed. The report's conclusions might provide the basis for a revised explanatory report on the Charter to mark its tenth anniversary and might prompt a number of further own-motion surveys to supplement the legal review of the Charter's implementation with on-the-spot appraisals.

INTRODUCTION

ORIGIN AND COMPILATION OF THIS REPORT

1. Monitoring implementation of the European Charter of Local Self-Government

This second preliminary report follows on from initial research carried out by the group of experts specially instructed to assist the working group appointed by the Congress of Local and Regional Authorities of Europe (at the time called the Standing Conference) to monitor application of the European Charter of Local Self-Government which was opened for signature in Strasbourg on 15 October 1985 and came into force on 1 September 1988.

The first report was drawn up in application of Resolution 233 (1992), which entrusted to the former CLRAE Committee on Structures, Finance and Management the task of setting up a satisfactory mechanism for monitoring application of the Charter by those countries which had ratified it. A six-member working group1, assisted by a group of consultants, was periodically to review the Charter's application in the national law of contracting States.

It was necessary first to check whether or not the provisions of the Charter had become enforceable in national legal systems and to examine to what extent the local and regional authorities2 could themselves rely on it before the courts (Article 11 of the Charter); these questions raised legal problems which went far beyond the specific problem of application of the Charter and, in particular, what it has since been agreed to term its "enforceability".

These topics were covered in the first part of the report submitted by Mr J.C. VAN CAUWENBERGHE (Belgium) to the first session of the Congress (31 May-3 June 1994)3.

It also proved possible to produce a second part, which was not originally intended to be in such detail, using the wealth of information supplied by the various national experts4.

This consists of an analysis, article by article, of the conditions under which the principles set out in the Charter have been taken into account in national legislation in the various countries.

The first report gave rise to a resolution and a recommendation by the Congress requesting that the working group continue to assist it, in particular through "a pluriannual work programme making provision for specific reports on a given article or paragraph of the Charter".

A new working group5 was therefore set up; it held its first meeting in Paris on 6 December 1994.

The new terms of reference of the group of experts

On that occasion the group of experts, which had met on three occasions to draw up the previous report, was instructed to draw up a second report more specifically devoted to "institutional relations between central and regional authorities and local authorities".

The working group considered that the theme chosen should be broken down into four sub-themes:

1.  identification, at central and regional levels, of the institutions responsible for the political and administrative supervision of local authority bodies and assessment of their powers;

2.  the kind of supervision which central and regional authorities may exercise in the event of dysfunctions in local authority bodies;

3.  supervisory measures in respect of persons (suspending or dismissing local elected representatives, dissolving local councils). The group particularly stressed this point since cases had been observed in some of the new democracies in central and eastern Europe where supervision of persons had not infrequently taken the place of supervision of acts;

4.  direct and indirect supervision of staff management in local authorities.

The working group felt that study of these various themes corresponded in fact to monitoring application of:

- Article 3 (concept of local self-government), which affirms the need to respect above all the autonomy of local authorities;

- Article 6, paragraph 2, concerning administrative resources and, specifically, recruitment of the staff of local authorities;

- Article 7, and in particular paragraph 1, which refers to the "free exercise of their functions" by local elected representatives;

- Article 8, administrative supervision of local authorities' activities. Here the group wondered what could be the basis, in the absence of a specific article or paragraph, for limiting supervision of persons and invited the group of experts to clarify this point.

Compilation of the report

A questionnaire was compiled immediately by Mr BJERKEN (Sweden) and Mr DELCAMP (France), with assistance from Mr Ricardo PRIORE. The working document dated 15 December, sent out to the members of the group of experts, was subdivided according to the four sub-themes decided on.

A first batch of replies was received by the Secretariat between March and May 1995; they were included in a preliminary report at the meeting of the working group in Strasbourg on 10 and 11 May. The replies received in time for inclusion in this preliminary report were from Austria, Cyprus, Denmark, Finland, France, Germany, Italy, Luxembourg, Netherlands, Portugal, Romania, Spain, Sweden and Turkey.

As usual, the experts' meeting made it possible to clarify a number of points, but also to give further thought to the method being used.

Although the questionnaire was very detailed and covered a relatively restricted field, we could see that a number of the replies submitted information of a general nature on the administrative organisation of the State concerned, supervisory procedures, new legislation and the status of staff.

On analysis, it also appeared that replies on sub-themes 2 and 3 were relatively redundant, while for the specific item of supervision of persons, a field little known - and indeed unknown in a number of countries - specific information, particularly statistical information, was often insufficient.

Two proposals put forward by the rapporteur were then adopted:

- An outline report of wider scope than originally envisaged, paying particular attention to the logical articulation of ideas and presentation of data rather than the often over-detailed subdivisions of the questionnaire. A letter was sent to the experts about this.

- They were also sent a request for further information. The purpose of this was to standardise the data, particularly with regard to methods of financial supervision, the existence or otherwise of supervision of expediency in respect of own powers, the existence or otherwise of prior supervision, any procedures for substitution of action, additional statistics concerning supervision of persons.

For the second meeting of the working group on 7 December in Strasbourg, six further contributions were available (Bulgaria, Greece, Hungary, Iceland, Norway and Slovenia) and eight supplementary replies (Denmark, France, Italy, Netherlands, Portugal, Spain, Sweden, Turkey). For the meeting on 8 February a 22nd report was received concerning Malta.

This preliminary report has been drawn up on the basis of all these contributions, for consideration by the group of experts meeting in plenary session on 8 and 9 February 1996.

As already indicated, the present report strives to follow the outline drawn up jointly in May 1994, the aim being to give more general information than the original questionnaire intended. Nevertheless, despite the volume of information supplied by the national experts, it cannot be considered exhaustive.

PART I

IDENTIFICATION AND LOCATION OF STATE AUTHORITIES RESPONSIBLE FOR RELATIONS WITH AND, IN PARTICULAR, SUPERVISION OF LOCAL OR REGIONAL AUTHORITIES

I – DEFINITIONS

A) WHAT IS MEANT BY "CENTRAL" AND "REGIONAL" AUTHORITIES?

To make comparison possible, we felt it necessary to draw an initial distinction between unitary States and federal or composite States.

1. In unitary States
These are the large majority of States, whatever the organisation model they may follow. Central authorities here should be understood as being the representative authorities of the State whether they are actually located at the centre (ie in the capital) -  eg ministries - or, where there is a State organisation at local and regional level, at that local or regional level (eg the French "Préfet" or equivalent).

2. In federal or composite States

A distinction must be made between federal or central authorities on the one hand and federated authorities or, in States which are not strictly speaking federal (Spain, Italy), those authorities, whatever their title, which compose these States and are themselves endowed with State prerogatives (legislative power in particular). For simplicity's sake, and as we did in Tampere in January 1995, we shall call them "autonomic" in order to clearly distinguish them from "decentralised" authorities, whether local or regional.

It is above all at regional level that ambiguities must be removed, as the title "region" is often used indiscriminately for "region-States" (Länder in Germany and Austria, regions in Belgium and Italy, autonomous communities in Spain) and "region-local authorities" (eg region in France or county in Denmark), to which the provisions of the Charter apply and which must be protected from any abusive supervision whatever its provenance.

In the federal or composite States, it is precisely the federated States or autonomic states (and not the federation) which are theoretically responsible for supervision and even, in many cases, for the legislation applicable to local and regional authorities.

This system is best established in Germany. In other States responsibility may be shared between the federal and federated authorities (Austria), but the situation is particularly complex in those States which have only recently completed their evolution towards federalism (Belgium) or which are still in an intermediate position between a unitary State and a federal State (eg Italy).

The case of Belgium is interesting in that it is the regions which are theoretically responsible for relations (particularly financial) with and supervision of the local authorities, but both the federal State and the communities - components of the Belgian State based on linguistic criteria - may also be called upon to intervene (for instance concerning culture, education or social aid for the communities). We refer to "ordinary tutelage" (tutelle ordinaire) for the regions and "specific tutelage" (tutelle(s) spécifique(s)) for the federal State or the communities. Municipalities endowed with special linguistic status come directly under the federal State.

The organisation of local authorities is also the responsibility of the federal State (Article 162 of the Constitution, currently under revision).

In Spain, the system of relations between central and local authorities is twofold. The Constitutional Court has qualified it as a "bifront" (decree of 23 December 1982). It depends on the subject matter, and local authorities deal, as appropriate, with either the "State of the autonomies" (central State) or the autonomous community.

In Italy, the system of relations and supervision is twofold, being both central and "regional", but as the regions have in practice delegated few of their responsibilities to the local authorities - as allowed for and encouraged in the Constitution and legislation - "relations between the regional authorities and the local authorities are much less important than those between the authorities of the central government and the local authorities" (Mr Balducci).

B) AUTHORITIES RESPONSIBLE FOR "RELATIONS" AND AUTHORITIES RESPONSIBLE FOR "SUPERVISION"

Whatever the type of State, it is also important to make clear what is understood by authorities responsible for "relations" with local and regional authorities and authorities responsible for "supervision". They are often the same, but a distinction must be drawn.

The term "relations" is probably too vague, as it could cover equally relations with the government authorities - which may be only formal or functional or administrative -and relations the local authorities maintain with the judicial system or perhaps with the Parliament, since it is the Parliament which draws up most of the rules concerning them.

Conversely, the term "supervision" may appear too restricted and exclusively legal.

Moreover, although this supervision is the responsibility of the "central authorities", it is not theirs alone. Describing the authorities with this responsibility entails a very precise description of the procedures and bodies, many of which - ad hoc committees or commissions, courts or even private bodies (audit companies) - do not belong, and belong steadily less, to the usual administrative hierarchy.

We must therefore attempt to give a closer definition of the concept of "central authorities".

Those drafting the Charter paid more attention to the centre/periphery relationship within the State organisation, considering that the main threats to local self-government could only come from central authorities unwilling to allow the development of other administrative authorities, even if they were endowed with the legitimacy of election. An inter-institutional approach was therefore to the fore.

Seen in this light it is obvious that the authorities of the executive were considered first. We shall therefore understand by "central authorities" those authorities dependent on the Government, whether this is central or federal or "federated" or "autonomic", and it is these authorities which will be described whenever it is a question of "relations" in general. We shall refer to the interlocutors of the local authorities rather than to the authorities in the State administration responsible for relations with local authorities.

As regards supervision, on the other hand, we should probably go further, both in defining "supervision" and in describing the authorities whose responsibility this is.

By supervision we should therefore understand all the procedures by which the central State as a whole (and not only the executive) seeks to ensure that the local and regional authorities exercise their responsibilities properly in accordance with the rule of law, whether legal or financial responsibilities are involved. The bodies responsible for this supervision could thus equally well be the authorities belonging to the administrative hierarchy - it is they alone to which the expression administrative supervision referred to in Article 8 applies - or ad hoc committees or commissions or judicial bodies.

We shall also take supervision - as we are encouraged to do by the terms of reference conferred by the working party - to mean all the means by which the central Government may guide or influence the decisions taken by local authorities, whether this means the supervision of expediency which it may in certain cases be called upon to exercise over acts, or its possible interventions in the operation of those authorities by statutory or de facto, direct or indirect, means. The main criterion will therefore be to show to what extent the supervision mechanism as a whole is or is not contrary to the provisions of the Charter which, it should be recalled, stipulates firstly that "any administrative supervision... may only be exercised according to such procedures and in such cases as are provided for by the constitution or by statute", but immediately afterwards states that this "supervision of activities" should normally "aim only at ensuring compliance with the law and with constitutional principles". Supervision of expediency is only possible in respect of activities corresponding to the exercise of delegated responsibilities (as opposed to own responsibilities or, in the words of the Charter, exercised by local authorities "under their own responsibility" (Article 3.1).

Thirdly, exercise of this supervision must remain "in proportion to the... interests which it is intended to protect".

II - CENTRAL AUTHORITIES (or, where they are endowed with State prerogatives, regional authorities) WITH RESPONSIBILITY FOR RELATIONS WITH LOCAL OR REGIONAL AUTHORITIES (where these are only decentralised authorities)

A) AT NATIONAL (OR REGIONAL) LEVEL

The interlocutors of the local authorities are, in principle, the governments and administrations dependent on them.

No ministry appears to have a monopoly since, owing to the wide range of their responsibilities, local authorities inevitably develop administrative relations with most areas of public activity (finances, town-planning, transport, etc).

There is nevertheless a tendency to assign special responsibility to a particular ministry, especially oversight of inter-institutional relations, and as a result for it to coordinate activities concerning local authorities within the Government.

This ministry is usually called the ministry of the "interior" or equivalent.

This is the case in Germany (Länder), Belgium, Cyprus, Denmark, France6, Luxembourg, Finland, Hungary, Netherlands, Poland and Turkey.

In Spain there is, at central level, a general directorate for territorial cooperation within the office of the State Secretariat for Territorial Administrations, itself attached to the Ministry of Public Administrations.

In Iceland, the ministry responsible is that of Social Affairs.

In Portugal, the specialised ministry is the Ministry of Planning and Territorial Administration.

In Romania, there is State Secretariat responsible to the Prime Minister called the department for local public administration. In Malta the relevant department is answerable to the Prime Minister.

A number of special cases should be pointed out:

- Sweden, in two respects. The ministry with particular responsibility is, since 1994, a specialised section of the Ministry of Finance. Secondly, we are informed that the Swedish Government comprises not only ministries, which are usually small, but also almost a hundred ministerial agencies, all of which may have relations with local or regional authorities and have a sort of general right of supervision.

- In Italy, although the Ministry of the Interior also has a particular role, the Ministry of the Civil Service has called for further thinking with a view to grouping all relations between the centre and the local authorities in a new structure.

- In Bulgaria, the ministry responsible is the Ministry of Regional Development and Construction, but there is also within the offices of the Head of the Government a department of local administration which in principle acts as link between the Prime Minister and the governors of the regions.

- In Hungary, alongside the Ministry of the Interior, which is responsible for relations between the centre and the local authorities, there are two ministries which appear to have a particular role - the Ministry for Environmental Protection and the Ministry for Regional Development, which coordinates government activities in this field. Moreover, supervision of local public services appears to rest with various ministries according to their responsibilities.

- In Slovenia, there is strictly speaking no ministry, but a "Government Bureau" responsible for reforming the local authorities; the Bureau is under the authority of the Secretary General of the Government.

B) AT TERRITORIAL LEVEL (DECONCENTRATION)

In most of the States, the Governments (or the specialised ministries) have departments or authorities depending directly on them and which exercise their responsibilities at the level of a particular territorial district (often identical to that of the local or regional authorities). This type of organisation corresponds to the concept, of French origin, of deconcentration, which leads to qualifying these authorities as "deconcentrated" rather than "decentralised", the latter term referring to the elected authorities of local and regional government units (called "collectivités locales" in the French text of the Charter and "local authorities" in the English text).

Deconcentrated authorities exist at the level of specific districts in some of the German Länder (Regierungsbezirke), in the Austrian Länder (Governor answerable to the Federal Government at Land level, Bezirkshauptmannschaft answerable to the governments of the Länder at supra-municipal level).

It is at the level of the départements, provinces or counties, where these exist, ie in general the second level of decentralised administration (what is often called the regional level), that we generally find a deconcentrated level of the central State. This is the case in Belgium (Governor), Spain, France (Préfet), Greece7, Hungary8, Italy (Prefect), Romania (Prefect), Poland (Voïvode) and Turkey (Governor).

In Norway, alongside the county Governor, who is answerable to the Ministry of the Administration, there are specialised civil servants for health and education.

In Sweden, the State administration in the county is directed by a Governor assisted by a bureau whose members are elected by the county council and then make their decisions as representatives of the State.

Representation of the central State on the Austrian model is also to be found at regional level in Spain and in Italy, where there is a "Government Delegate" to both the regions and the autonomous communities.

It is also at regional level (in fact at the third level) that there is a representative of the central State in Bulgaria and Portugal, and in countries with three levels of government such as France or Greece, where there are representatives of the State at the level both of the département/department and of the region.

In Luxembourg there are district commissioners (albeit at a level more supra-municipal than "departmental or provincial" owing to the size of the country). District bureaux are also to be found in Cyprus. Lastly, in Finland, where Article 50 of the Constitution provides for two levels of territorial administration of the State, there are moves towards a provincial administration in which elected authorities would have a greater place.

C) FURTHER OBSERVATIONS AND COMMENTS

The foregoing information suggests that there are considerable similarities among the different administrative organisations of the countries of Europe.

All the countries are indeed faced with the same problems.

Should there or should there not be a specific ministry responsible for coordinating relations between the central or regional State and the local authorities? At first sight, coordination of this kind would appear to be difficult, because of the extent of local responsibilities which in practice are related to those of most ministries.

On the whole, however, there is a tendency towards this. Indeed it is probably in the interests of the local authorities that this should be the case. Coordination could simplify relations, and experience in those countries where there are true "Ministries of the Interior" shows that the problems facing local authorities are on the whole better understood by those in charge and it often happens that the ministry concerned acts as their advocate with other ministries. In fact it is often this ministry which prepares the texts which concern them. Coordination of this kind - which is in the nature of government activity9 - has the advantage of ensuring overall treatment of problems and of working in the framework of the concept of local self-government.

Conversely, relations which are over-sectoral have the disadvantage of relegating local self-government to the background as regards policy making and implementation (environment, social protection etc), with local authorities running the risk of becoming agents for the implementation of national policies.

- The existence of "deconcentrated levels" appears to be more developed than might at first have been thought. It is no doubt very useful for local authorities to have interlocutors corresponding to their territorial level, the more so the greater the freedom from central control these authorities have to act. The question of coordination arises at deconcentrated level too. Does the deconcentrated level represent all the ministries or only the Ministry of the Interior? Is it a good idea for the State, whether central or regional, to be represented by a senior civil servant who himself has the task of coordinating the deconcentrated services of the various ministries?

This is a very topical question and is the subject of constant debate within those States which have long had such an organisation. It should nevertheless be noted that the new democracies of eastern and central Europe, which are mostly unitary States, tend to use this type of organisation, even where there were no equivalent bodies in their previous structure. Recent surveys by the Council of Europe have shown for example that the Albanian authorities felt it necessary to complete the organisation of local self-government which they had just set up by creating prefectures (Act of 22 September 1992).

- Thirdly it should be noted, mainly but not exclusively in the federal States, that the function of representative of the central or regional State is sometimes entrusted to the executive of the local authorities (usually at the second level). The most significant case of this is Federal Republic of Germany, where it is the elected executives of the Kreise which are responsible on behalf of the Land for exercising supervision of the municipalities. The Austrian Federal Government may also delegate some of its supervisory responsibilities to the district administrative authorities set up by the Länder. These have the task of exercising all the responsibilities of common interest which are not allocated to any other authority (such as the municipalities). The Netherlands offer the perfect example of what is called functional division, where the burgomaster at local level and the Queen's Commissioner at provincial level are both the executive of the corresponding local or regional authorities and representatives of the State.

- Lastly, it should be noted that, naturally - and this is what separates the question of "relations" from that of "supervision" - many contacts of a more or less informal nature exist between central or regional authorities and local authorities, whether through the contacts the major organisations of elected representatives necessarily maintain with the central authorities, in second (parliamentary) chambers, where they exist and where their composition involves a criterion of territorial representation, or more frequently through the party system and, more generally, through democratic dialogue itself.

Finally, a number of original attempts to organise institutional relations may be mentioned. For example, Articles 117-119 of the Spanish framework law of 2 April 1985 provide for the institution of a national committee on local administration, chaired by the Minister for Public Administrations and comprising representatives of the local administrations and the State administration. A "joint committee", but of a political nature, chaired by the Prime Minister, is also to be found at national level in Poland.

This type of organisation taking in the federal State and its components is naturally more frequent in federal states, but it does not strictly speaking constitute a supervisory system as provided for in the Charter since it concerns relations which may be qualified as "inter-State". We shall see nevertheless that while this is true in principle, it must be qualified not only in certain States whose evolution towards federalism is not complete (Italy) but also in certain federal States (Austria). There is indeed in Italy a "State-regions" committee, but all Italian regional legislation must also be signed by the State representative in the region. This representative (in fact the Government) may oppose the legislation within a thirty-day period for reasons of either legality or expediency. The administrative activities of the regional authorities are in the main also subject to supervision by a "supervisory committee" chaired by the representative of the State, with members appointed by the Council of Ministers.

III - AUTHORITIES RESPONSIBLE FOR SUPERVISION

A) THE CONCEPT OF "ADMINISTRATIVE SUPERVISION

Article 8 of the Charter confines itself to the concept of "administrative" supervision. This term could be confusing. It covers not only supervision on the part of the administration but all the forms of supervision not strictly the responsibility of the courts.

Legal action against decisions by local or regional authorities has a different logic, that of Article 6 of the European Convention on Human Rights. It is a component of what a number of national reports term "passive supervision" (Finland, Netherlands, Sweden in particular). Although it is very important, we do not feel that study of this right falls within the scope of the study of supervision by the central or regional authorities.

Similarly, as was also stated in the explanatory report on the Charter, Article 8 is not concerned with the appointment or activities of an ombudsman - an institution considered in the Scandinavian reports as one of the central authorities responsible for supervision - or of any other official body having an investigative role.

Conversely, we feel that the concept of administrative supervision should include not only the procedures of legal supervision but also those concerning financial matters, which indeed often give rise to the creation of specific bodies or structures.

Finally, in this section we shall confine ourselves to the wording of Article 8 which refers only to the supervision of activities.

B) THE AUTHORITIES RESPONSIBLE FOR SUPERVISION

As already mentioned, the authorities responsible for supervision are, in principle, the central authorities in a unitary State and the "regional", ie federated or autonomic, authorities in a federal or composite State.

There is a trend, whatever the type of State, for supervision to be entrusted to the authorities answerable to the centre (be this the central State or the "regional" State) closest to the local authorities.

Thus we are able to see a certain distribution of tasks according to the level of authorities concerned.

Where these are municipalities, supervision10 - whether it be called tutelage or supervision - is entrusted to the deconcentrated authorities of the State - whether regional or central - the Préfet in France and Romania, the Governor in the Netherlands, the Landrat in Germany, the Governor in Norway or Sweden, etc. In Turkey this deconcentration is not yet definitive (1994). Note should be taken of a trend, to which we shall refer later, towards substituting for a single representative of the State a number of "councils" whose members are representatives of the local authorities.

In Denmark, although the 14 supervisory bureaux (1 per county) are chaired by a State civil servant (statsamtsmanden), they also comprise 4 members elected on a proportional basis by the county council from among its members.

In Italy, the supervisory body for municipalities and provinces is at regional level (CORECO) and, since Act 142 of June 1990, is composed of 5 members (one civil servant from the Ministry of the Interior and 4 members elected by the regional Parliament).

This is the rule in the Netherlands, where supervision is the responsibility of the standing delegation comprising the Queen's Commissioner and assessors elected by the provincial council. The same arrangement has also been adopted in Wallonia.

In the case of second-level decentralised local authorities - which in principle in most countries may not exercise tutelage over the first level11 - tutelage or supervision is the responsibility of the central authorities. This is the case in the Netherlands, Denmark, Sweden, etc. In Greece, it is the regional authority of the State which supervises the departmental councils and the departmental authority of the State which supervises the demes and the municipalities.

On the other hand, in States such as France, Italy or Belgium, it is the same deconcentrated authorities (Prefect or Governor) which are responsible for administrative supervision of the municipalities, provinces or départements.

Whatever the level, these authorities base their action on a general right of supervision which, in accordance with the Charter, derives from the constitution or legislation.

C) THE LEGAL FOUNDATION FOR THEIR ACTION

This derives from the Constitution. We do not see the same differences here as exist among the provisions concerning self-government. They are on the whole much shorter and we must look to legislation to find an exact description of the organisation of the supervisory system, distribution among the authorities, means of obtaining redress, etc12.

Here we may compile a statement of the information on this point in the national reports, possibly supplemented by further information given in documents produced, in particular, by the Council of Europe.

1. Constitutions and legislation of the states of northern, western and southern Europe

In Germany, the laws of the Länder determine the conditions for supervision of the local authorities subject to the "right to self-administration" guaranteed by Article 28-2 of the Basic Law. In Austria, the constitution is much more detailed on this point (Articles 115 to 120), particularly as the federation itself has a supervisory right laid down in the 1967 Supervision of Municipalities Act, which applies concurrently to the provisions of the 9 municipal acts of the Länder (Gemeindeordnungen).

In Belgium, Article 162-6 of the 1830 Constitution provides that "the law consecrates... the intervention of the tutelary authority or the federal legislative power to prevent violation of the law and damage to the public interest". These old provisions and those of Article 162-3 on special tutelage are nowadays implemented by three regional acts. The system applicable to the municipalities of Cyprus is based on an act of 1985.

In Denmark, the constitutional provisions have remained practically unchanged since 1849. Article 82 states that "the right of the municipalities to manage their own affairs independently under the supervision of the State shall be laid down by Statute".

In Finland, the traditional system of supervision has recently been completely amended and trimmed by Section 8 of the Municipal Act of February 1995 on the subject. In France, Article 72 of the Constitution both defines the right of local authorities to govern themselves freely through elected councils and, "in the départements and the territories" entrusts to a "Delegate of the Government" responsibility "for the national interests, for administrative supervision, and for seeing that the laws are respected". These last provisions have lost part of their substance since the Act of 2 March 1982 (amended by the Act of 22 July 1982 following the decision of the Constitutional Council of 23 March in the same year).

According to Article 102, paragraph 5 of the Greek constitution, "the State shall supervise local government agencies, without infringing upon their initiative and freedom of action". A new supervisory mechanism was set up by legislation approved at the end of 1994 (particularly Act no.2240).

In Iceland, Article 76 of the Constitution provides that the right of autonomy of local authorities under the supervision of the Government must be determined by legislation. Chapter IX of Act 8/1986 lays down the supervisory powers of the Ministry of Social Affairs.

In Italy, Article 124 gives constitutional recognition to the existence of a government commissioner in each region, and the subsequent articles set out the conditions for the supervision of regional legislation. Article 130 is devoted to the supervision of the activities of the municipalities and provinces: "A regional body, constituted in accordance with procedure established by the laws of the Republic, exercises... control over the... decisions taken by the... Communes and other local bodies." The current composition of that body and the conditions for its supervision are laid down in Act no.142 of June 1990.

In Luxembourg, the rules governing administrative supervision are laid down in the 1998 legislation adopted in application of the Constitution. Article 114 in particular defines the powers of the district commissioners as regards the local authorities. The system in operation in the Netherlands results from both the Constitution (Article 132) and municipal legislation which was considerably amended in 1993. In Portugal a specific law (no.87/89 of 9 September 1989 on supervision of local authorities) gives effect to the 1976 Constitution. In Turkey, the supervisory power of the Governor derives from Article 127 of the 1982 Constitution, but the corresponding legislative provisions have changed little since the 1930s (R. Keles).

2. New Constitutions of States in central and eastern Europe

"The regional governor shall ensure... the safeguarding of the national interests, law and public order, and shall exercise administrative control": Article 143(3) of the Constitution of 12 July 1991 of the Republic of Bulgaria. The supervisory system was set up under the terms of the Act voted the same year - and amended in 1995 - on self-government and local administration.

In Hungary, a whole chapter of the Constitution defines and lists the elements of local self-government. The decisions of the "local representative body" may not be supervised except as regards legality (Article 44a.1). Chapter X of the 1990 Local Authorities Act (No. LXV) voted, in accordance with the Constitution, by a two-thirds majority, defines "relations between the local authorities and the State" and the "protection of the right to local self-government".

Article 160 of the Constitution of 28 June 1992 of the Republic of Estonia provides that "the organization of local government and the supervision of its work shall be determined by law". A similar provision is contained in Article 74 of the Constitution of 23 April 1992 of the Republic of Poland, which has been given effect by a number of acts, in particular the Local Authorities Act of 8 March 1990.

The Romanian Constitution, although its interpretation has led to some ambiguity13, is particularly clear concerning the supervision of legality: "The Prefect may challenge, in the administrative court, an act of the County Council, of a Local Council, or of a Mayor, if he deems it unlawful. The act thus challenged shall be suspended de jure" (Article 122-4). Articles 98, 99 and 100 of Act No.69 of 1991 develop the text of the Constitution: "In his capacity as representative of the Government, the Prefect shall ensure that the activities of the local councils and the judets are in accordance with the law...".

In Slovenia, "State authorities shall supervise the lawful performance by local government bodies of their duties and functions" (Article 144 of the Constitution of 23 December 1991).

Generally speaking it is in legislation that specific systems of financial supervision involving specialised authorities are outlined; they are often more judicial than truly administrative in nature.

THE SPECIFIC CASE OF FINANCIAL SUPERVISION

Although it is not generally the case (for example the authorities are the same in countries as diverse as Denmark, the Netherlands and Turkey), financial supervision is sometimes entrusted to civil servants other than those who carry out administrative supervision proper. Thus in Portugal the General Inspectorate of Finances exercises general supervision over all budgetary and financial activity, while in Malta such supervision is the responsibility of Local Government Auditors appointed by the Auditor General.

In most cases, financial supervision involves specialised bodies or authorities.

These may be audit bodies, which may be public (State Audit Bureau in Hungary) or private (Denmark, Sweden), compulsory (Denmark) or not (Sweden)14. In Germany the municipalities may choose between a public or a private body.

More recently regional chambers or courts of auditors have been created. This is the case in Spain where there is a national Court of Auditors as well as a number of regional courts set up by the autonomous communities. In France a regional chamber was set up in each of the 22 regions in 1983; the same situation obtains in Poland (1992 Act) and in Romania. On 1 January 1995 the national Court of Auditors was empowered to supervise local authorities in the exercise of their delegated powers.

There is also an "auditor general" in Cyprus and a court of auditors in Portugal and Turkey (the latter is to be deconcentrated).

Lastly, it must not be forgotten that apart from the specific provisions in a number of countries which still govern local authorities' borrowing capacity, these authorities are also subject to the de facto supervision exercised by credit bodies, particularly where these have retained public status and hold a dominant position in the field (eg the Provinces Bank in Turkey).

PART II

THE SYSTEM OF SUPERVISION OF ACTIVITIES

The naturally complex system of supervision becomes even more so if we attempt to compare more than a score of different legal systems. We must therefore organise the gathering of information around a number of simple concepts which enable us not only to measure current major trends but also, and above all, to ascertain how the various systems stand in respect of the obligations enshrined in the Charter.

In this part we shall confine ourselves to supervision of activities, the only type of supervision referred to at present in Article 8, and we shall distinguish in turn between the supervision of compliance with the law - the only type of supervision authorised by the Charter in regard to own responsibilities - and the supervision of expediency; supervision methods; the consequences of supervision and the guarantees and remedies open to decentralised local and regional authorities.

THE CONTENT OF SUPERVISION : SUPERVISION OF EXPEDIENCY AND SUPERVISION OF COMPLIANCE WITH THE LAW

A DISTINCTION NOT ALWAYS EASY TO MAKE

This distinction is crucial for the text of the Charter, which explains, moreover, why a number of reservations (Austria, Greece, Netherlands) were made concerning paragraph 2 which states that "any administrative supervision of the activities of the local authorities shall normally aim only at ensuring compliance with the law and with constitutional principles". This apparently clear wording may nevertheless leave room for interpretation.

- The concept of "compliance with the law" may itself sometimes be difficult to appreciate in reality. It cannot be defined solely in formal terms (ie as compliance with statutory provisions). In material terms, supervision limited to compliance with the law may be defined negatively as not authorising the supervisory authority to substitute its own appreciation for that of the local authority. Conformity with the Charter therefore commences with the elaboration of clear texts leaving as little room for interpretation as possible.

- Reference to "constitutional principles" cannot suffice in cases where, as we have seen, the constitution itself authorises supervision likely to go beyond mere compliance with the law.

This is the case with the Austrian and Netherlands constitutions. Logically, these countries have made reservations. But it is also the case of the Belgian constitution, where reference to the "general interest" could authorise derogations from the Charter15. The case of Turkey is more disturbing in that the country ratified the Charter in 1989 but has left in Article 127 of its Constitution the expression "safeguarding the public interest": despite the confusion here, no amendment has been proposed, not even at the most recent revision on 26 July 199516.

- Problems of application may also arise from the difficulty of distinguishing what is covered by own responsibilities - for which only supervision of compliance with the law is authorised - and what falls within the delegated responsibilities in respect of which "administrative supervision may however be exercised with regard to expediency by higher-level authorities"17.

- Lastly, it is difficult to distinguish between the scope of supervision and the way in which it is conducted. It goes without saying, for example, that ex ante supervision is much greater potential danger for local self-government - particularly if it includes an approval procedure - than ex-post supervision, even if it only concerns compliance with the law. In the same way it could be thought that supervision carried out by a collegial authority, and particularly a judicial body, constitutes less of a risk than supervision carried out by a single civil servant18.

Thus in checking the conformity of a supervisory system, we must consider the overall arrangements, without prejudice, naturally, to examination of the manner - often of decisive importance - in which relations with the local and regional authorities are conducted both inside and outside the supervisory system.

B) THE SITUATION IN POSITIVE LAW

As regards positive law, among the states covered by a report, those countries which retain supervision of expediency in respect of activities undertaken as own responsibilities are in a minority and there has in recent years been a clear trend towards removing or at least limiting it. Where supervision of expediency does still exist, it often concerns local and regional finances.

There are seven countries where forms of supervision of expediency still exist: Austria and the Netherlands, which have not lifted their reservations despite the very considerable lightening in 1994; Belgium and Luxembourg (in the latter case despite considerable lightening as a result of the new municipal powers act of 1988); Italy, although as paradoxical as it may seem only as regards regional laws; Cyprus, and above all Turkey.

Article 119a(8) of the Austrian Constitution submits to the approval of the supervisory authority local decisions considered as having special financial significance and involving supralocal interests too. The Land furthermore has the right, under another paragraph of the same article (Article 119a(2)), to examine the financial management of the local authorities as to its "thrift, economy and efficiency". The supervisory authority must nevertheless use its powers circumspectly. The Austrian representative, Mrs Bucher, nonetheless pointed out that including these possibilities in the Constitution was a way of minimising their scope.

In Belgium supervision was lightened by federal legislation in 1984 (mainly by discarding a number of approval and authorisation procedures) but is now covered by "decrees" (equivalent to laws) of the Flemish and Walloon regions and "orders" in the "Brussels-Capital" region.

The regions exercise "general tutelage" which may include suspension or annulment of activities contrary to the law or the "general interest". Thus, in the framework of "special tutelage", they have power of approval over the most important activities concerning the budget, accounts, staff status and the sub-contracting of services. Approval enables the tutelary authority to assess the conformity of the activities of the municipalities and provinces in relation to their own interests.

The survival of these procedures is softened by the improved legal guarantees offered to the authorities being supervised: the obligation to give reasons for decisions, notification periods, procedures for implicit approval.

Although "legal" tutelage is tending to become lighter, the same cannot be said of financial tutelage. This stems from the frequent imbalance of local budgets in the 1980s19. Aid from the State or the regions thus entails dispatching inspectors who very strictly supervise the implementation of stabilisation plans.

This last procedure also exists in the Netherlands, but cannot be considered in itself as an infringement of the principle that any supervision of expediency is prohibited. Other countries which make clear their attachment to strict supervision of compliance with the law also allow this, albeit with the guarantee offered by intervention by an outside body (auditor)20.

The real derogation lies, as in Belgium, in the possibility open to the tutelary authority to suspend, amend or annul any decision it deems contrary to the general interest - which allows some discretion. There are also still approval procedures which make it possible to supervise the expediency of local decisions, although such procedures have been reduced, since 1 January 1994, to that which is strictly necessary in the interests of the local authority.

In Luxembourg, where the concept of "general interest" has also been retained in the Constitution, supervision may result in procedures for approval for certain decisions to be granted by the Ministry of the Interior - mainly property leases, sales, exchanges, etc in excess of a given amount, or certain scales of charges.

In Cyprus, the 1985 Municipal Act left approval procedures for the annual budget and major local regulations (concerning staff, scales of charges and taxes, loans, town planning and refuse collection) in place.

The situation in Turkey differs from the situations previously described in that the scope of supervision of expediency is hardly restricted and remains relatively vaguely defined. The rules governing it have scarcely changed since the 1930s.

Italy offers the paradox of allowing supervision of expediency only in respect of regional laws, at least in theory. The Government Commissioner may call for a second vote and the dispute may be submitted, as appropriate, to either the Constitutional Court (legality) or the national Parliament (expediency). The second type of supervision is nevertheless less common.

It is interesting to note that supervision of expediency does not appear in the legislation of the most recent signatories of the Charter, whether it be Bulgaria, Hungary, Poland, Romania or Slovenia.

In contrast, alongside older States where supervision of expediency still exists in principle, it should be noted that in very many countries borrowing is subject to approval if the sum involved is greater than a certain amount. Among the countries already mentioned, this is the case, for example, with Spain. When a Spanish municipality wishes to borrow from abroad or from private investors, it must apply for authorisation from the Minister for Economic Affairs. Borrowing is unrestricted in Spain only if the operation does not exceed certain limits (5% of resources, with outstanding debt less than 25% of the budget). In Denmark, there is an interesting development in this respect. Since 1980, financial investments and borrowing are no longer subject to approval procedures. The local authorities must merely abide by the rules laid down by the Ministry of the Interior. On the other hand, there are, in the framework of the dialogue between the central government and the major national associations of elected representatives, agreements on financial and tax policy, but these agreements do not entail any compulsory measures.

It is also in the financial field that ex ante supervision procedures are most frequently encountered, but even these are tending to diminish.

II - WHEN SUPERVISION IS CARRIED OUT: EX ANTE SUPERVISION AND EX POST SUPERVISION

We must first isolate two phenomena:

- the obligation to inform the authority responsible for supervision, which exists widely; this information should precede or coincide with the entry into force of the of the act or decision, but really entails ex ante supervision only where it is the first stage in an approval procedure;

- supervision which may be qualified as "internal" since it is entrusted to a civil servant working within the local authority. This exists in varying forms: in the Netherlands where the burgomaster and the Queen's Commissioner, who are both executives of the local and provincial authorities and representatives of the central power, are guarantors of the legality of decisions, but above all in Italy, where it is the municipal secretary, a civil servant answerable to the Ministry of the Interior (and who is also head of the municipal administration (Article 51 of Act 142 of June 1990)) who must approve all acts even before they enter into force. For sociological reasons (see below), this latter type amounts in fact to a form of indirect supervision of expediency. The "Italian model", which could probably be closely compared with the Spanish situation where the secretary of "corporaciones locales" is also required to point out illegalities21, is found in eastern and central Europe, and particularly in Romania. At least initially, it makes it possible to compensate for the difficulties of recruiting a high-quality civil service but it is not without danger, particularly as this civil servant (appointed by the Prefect in Romania) may have powers delegated to him directly by the State administration.

True ex ante supervision - apart from the case of approval - is tending to disappear in favour of ex post supervision.

This was one of the aims of the Municipalities Act in the Netherlands which came into force on 1 January 199422, following numerous recent instances of legislation in the same direction: Denmark (1980), France (1982), Finland (1995)23. It is also worth noting that the new provisions adopted in central and eastern Europe, under the influence of the Charter but also as a result of many contacts effected as part of the LODE programme, have from the outset made ex post supervision the rule.

One of the most recent examples which should be noted is that of Portugal where major administrative contracts (public works contracts, supplies contracts, recruitment contracts of public servants) as well as appointments of local civil servants are submitted for preventive control to the Court of Auditors.

Lastly, it should be noted that there is still general ex ante supervision of acts of local and provincial councils in Italy. The acts or decisions of the executives are, for their part, submitted to the CORECO (regional supervisory board) for ex ante supervision only if a certain percentage of the council, which varies according to the population, so wishes.

The obligation to inform the supervisory authority is covered by provisions of varying scope in those countries where the functions of local executive and State representative are clearly separate.

Some consider the supervisory authority to have a general right to be informed. This is the case in Austria, where the Constitution stipulates "a right to information" and a "right to inspection" in favour of the supervisory authorities (Article 119a(4)). This is also the case in Denmark (Article 63 of the Local Government Act), where the local authorities are required to supply all the necessary information. This is also true in Spain, with regard either to the State or to the regions, depending on the subject matter. In Luxembourg legislation gives the district commissioner a particularly extensive "supervisory" role (Article 114, already mentioned, of the 1988 Act).

Other countries have made it an obligation to transmit acts to the supervisory authorities. Article 56 of the Spanish Act of 2 April 1985 thus provides that the local authorities must send a copy of contracts concluded, acts undertaken or decisions made to the State or regional authorities, as appropriate. In Italy, all regional laws must be transmitted to the State representative, and all decisions of municipal and provincial councils must be transmitted to the CORECO24. In Bulgaria, the local councils (but not the mayors) must supply the Governor with the acts they promulgate within seven days of their promulgation. The same obtains in Poland, but the obligation lies with the mayor. In Romania, the secretary must do this within 10 days, unless the law provides otherwise (Article 49g of Act 69 of 1991).

In France, only the most important acts must be transmitted (regulations, decisions concerning staff, contracts, etc). The list has been reduced to the minimum compatible with the decision of the Constitutional Council annulling the original text which reduced the State representative to the level of an ordinary citizen but it is clearly stated that transmission suffices to make the act enforceable forthwith25.

III - THE EFFECTS OF SUPERVISION

Here a distinction must be drawn between those countries where the supervisory authority itself has power to sanction and those countries where, on the one hand, this power lies with a body - which remains administrative - specially created for the purpose, and those, on the other, where neither the authority in the central state hierarchy nor the ad hoc supervisory body may of itself take action in respect of the impugned act.

The first category includes those States where the supervisory authority possesses the power of rectification, ie where it may take the place of the local authority to bring the act into conformity with the law or with a "general interest". This is the case in Luxembourg and the Netherlands.

The supervisory authority also has the right of annulment and a fortiori of suspension in Belgium, the Netherlands and Turkey. The same obtains in Poland, where the voïvode may suspend an act and declare it void within a 30-day period. In Bulgaria, the Governor may suspend an act of a local council it deems illegal and apply to the court within a month of transmission. It may annul directly the decisions of a mayor (although these do not have to be transmitted). Police decisions are covered by a specific system (they may be annulled with the agreement of the Minister for the Interior and on application within three days from a police authority).

The second group includes those States which, in an attempt to render supervision, "objective" have set up collective bodies, usually including both State civil servants and members elected by local assemblies or at the level next above (Denmark, Italy and, in certain cases, the Netherlands - province bureau in the case of ex ante supervision). These bodies are required to give their opinion or to make decisions, which may be appealed against.

The third category, closest to the spirit of the Charter, includes those States in which the supervisory body cannot itself take action against the acts of local authorities. The authority has to be informed only in order to be able, if necessary, to refer to the appropriate administrative courts, where they exist, any infringement of the law it may note (Denmark, Spain, France, Hungary, Poland, Portugal, Romania). In this last country, referral to the courts has the effect of suspending the act. In the other countries, it is up to the court to decide26 whether application of the act should be suspended pending its decision (France: a decision may even be delivered within 48 hours in the event of a threat to a personal or public freedom).

In Sweden, and more recently in Finland, the supervisory authority may only report an illegality. It is up to the citizen to apply to the courts. In most of the other countries, the citizen may naturally apply to the courts at the same time, but the fact of the authority's reporting an illegality is always healthy from the point of view of transparency and information.

Lastly, it would doubtless be excessive to imagine that judicial supervision operated in any mechanical way. More often than not there is, in fact and at law, preliminary dialogue between the supervisory body and the body supervised, and it would be pointless to deny the influence the supervisory authority may have over local and regional authorities, even if such influence does not attain the structural nature it has in the Dutch system under the name of "medebewind" (which could be rendered as co-management).

It should be noted that in Hungary, Article 99 of the Local Authorities Act also organises dialogue of this kind. The same is true in Slovenia and Spain, where the supervisory authority may, within 15 days of transmission, require the author of the illegal act to rectify the situation.

IV - MEANS OF OBTAINING REDRESS

A distinction must be drawn, depending on whether the supervisory authority has -or does not have - the possibility of suspending, annulling or rectifying an act, between the means of obtaining redress open to the local authority whose decision is contested, and the judicial means available to the supervisory authority which notes an illegality and wishes to make it cease.

As regards the means of obtaining redress open to local authorities, legislation in some countries provides firstly for an appeal to the administrative authority above of the supervisory authority. This is the case in the German Länder. In Denmark, the local authorities may apply to the Minister for the Interior concerning decisions of the supervisory boards.

Very broadly, the local authorities may avail themselves of judicial means of redress either under ordinary law (Belgium, Denmark27, Luxembourg, Poland, etc), or under special provisions. In Germany, the local authorities may apply to the administrative courts; in Austria the Constitution itself provides for the right of appeal before either the Administrative Court (Articles 119a(9) and 131 and 132), or the Constitutional Court (Articles 119a(9) and 144; 139(1) and 119a(6)). In the Netherlands, the new Act which came into force in 1994 gave local authorities the right to apply to an "impartial court", a right which until then was enjoyed only by the ordinary citizen.

In a growing number of countries, the situation is now completely the opposite, and the problem is less one of organising the defence of the local authority than of defining the ways in which the supervisory authority may put an end to an illegal situation. Administrative supervision thus becomes judicial supervision. The State representatives, either after fruitless dialogue (eg Hungary), or directly, have no choice but to apply to the courts. In general these are the administrative courts (Spain, France, Hungary, Poland, Portugal, Romania). They may also be constitutional courts (Slovenia, on referral by the Government).

In the Scandinavian countries, it is up to the citizen to apply to the appropriate court, as the supervisory authority itself may do no more than identify an illegality and denounce it.

PART III

RESOLVING CONFLICTS WITHIN LOCAL AUTHORITIES

It had originally been decided to dissociate instances of political malfunctioning of local authorities28 from the administrative measures intended to stop such malfunctioning29 or disputes of a legal nature.

The preparatory work for the report demonstrated the difficulty of isolating political disputes from legal disputes, as the latter are often merely the visible part of the problem or, conversely, reveal the former.

Many experts felt that the series of questions in parts 2 and 3 of the questionnaire were somewhat redundant, and it therefore seemed preferable to group together the replies concerning a single part and present them in such a way as to bring out the various aspects of the subject matter covered. In fact this distinction was introduced to make it possible to highlight those situations where the supervisory authorities were using their powers (legal or administrative) for political purposes (thereby rendering themselves guilty of what might conventionally be termed "misuse of power"). The wording of the questionnaire was, in addition, heavily influenced by the situation noted in certain countries of central and eastern Europe.

In order to set the debate in context, it was decided to describe first the methods of resolving conflicts, where they exist, at the level of the local authorities themselves. Only then would the main question from the point of view of the Charter be raised, viz. intervention by the central or (in the case of "region-States") regional authority.

I - INTERNAL POLITICAL SOLUTIONS

A) THE DECISIVE ROLE OF THE STRUCTURE OF THE AUTHORITIES AND METHOD OF ELECTION

The existence of conflict is naturally very largely dependent on the actual structure and method of election of the local authorities. A number of cases may be isolated. In Portugal, for example, the mayor is the person at the top of the winning list, while the council is elected by proportional representation. There are no procedures for resolving conflicts, and the report notes that this situation is not always satisfactory. Thus the persons elected know from the outset that they will need to find a "modus vivendi". Similar situations may also be found, for example, in the German Länder, where the mayor is elected directly (Baden-Württemberg or Bavaria), or, more recently, in Hungary, where it is noted that more than one-third of mayors do not belong to the majority coalition on the council.

In France, conversely, the mayor and his majority enjoy great stability although the electoral system is of a proportional type. If one list obtains an absolute majority in the first ballot, it automatically obtains half the seats plus the share due by application of the rule of proportional representation. The same mechanism is used in respect of the list obtaining most votes if a second ballot is necessary.

The risk is also less in those countries - a majority - where the local executive is rather weak and is collective and where management is carried out through "committees" (English or Scandinavian models).

The situation is probably more difficult in those States which have instituted direct and separate election of the mayor contexts where democracy has not yet stabilised (the new democracies of central and eastern Europe: Romania, Hungary and Slovenia, for example).

It is precisely the absence of regulations, whether spontaneous or institutional, at the level of the local authority itself which creates the risk of intervention by the central or regional authority. In fact, it is rare that conflicts of this type necessitate such intervention, even where it is possible, .

B) INSTITUTIONAL RESOLUTION OF CONFLICTS AT LOCAL LEVEL

Although its terms on this point are ambiguous30, the Charter does not evade the problem since its Article 3, paragraph 2, states clearly that the elected councils may "possess executive organs responsible to them".

This text means that the local executive must itself be legitimated by election, whether direct or indirect31. Several countries have interpreted this as implying the existence of "responsibility" of the parliamentary type. In a number of cases, new legislation takes this direction (Finland and Sweden since 1995, the Netherlands, partly, since 1994).

The possibility of tabling censure motions entailing, if they are carried, the overthrow of the executive exists at local level:

- In Spain (where this is a "constructive" censure motion, ie the council is required to designate substitutes). Little use is made of this.

- In Luxembourg, one-third of the members of a council may table a censure motion if the draft budget is rejected. If the motion is carried, the members of the college of burgomasters and aldermen are declared (by the Minister for the Interior or, for urban areas, the Grand Duke himself) to have stood down.

- In Poland, in particular after communication of a report by the Regional Audit Chamber. The motion may apply to the municipality as a whole or to the mayor alone. The council may proceed with replacement within one month.

- In the Netherlands, until the new Municipalities Act came into force, the municipal and provincial councils could only express their lack of confidence in one or a number of members of the council (excluding the burgomaster and the Queen's Commissioner, who can be removed from office only by the Crown)32. This lack of confidence may be the starting point for a procedure for removal from office on expiry of a cooling-off period (between 15 days and 3 months). The new Municipalities Act has introduced the possibility of collective responsibility of the executive.

There is a similar trend in Finland and Sweden.

In Sweden, where there is a high degree of political stability, it has been possible, since January 1995, for a local assembly to dismiss the local executive in the event of a change in the majority or reorganisation of the executive (new article in Chapter 4, Section 10a, introduced by Act 690 in 1994).

In Finland, if a local executive considers that a decision by its council is illegal, it may require a fresh debate and decision. If the conflict persists, the executive must apply to the regional administrative court. The new Municipalities Act, in force since 1 July 1995, enables the council to express a vote of no-confidence in the various organs elected by it and force the resignation of the elected member(s) in whom confidence has been lost.

Such procedures do not exist in formal terms in Denmark.

It is a pity that the same is true in the new democracies of central and eastern Europe where, we have seen, the conditions for appointing local organs are likely to result in conflicts between mayor and council. The situation in Romania is further complicated by the fact that the mayor, elected by direct suffrage, is flanked by a deputy mayor elected by the council. In Bulgaria, where it is rare for there to be a majority in councils, the mayor may experience difficulty in exercising his functions. He has virtually only one way of imposing his point of view on the council, and that is to use his suspensive veto where he feels that the decisions of the council are contrary to public interest or the law. The veto may be overridden by a second vote by absolute majority.

In general, even in the absence of a formal procedure, it would appear to be difficult for a local executive to retain its position if it does not enjoy the lasting confidence of a majority within the council on which it depends, either for its existence or for its activities. Frequently, moreover, intervention by the central authority, where it is allowed, is only aimed at drawing conclusions from an internal political conflict which has caused an impasse. It is not impossible, however, although this depends on the political culture of the particular State, for the supervisory authority (particularly if it is deconcentrated) to act as conciliator. This was possible in France, particularly before decentralisation. It is probably true of the Netherlands, where the local executive has dual legitimacy, or again probably in Luxembourg where, for example, Article 1-3 provides that the district commissioners may attend the proceedings of local authorities "when they see fit".

II - INTERVENTION BY THE CENTRAL OR REGIONAL AUTHORITIES

There are few situations where the central or regional political authority has grounds for intervening in a conflict arising within a local authority. However, legislation in many countries provides for more or less complete or diversified procedures where the supervisory authority may have to intervene to make up for an inadequacy in the operation of the local authorities, whether this is the result of ill-will (which must be duly established), a circumstance rendering it impossible (criminal conviction) or difficult to maintain an elected representative in his function (succession of serious illegalities), or a political deadlock damaging to the normal operation of public services.

A. THE VARIOUS FORMS OF SUPERVISION OF ELECTED REPRESENTATIVES AND LOCAL BODIES

All these measures taken together are sometimes referred to as supervision of persons or bodies, as distinct from supervision of acts. In fact, this opposition is rather artificial, as the two categories of supervision are merely two aspects of the same supervision of legality.

The paradox lies, however, in the fact that supervision of persons - to which particular attention should perhaps have been paid because of the greater risk it represents in respect of political freedoms - is not specifically mentioned in the Charter and is not found, at least in this form, from the legislation of a number of countries.

There are explanations for this, of course. The protection of persons is the result of a logic different from that of the supervision of acts. The former is more often based on criminal law than on administrative law, when it is not purely and simply more a matter of democratic tradition than part of the law - hence the survival, in a number of countries in western Europe, of legislation going back to the 19th century which is hardly ever applied.

Certain forms of supervision may be classified equally under supervision of acts or supervision of persons. This is the case where the supervisory authority takes the place of the inadequate local authority and takes a specific measure in its stead.

Lastly, not all countries have legislated to cover every social eventuality, some preferring to allow local difficulties to resolve themselves pragmatically. Nevertheless, this is not always without disadvantages.

The question of supervision of persons is topical nowadays precisely because of the development of local democracy in countries seeking new rules and which are not yet able to rely on sufficiently tried and tested democratic values. The Charter itself is not entirely without blame for this state of affairs.

Under its influence, the new States have been encouraged to set up from the outset systems for the supervision of activities which are highly effective from the democratic point of view (reduced to supervision of legality alone, and very often entailing judicial rather than administrative supervision). The situation has thus passed from one extreme, dominated by the hierarchical principle and blurred by an omnipresent bureaucracy, to another where the supervisory authorities have perhaps found themselves too defenceless. The temptation has then been very strong for them to use the loopholes in the protection of persons. This has been particularly obvious in Romania and occasioned a specific and original report to the Congress33.

We will attempt here, therefore, to review the rules which exist in this respect in order to draw some conclusions or make some suggestions for the future.

We shall distinguish successively between those means of intervention which are mainly concerned with individuals and those mainly concerned with collective bodies. This succession will also coincide with the increasing degree of gravity, and therefore of the potential risk for local self-government:

- substitution of action,

- suspension followed by removal from office of an elected representative,

- dissolution of local bodies.

The first two types concern elected representatives. Substitution of action is intended to compensate for their shortcomings or their lack of action. It should be provided for statutorily and in general is only possible as part of well-defined procedures (in particular, including prior notice to remedy the situation).

The second poses greater problems as it affects the actual exercise of mandates. It may be considered that, if it is not surrounded with sufficient legal guarantees, it may be damaging to the "free exercise" of the local mandate, explicitly provided for in the Charter (Article 7-1).

Intervention by the supervisory authority may be on a wider scale and involve the very existence of the body. It leads to termination of the mandate conferred by the electorate before its normal expiry. Because of its importance, it is naturally surrounded by greater vigilance on the part of the population, such that it is only used in extreme circumstances, where the normal functioning of the local public authorities is interrupted (large number of vacant seats, impossibility of operating over a long continuous period). It is intended to be rapidly followed by the holding of fresh elections. This is a type of measure of last resort and very rarely a truly political one. Vigilance is nevertheless necessary.

B. SUBSTITUTION OF ACTION

This supervision procedure refers to the supervisory authority's carrying out an act in place of the local authority.

It occurs where the local authority demonstrates inadequacy, either because it is unable to take action, or because it refuses to take action and perform an action provided for in law. It is in this sense that supervision of legality is involved.

While it is understandable where delegated responsibility is involved - the local authority is then in a hierarchical relationship with the supervisory authority (eg when the mayor acts as State representative in law-enforcement matters) - it can only be exceptional, or impossible, where it is a matter of own responsibilities.

In all cases, such supervision must be provided for statutorily and only be possible after a procedure demonstrating clearly both the need to take action and the local authority's failure to act.

Supervision of this kind exists in many countries' legislation. It is sometimes a stage in a process which may lead to dissolution.

It exists in Germany, Austria, Belgium, France, Italy, Luxembourg, the Netherlands and Turkey.

In Germany, a distinction must be drawn depending on whether it is the local council or the executive, whatever its form (which, as we know, varies from one Land to another), which refuses to exercise a statutory responsibility. In the event of the council refusing, the mayor or the executive is authorised to act in its place. If the mayor or the executive also refuse, a special representative of the State may be appointed temporarily.

In Austria, the power of substitution is authorised by the Constitution (Article 119a(7)) in "cases of absolute necessity".

In Belgium, there is a variety of legal terminology for this type of supervision. Substitution of action is also called "coercive", "constraining" or "suppletive" tutelage.

It is provided for in particular by Article 266 of the new Municipalities Act:

- where the council refuses to enter certain compulsory expenditure in its budget, the tutelary authority (Governor or provincial council) may, after hearing the council, enter it of its own motion;

- more generally, the tutelary authority may act only in respect of a statutory obligation on the local authority "in matters of local or general interest". The local body must have been given notice to perform the obligation. If the situation persists after notice has twice been served, commissioners "may travel to the place to gather the information requested, or take the necessary measures".

In Cyprus there is no general provision of this kind, but the writer of the contribution (Mr O. Odysseos) quotes a case concerning town-planning legislation. The council of ministers may decide, in the event of the local authority's failure to act, to confer exercise of the responsibility temporarily to another authority or person.

In Finland, there is strictly speaking no power of substitution but, in the event of a local authority's failure to act, the supervisory authority may set in motion the statutory administrative enforcement procedure: interview of local representatives, establishment of the precise facts, reasons for the intervention, possibility of appeal to the Supreme Administrative Court.

In France, the power of substitution has been maintained since decentralisation but restricted to specific circumstances strictly defined in law and subject to a special procedure. Articles 2 and 34-3 of the Act of 2 March 1982 provide for the possibility of the Prefect taking the place of the mayor or chairman of the département council in the event of inaction on their part in law-enforcement matters. Such substitution must be preceded by the serving of notice to act. These provisions may also be applied in financial matters where the budget has not been approved by the requisite date. The Prefect may "finalise" the budget in place of the council, but only after obtaining the opinion of the Regional Chamber of Auditors.

In Greece, intervention of the tutelary authority, for example in the event of failure to include compulsory expenditure in a budget, was not unknown. It is not certain that this kind of tutelage has survived the current reform.

In Italy, the power of substitution does not seem to exist in relation to local authorities (we shall see that the solutions envisaged in the event of inaction are much more brutal). It does exist, however, in respect of the regional authorities, in application of Article 2 of Act no.382 of 1972, "in the event of the regional bodies not carrying out their compulsory duties within the required time ...". The council of ministers is then empowered to take whatever steps are necessary for and on behalf of the regional bodies.

Substitution of action is a normal form of tutelage in Luxembourg. It may take two main forms:

- the sending of special commissioners, rather as under Belgian law, if two warnings remain without effect, to gather information and take the measures prescribed by legislation, regulations and the Minister of the Interior.

- the making of decisions by the tutelary authority itself, but only in a very limited number of cases, particularly as regards the budget.

In the Netherlands, action by the supervisory authority in the event of a local authority failing in its obligation to carry out its duties is founded on Article 132-5 of the Constitution. A special commissioner may be appointed as a temporary measure in the event of serious failure by the local authority to meet its obligations (for instance in the absence of a decision on the budget).

Where these obligations are provided for in special legislation (in this case, the medebewind), that legislation provides for other authorities, "hierarchically superior" or not, to act on their behalf and at their expense. If the assembly does not make the necessary decisions within the required time, the mayor or his deputies are authorised to intervene (Article 124 of the Municipalities Act). If the mayor or the assembly fail in their obligation to perform their duties correctly, it is the Queen's Commissioner or, failing him, the provincial councillors who assume responsibility (Article 125). This provision has one important failing: under such circumstances, the local authorities may not appeal to any of the courts.

In Turkey, substitution of action is provided for only in very specific circumstances, for example in connection with town planning, where the council refuses to reserve a plot of land for the construction of a public building or performance of a public service.

Thus, in different ways and in differing degrees, "substitution of action" is a fairly widespread form of supervision, although it apparently does not exist, in theory, in certain countries, mainly in Scandinavia (Denmark, Sweden) and Portugal. It should be noted nevertheless that in Iceland the Municipalities Act provides that in the event of non-performance of its financial obligations, a local council may be replaced temporarily by a special body appointed by the Government. It is also interesting to note that when an official does not perform his duties in good time, the Government may suspend the payment of transfers and instigate proceedings to have him fined.

Strictly controlled by legislation and intended to cope with temporary malfunctioning, substitution is a lesser evil than the removal from office of an elected representative or the dissolution of an assembly.

One question remains, viz. whether substitution can be applied to own responsibilities as well as to delegated responsibilities, or only to delegated responsibilities. The common point appears to be that it must be provided for by special legislation and must be intended only to overcome a temporary difficulty.

C) SUPERVISION OF PERSONS: SUSPENSION AND REMOVAL FROM OFFICE OF ELECTED REPRESENTATIVES

This section will deal with the matter of administrative sanctions likely to be incurred by a local elected representative individually.

We shall naturally exclude removal from office following court convictions involving sentences incompatible with the exercise of public office.

1. Suspension

This consists of temporarily depriving an elected representative of the power to exercise his functions. More often than not it concerns a local elected representative with executive responsibilities. Most of the time it is a preventive measure.

The German and Italian reports make no reference to this point. Moreover, it appears that this type of measure is not possible in Cyprus ("even for the courts"), Spain, Finland, Portugal (except by the administrative court) or Sweden.

In other countries, suspension is possible but at the initiative of other elected representatives. Thus in Denmark a mayor who refuses to carry out his functions may, as a first step, be replaced by another member of the council; only if he persists may a removal procedure be envisaged.

In the remaining countries, suspension by the supervisory authority is explicitly provided for in legislation and is generally merely one stage in a procedure.

In Austria, this type of measure is a matter for legislation by the Länder. It is possible in respect of a mayor (Bürgermeister) and deputies (members of the Gemeindevorstand) in the Länder of Salzburg, Styria and Vorarlberg in the case of violation of legislation and regulations which is either premeditated or constitutes gross negligence. In Belgium, a burgomaster or alderman may be suspended for a maximum of three months by virtue of Articles 82 and 83 of the new Municipalities Act.

In France, suspension of an elected representative is part of a disciplinary procedure governed by Article L.122-15 of the Municipalities Code. This article was amended by the Decentralisation Act. Suspension is one of the possible sanctions where a mayor or his deputy commits a fault in the performance of his functions or commits acts unrelated to those functions but "whose nature and gravity are irreconcilable therewith". In addition there is the possibility of suspension "in time of war" (L.124-5). These circumstances are clarified in administrative case law.

The procedure guarantees the rights of defence (hearing the person concerned independent of any criminal proceedings, gathering information, giving reasons for the decision). If suspension is decided on, it may not exceed one month; it may be appealed against to the administrative court - although the appeal does not suspend the decision; it applies only in respect of executive functions and does not deprive the elected representative of his seat on the municipal council.

In Greece, sanctions against local elected representatives derive from the Constitution itself, which provides guarantees: "The disciplinary punishments of suspension and removal from office of elected agents of local government agencies, with the exception of cases involving ipso jure forfeiture of office, shall be pronounced only with the consent of a council composed in its majority of regular judges" (Article 102-5b). The procedure is set out in Articles 168-173 of the Municipal Code and Articles 19-20 of Act 2218/94 as regards elected representatives at the second level. Suspension may be ordered for three months in the case of serious shortcomings, misuse of power or serious unintentional negligence.

The consultative council referred to in the Constitution is appointed every two years by a decision of the State representative and comprises, apart from judges, one civil servant from the Ministry of the Interior and representatives of the categories of elected representatives concerned. The elected representative may present his defence to the council within 10 days of being accused, and the council must give its opinion within 2 months. The suspension decision may be appealed against to the Minister for the Interior, whose decision may in turn be appealed against before the Council of State. Such appeals have the effect of suspending the decision.

The suspension procedure also exists in Luxembourg, the Netherlands and Turkey (since 1982). In Luxembourg suspension may concern the burgomaster or a member of the aldermanic council "for commonly acknowledged misconduct, fault or gross negligence" (Articles 41 and 63 of the Municipalities Act). It may not exceed three months unless it is renewed by reasoned decision. This is a discretionary decision taken by the Grand Duke or the Minister for the Interior. The suspended representative is replaced after one month. In the Netherlands, the suspension procedure is merely the consequence of substitution (see above). In Turkey, the Minister for the Interior, directly or on instruction from the Governor, may suspend a council or a mayor if legal action has been taken against them for non-performance of their functions. The council is convened within 10 days to elect another mayor temporarily.

This suspension procedure has also been introduced in certain founding texts in the new democracies in central and eastern Europe. But it was the use made of it which provoked the Council's intervention. The provision is not a general one: such a possibility does not exist, in fact, in Bulgarian legislation on local government, and nor does removal (except in the case of criminal conviction, of course, but this is not action by the tutelary authority). No provision appears to have been made for the suspension of bodies in Hungary or in Slovenia (even, apparently, by a court).

Thus the only cases to which we should pay particular attention are those of Poland and Romania.

In Poland, the possibility of suspension exists but appears to be highly exceptional. If there is no hope of redressing a situation blocked by the failure of the local elected authorities to perform their duties, such authorities be suspended for 2 years (or less if elections are due, but only on a decision by the Prime Minister). Previously, the local authorities could state their case before the voïvode; they were encouraged to provide their own solutions and the (elected) council of the voïvode would have been consulted. The decision of the Prime Minister may of course be appealed against before the courts.

It is in Romania that protection appears to have been the weakest. Suspension and dissolution are not provided for in the Constitution; they were covered by Act no.69-1991 on local public administration, which was adopted before the Constitution. The prefect may suspend from his functions a mayor or councillor whom he has asked to resign (Articles 34 and 41). It is the vagueness of the reasons adduced for such decisions which appeared the most questionable to the Congress delegation; it is sufficient for the elected representative to "contravene the general interests of the State or violate public order" or "jeopardise by ill-will the interests of the municipality and town". The local executive may also be suspended by the prefect for the duration of a judicial investigation (Article 46). The measures applicable at municipal level are also applicable at departmental level.

These objections are a fortiori valid in the case of removal from office.

2. Removal from office

As has already been said, removal from office is the conclusion of a procedure in which suspension is merely a stage.

Another case should nevertheless be mentioned first, namely automatic removal from office, to which particular rules apply. This occurs either after a court decision or to sanction a certain number of consecutive unjustified absences. The cause may be defined as a number of sessions or a period of absence, but in any event it involves objective criteria. Removal itself may be ordered, according to the case, directly by the supervisory authority (France), by the local council (Portugal), or by a court to which one or other of these or even an ordinary citizen has applied for a finding that the mandate is not being fulfilled (administrative court in Portugal). A few examples are given in the reports: in Belgium, a member of a provincial council who remains absent from sessions for one full month may be removed from office by the Governor.

We should also leave aside those situations where, because the local executive is appointed (Belgium at province level, the Netherlands at local and province levels), it can also be removed by his hierarchical superior.

The cases where a local elected representative may be removed by the supervisory authorities therefore appear in fact to be fairly limited. This final sanction exists in Belgium, France, Greece and Romania.

In Belgium, a burgomaster or alderman may be removed for "commonly acknowledged misconduct or gross negligence"34. The procedure is inter partes. The authority which orders dissolution is not the ordinary supervisory authority35 (here, the regional authorities): for a burgomaster, the authority is the King himself; for an alderman it is the provincial Governor, acting on the reasoned approval of the provincial council.

Persons who have been removed are replaced by their respective councils (thus there is no substitution by the central power). They remain ineligible for two years. It is possible to appeal to the Council of State.

In France, removal, which may be ordered before or after suspension, is the final stage in the procedures already described, but whereas suspension may be ordered by decision of the Minister for the Interior, removal requires a decree of the Council of Ministers and entails ineligibility for one year. Appeal lies to the Conseil d'Etat, which may order a stay of execution.

In Romania, removal is ordered by the Government, on a proposal from the prefect.

To fully appreciate the part of these provisions which may appear exorbitant and contrary to the letter of the Charter, we must look at what happens in practice. It will be seen from what follows that cases of dissolution of councils are much more frequent than those of dismissal of a local elected representative, even if he is the executive of the local authority.

D. DISSOLUTION

The first point to be made is that the list of countries which permit the dissolution of councils does not always coincide with the list of countries which accept the removal or suspension of an elected representative.

Dissolution is possible in States which do not permit either suspension or removal; this is the case in Germany, Cyprus, Spain, Italy and Portugal.

However, and this may appear paradoxical, dissolution is not possible in Belgium, where removal is permitted.

In Germany, if the local authorities (executive and council) refuse to carry out their duties in accordance with the law, they may be dissolved by the supervisory authority. Dissolution does not however entail loss of eligibility for the following elections. There are practically no instances.

The Austrian Constitution (Art.119a(7)) and the federal Local Authorities Act (Article 10-1) refer to the right to dissolve the municipal council. It may be used where the council refuses to exercise its responsibilities (both its own and those delegated to it) and the supervisory authority does not have any alternative. The council may also be dissolved in the absence of a quorum. The right to dissolve local councils lies with the Governor of the Land (Landeshauptmann) or the Land government (Landsregierung). The council has a right of appeal to the federal Minister for the Interior and subsequently, depending on whether its own or delegated responsibilities are involved, to the Constitutional Court or the Administrative Court.

In Spain, the dissolution of local councils is provided for in Article 61 of the outline law of 2 April 1985 in the case of failure to meet constitutional obligations or of administration detrimental to the general interest. The power lies with the Council of Ministers, at the request or according to the opinion of the Autonomous Community, after consultation of the national committee on local self-government and with the approval of the Senate.

In France, the measure is taken at the same level (decree of Council of Ministers), but there is no clearly defined procedure. The circumstances could be malfunctioning of the council, impossibility of electing a mayor and deputies, loss of moral authority of the municipal council, exceptional circumstances, etc.

In Greece, the possibility of dissolution is statutorily recognised in respect of both first- and second-level councils. Dissolution is pronounced according to a procedure similar to that which applies for suspension or removal of an elected representative. For a local council, a ministerial order is sufficient (with appeal within 15 days to the Council of Ministers); for departmental councils, a decree is required. The authorities make their decision on the basis of a report by the deconcentrated authorities. An appeal on the ground of misuse of authority may be lodged with the Council of State; such an appeal has the effect of suspending the decision.

In Italy, there are two methods of dissolving a municipal or provincial council:

- by decree of the President of the Republic on a proposal from the Minister for the Interior (Act no.142 of 1990 and Legislative Decree no.81 of 1993) in the case of repeated violation of the Constitution and legislation or where the functioning of the local authorities is not assured. It is interesting to note that the cases listed in the law refer to de facto situations including the mayor's resignation, incapacity or defeat, or failure to approve the budget. An interim delegation manages affairs pending fresh elections.

- in the same form but pursuant to the Organised Crime Act (no.55 of 1990 and no.221 of 1991), which authorises the dissolution of a council suspected of being involved with or under the influence of a criminal organisation.

In Luxembourg, dissolution is the ultimate remedy to an impasse. Provided for under Article 107-3 of the Constitution, it is pronounced by the Grand Duke. New elections are organised within three months. In Malta dissolution is ordered by the President of the Republic on the advice of the Prime Minister in the event of persistent failure to apply the law, of failure to vote the budget or failure to elect the mayor.

In Portugal, dissolution may be ordered in the event of political or administrative malfunctioning (absence of budget or exceeding permitted limits for staff expenditure in the budget). This power lies, statutorily, with the central Government, which must nevertheless obtain the opinion of the "decision-making body of the authority at the level next above that of the authority under scrutiny".

In Romania the instances in which a council may be dissolved are fairly similar to those in which an elected representative may be suspended or removed (violation of general interest or the law, action deliberately undertaken counter to the interests of the local authority). Dissolution is pronounced by the Government on a proposal from the prefect.

Lastly, in Turkey, lastly, a local council which does not fulfil its obligations may be dissolved by the Council of State at the request of the Minister for the Interior on application from the Governor. Dissolution may be justified by malfunctioning of a purely administrative nature (meeting in circumstances other than those provided by law) or by political stances.

We can see from this that the dissolution of councils is, on the whole, the final means available to governments to put an end to a blocked situation. The spirit of it has nevertheless developed much since it was instituted by the older democratic countries. In France, for example, the provisions date back to the 19th century, a time when dissolution could indeed be a powerful weapon in the hands of the central government. As Mr Whoerling pointed out, it is only used nowadays to settle the internal dissensions of assemblies and it can happen that an impasse is orchestrated by political minorities in order to provoke early elections.

Lastly, we shall look at a number of specific situations which were pointed out in the national contributions.

Some may be qualified as "technical". In Cyprus, for example, the only possible instance in which a local authority can be dissolved is where the population under its jurisdiction remains below 400 for at least three years (Act 111 of 1985).

This category of "technical dissolutions" also includes those consequent upon structural changes in the local authority such as changes in its geographical boundaries. The Polish report quotes, for example, the case of the division of a local authority area. A provision in the French Municipal Code also covers the case of changes to the territorial limits of a municipality (Art.L.112-20-1). The Dutch report mentions this too, but also refers to the case of "reorganising the structure of the decentralised administration". Dissolution here is merely the consequence of an essential act affecting the life of the local community. The problem is dealt with at the level of the act which is the origin of the reorganisation.

Among the technical or "objective" causes of dissolution, mention should also be made of the shortage of numbers (less than half the councillors - Italy; less than half and impossibility of attaining two-thirds by calling on the candidates next on the lists to take their seats - Romania).

There are, lastly, those countries where dissolution is only possible through an authority other than the supervisory authority. In most cases this is the parliament. Although the case has not arisen, the Danish report notes that the only way to resolve a deadlock resulting from the total impossibility for a council to carry out its functions would be legislation providing for new elections. Intervention by the National Assembly is specifically provided for in Slovenia in cases where the council fails to adopt the budget, does not sit, or proves itself incapable of carrying out its functions over a six-month period. This procedure is also possible in Hungary: in the event of a local authority not respecting the Constitution, the Minister for the Interior may suggest to the Government that it submit a proposal for dissolution to Parliament, which makes its decision after interviewing the mayor and consulting the Constitutional Court. The President of the Republic must then appoint a provisional commissioner and the by-election must be organised within sixty days. Since December 1994, local councils are also authorised to dissolve themselves. In Poland there is also a procedure based on the American "recall" system whereby the population can dismiss a council by referendum.

Examination of the statistics supplied enables us to measure in part the impact of the legislation in the various countries, and above all the way in which it is applied.

E. STATISTICS

It must be stated at the outset that the statistics are not uniform and are therefore difficult to compare36.

One difficulty may also arise from the fact that for certain countries, statistics are both exact and abundant; the result of this is greater transparency, which it would be unfair to hold against them. Lastly, it is necessary to avoid focusing on the absolute figures and to refer instead to percentages of the number of elected representatives.

The presentation is heavily dependent on the material supplied.

1. Internal procedures of the local authority.

The supplementary Spanish report contains very precise statistics by Community of cases of change of mayor between 1991 and 1995. There were 648 such changes (for 8 094 municipalities), caused by:

- death: 72,
- resignation: 425,
- court decision: 20,
- censure motion: 131.
We can thus see that this last procedure is relatively frequent.

Portugal: 6 dismissals by councils (5 at municipal level, 1 at parish level) between 1988 and 1994.

2. Suspension or removal from office of local elected representatives

Austria: no statistics.

Belgium: between 1989 and 1994 (most recent elections), 3 burgomasters revoked and 4 suspended out of 589, ie approximately 1% in five years.

France: none between 1992 and 1994.

Greece: "none for the time being".

Luxembourg: none since the War.

Norway: none since the war.

Romania: since the first elections in 1992:

- 50 mayors suspended by prefects (out of 2 957),
- 133 removed from office by the Government (4.8%),
- 98 local councillors removed from office (out of 40 178, ie 0.22%).

The report points out that in addition 264 mayors had resigned.

Turkey: 80 mayors since 1987, ie approximately 2.7% of the 2 750 municipalities (of which 41 between 1992 and 1994).

Lastly, it should be noted that 28 local elected representatives were dismissed following court proceedings in Portugal between 1988 and 1994.

3. Dissolution

Germany: no statistics.

Austria: not frequent (no statistics).

France: concerns above all the small municipalities and the main cause is absence of normal operation:
- from 1959 to 1970: 240, of which 198 in municipalities of less than 1 500 inhabitants and 132 in those of less than 500 inhabitants,
- from 1992 to 1995: 45, of which 35 in municipalities of less than 1 500 inhabitants (internal dissension) and only 1 large town: Perpignan
- only 1 département council since 1959 (in 1974)

Greece: none.

Hungary: 1 between 1990 and 1994 but 15 self-dissolutions in 1995.

Italy: 1 September 1990 to 31 December 1994.
In 4 years, out of 8 090 municipal and 95 provincial councils, 948 councils were dissolved, ie approximately 11%, which is a considerable proportion. The causes were:

- 510 owing to resignation of more than half the councillors,
- 280 did not manage to elect a mayor (before the 1992 reform which instituted direct election),
- 8: combination of the two preceding cases,
- 34: failure to approve the budget,
- 8: repeated violations of the law,
- 78: contacts with "organised crime",
- 17: resignations, dismissals, incapacities, ineligibilities.
In all, 86 dissolutions were for reasons of public order (1% of councils).

Luxembourg: since 1988, 5 out of 11.

Malta: none since the institution of local councils in 1993.

Poland: 12 in 4 years (failure to elect executive).

Portugal: since 1976, one council and one parish executive and one "camara municipal" (executive) on the mainland. One "camara municipal" in the Azores (by the regional government).

Romania: 3 councils (reduced to less than half).

Turkey: none.

4. Conclusion

In all, it appears that the procedures for dissolution, where they exist, are only used to resolve manifest malfunctioning or in very exceptional circumstances.

There are only a very few countries where dissolution is used to any great extent. The case of Italy is particularly striking because of the high percentage (11% in 4 years) and above all because of the number of dissolutions for reasons of public order. Despite the violation of public freedoms they imply, the procedures for these latter dissolutions do not appear to offer all the necessary guarantees, particularly as regards the rights of defence. The situation would perhaps warrant a fact-finding mission to obtain a clearer picture.

As for suspensions, and even more so for dismissals, which affect the very status of local elected representatives and the "free exercise of their functions" referred to in Article 7 of the Charter, the cases where use of these powers by the supervisory authority may appear, if not abusive, then at least deserving of enquiry, are Romania and, to a lesser extent, Turkey.

The case of Romania, which has to a large extent justified this section of the report, happily appears to be an isolated case, particularly among the new democracies of central and eastern Europe.

Realisation of the situation will not have been without advantages, since it has given rise to a new form of ex officio supervision, which has been particularly fruitful as the Romanian Government has embarked on the amendment of the legislation on the subject and, it is to be hoped, of the practices of its prefects.

It would probably be advantageous to request some explanations from the Italian and Turkish Governments, or to commission a delegation, particularly for Turkey, where the law does not appear to be always compatible with the Charter, which Turkey has nonetheless ratified.

This survey will have had a further advantage: that of highlighting procedures which are usually overlooked and drawing attention to what might appear as a shortcoming in the Charter.

In fact, and a number of concurring opinions have been supplied on this point, there is no real shortcoming since Article 7-1 deals with the free exercise of functions. The supervision of persons is therefore guaranteed by the combined reading of this paragraph and Article 8. It is therefore not so much a question of amending the Charter as of amending its explanatory memorandum in order to make it more explicit on this point and to fix an "interpretative doctrine" of the Congress for the use of signatory countries or candidates for membership of the Council of Europe.

This would guarantee:

- the legality of procedures. Countries wishing to avail themselves of this type of measure could thus be invited to define more closely the circumstances in which dissolution, suspension or removal from office would apply. The expediency of maintaining the very idea of a procedure for what might be termed "administrative" removal could also be discussed;
- proportionality in the definition of any sanctions and their application;
- application of the inter partes principle (implying prior justification of the proposed measure) at every stage in the pre-contentious proceedings
- guarantees of judicial redress. It is in this context, we feel, that the problem of a possible stay of execution should be dealt with.

PART IV

SUPERVISION OF STAFF

The terms of reference of the working party refer to both the specific case of application of supervision of acts and a much wider problem which would merit a report in its own right, namely the status of local authority staff and the organisation of local authority services. We shall merely examine briefly the problem of status before describing those cases where supervision of persons may present unusual features.

I - DRAWING UP RULES CONCERNING STAFF

As we pointed out in our first report under Article 6 (op.cit., page 39), countries may be divided between those which confer a "statut" on the staff of local authorities (Belgium, Greece, Luxembourg, Portugal) and those which give preference to systems of agreements, more or less covered by legislative provisions (Scandinavian countries). Some countries combine the two procedures (Germany). This appears to be more of a possibility for local government staff than for State employees, because of their type: manual and clerical staff are proportionately more numerous in local authorities while the opposite is true of managerial staff; part-time employment is also more widespread.

The participation of local authorities in the shaping of the regulations varies, but on the whole is slight.

The autonomy of these regulations compared with those applicable to central Government staff appears to be independent of the way in which they are drawn up.

The countries in the first group (the "statut" countries) leave definition of the "statut" to the national parliament, and this may be considered a guarantee. The guarantee is sometimes of constitutional rank (France, Greece, Portugal).

There are several solutions within this group: some countries adopt a single "statut" for all civil servants. This would appear to be the case in Bulgaria, Greece, Hungary, Portugal (common general rules set by law and specific "statuts" set by decree), Slovenia and Turkey. Turkey differs from the other countries in that responsibility lies with the central Government (with the appropriate ministry exerting particular influence) whereas the common rules in other countries are the responsibility of Parliament. This is also the intention stated in the Bulgarian Constitution (Article 116-2), but for the moment it appears that the power to lay down rules, including those governing municipal staff who have the status of State civil servants according to the Local Government Act (Article 47) remains in the hands of the Government.

France tries to strike a balance between the necessary "comparability" of status of State and territorial authority staff and the no less necessary "specificity" of the latter. An act of 13 July 1983 defines common "rights and obligations", but the "statut" of territorial authority civil servants is covered by a separate law (Act of 26 January 1984). This is also the case in Luxembourg (Act of 24 December 1985). The situation appears to be fairly similar in Austria where, although they enjoy guarantees comparable to those of State civil servants, local authority civil servants are governed by separate legislation. Responsibility in this respect lies first with the Länder, subject to some powers left to the Federation.

Dual systems also exist in the other federal or regional States. In Germany, there is a single federal "statut" (outline law) which is intended to be complemented by the Länder, but municipal civil servants are not covered by special legislation. The structure is the same in Spain: the State Act of 2 April 1985 takes precedence in principle, as do the provisions governing State civil servants. The autonomous communities may complement these laws. Within this general framework, municipal civil servants appear to be covered by specific legislation.

Italy appears to represent a "mixed" category, since the "statut" of local and regional civil servants is covered by both a State law, albeit specific (No.142 of 1990) and a national collective agreement signed by the trade unions and an agency to represent the authorities, created by Act no.29 of 1993.

In Poland, there is also a specific act on local government services since 1990 but, for the rest, it is the Employment Code which is applicable.

The case of the Scandinavian countries is interesting as it is not uniform. The methods reflect a whole range of possibilities from the mixed system to the system by agreements, and even as far as a private system. Norway has a legislative framework within which collective agreements may be concluded.

Finland, like Denmark, makes a distinction between staff with "civil servant" status and clerical staff or manual workers. The status of manual and clerical staff is governed by collective bargaining. "Civil servants" have the benefit of specific protection, enjoying stability of employment (they are not permitted to strike in Denmark). This is because they exercise prerogatives of public power. Their "statut" was for a long time set by an act like the one which existed for State civil servants. The Municipalities Act of 1995 has considerably lightened the legislative measures. Thus the rules now largely are the responsibility of the local councils, but these in fact follow the model set up by the Bureau of Municipal Staffs, a semi-autonomous department of the Union of Municipalities in Finland. Teachers nevertheless retain a fairly precise legislative status. The status of manual and clerical workers is governed by collective bargaining.

The status of municipal civil servants in Denmark (100 000 out of 380 000) is fixed in accordance with the same procedure as for clerical staff, although it includes greater guarantees37. All of these questions are delegated by Article 67 of the Local Autonomy Act to the Danish Local Authorities Salaries Bureau, created in 1969. Appointed by the Ministry of the Interior, the members of this Bureau represent the municipalities and the counties and act as coordinators for local and regional employers in negotiations with trade unions. Since 21 May 1990, it has to be consulted before any change is made in regulations or working conditions.

Sweden has moved even more clearly towards the "privatisation" of the regulations applicable to local government staff. An act of 1954 enshrined the principle of national and then local collective bargaining, and very few legislative provisions apply (only those on labour disputes).

In Iceland, the principle appears to be that regulations are set by the local authorities. This seems to be the case in Belgium too (subject to a number of legislative provisions, particularly as regards finance), Cyprus and the Netherlands (where there is nevertheless some legislation, but national associations are consulted first) and Romania (where there is as yet no legislation on the matter).

In all, the situations thus appear to be very varied, but the area of staff is without a doubt one where local authorities have the least freedom. They act here in fact like employers and are required to respect either the guarantees specific to public servants or, at the least, labour legislation. What makes the difference, is the source of the limitation of this freedom. While it may be the central government, the examples given show that in most cases, as the Charter wishes, it is the national parliament, and we know what influence the major associations of elected representatives may have in determining the direction parliament may take. The source may be - and would appear to be increasingly so, because of a trend towards the privatisation of public services which necessarily affects local authorities - trade union organisations, which, in those States where they are strong, are a powerful lever for the unification of regulations.

Lastly, we must be prudent in accepting assertions that it is the local authorities which in principle fix the obligations of their staff. In most cases the countries concerned are those where supervision has remained powerful - for example, in Belgium, with approval by the regions - or, at any event, those where the regulations adopted must be submitted to the central power or its representatives (Cyprus, Netherlands, for example).

Beyond the usual regulations on supervision of acts, account should be taken of a certain number of means by which local authority staff policy may be affected, either directly or indirectly, by outside elements.

II - SUPERVISION OF THE ORGANISATION OF THE SERVICE AND OF THE RECRUITMENT AND MANAGEMENT OF STAFF

A) THE POSSIBILITY OF AUTO-ORGANISATION

This is in principle assured.

It is clear in particular that the local authority possesses, in general, freedom of recruitment, ie the freedom to choose a particular person, subject to compliance with a number of provisions intended, in some States, to ensure equality of access to the civil service, whether local or regional (examinations or competitions).

The freedom to organise services, though this is also often affirmed, may nevertheless encounter difficulties:

There are in some countries de jure or de facto limits through what is variously called the nomenclature or scale of posts. The number and distribution of types of job may be imposed. This may be done officially by legislation (as in Germany or Italy, inter alia pursuant to Articles 3-5 of Act 537 of 1993 and Article 22 of Act no.724 of 1994) or regulations (Bulgaria) or, more discreetly, by collective agreements (the Danish Local Authorities Salaries Bureau may, for example, "suggest" a specific number of promotions) or through circulars whereby the authority uses its power of supervision of acts, particularly if it exercises supervision of expediency (France before decentralisation, Belgium and the Netherlands at present) to impose its will. In Greece, the organisation of the municipal services (but not those of the departmental services) must also be approved by the State representative.

In most cases it is a matter of indirect influences which require a very precise knowledge of the actual functioning of the local and regional authorities in each country.

B) INDIRECT SUPERVISION

1. Through finances

Many of the reports draw attention to the financial constraints placed on local authorities and on the resources available to States (particularly Austria, Belgium, Hungary and Turkey) through, in particular, transfer measures to alleviate these constraints or increase them (for example, in Turkey in 1994, the payment of local civil servants' pensions was transferred to the municipalities).

Expenditure on staff is extremely rigid, because it is repetitive, and constitutes the heaviest burden on local authority budgets.

It is also the type of expenditure most readily questioned when financial adjustment is necessary (for example in order to meet the well-known Maastricht convergence criteria by reducing public deficits). In this respect the Belgian report refers to "diversification of the concept of municipal self-government according to the state of finances of the municipality".

Standards in terms of percentages exist in this respect and may be decisive, for example for assessing borrowing capacity (Spain). These standards are official in Portugal. By virtue of Legislative Decree no.116 of 1984, expenditure on permanent staff may not exceed 60% of current receipts for the previous year. A council which exceeds this limit runs the risk of being dissolved.

It goes without saying that supervision is all the greater where the budget as a whole has to be approved (Cyprus).

A further method is salaries policy, which is often fixed nationally whatever the administration in which the civil servants works. This is an initial limitation on recruitment. It may worsen if the central governments frequently allow themselves a free hand with regard to their own civil servants and deny it to local authorities. The result is disparities to the disadvantage of territorial civil servants, which explains in part the greater difficulties encountered generally in recruiting quality staff at local level. These disparities are pointed out in particular in the Bulgarian and Hungarian reports.

2. The problem of State civil servants in certain local administrations

This is a specific problem raised by the Italian expert, Mr Massimo Balducci, who drew attention to the existence in local or regional administrations in certain countries of civil servants with the status of State civil servants.

Their presence may be inherently offensive. However, it does not necessarily imply a restriction on the local authority. It is a problem only insofar as the fact that a particular civil servant belongs to the State administration - especially where he has certain supervisory duties - may lead to actions detrimental to the local authority.

This feature exists in varying degrees in Spain, Italy, France and the Netherlands. It has spread to a number of countries in central or eastern Europe (Romania).

These civil servants often perform functions which are essential for the local authority: as executive in the Netherlands (at both levels); secretary in Belgium and in Turkey (at provincial and departmental levels); secretary, head of personnel in Italy; council secretary in Spain, Hungary and Romania; financial controller and treasurer in Spain; accounting officer in France (tax collectors and rate collectors) and in Poland. Certain local functions also involve the employment of staff with the status of State civil servants, for example in education (Finland or Poland)38.

The Bulgarian report refers - opportunely, we feel, at a time when the apportionment of properties is incomplete - to the civil servants in the public field dependent on the Ministry of Finances. It was long considered in France (until decentralisation, which did away with the binding nature of their estimates) as a form of indirect tutelage, as it is these civil servants who set the price of goods belonging to public bodies.

The Spanish report points out that the supervision effected by the secretary or the financial controller concerns only legality or accounting propriety. A financial controller's punctiliousness is sometimes perceived as a constraint (France), but it also serves to protect. The official with power to authorise expenditure nevertheless has the possibility of ordering (obliging) the controller to pay, but the official then assumes responsibility.

While the executive in the Netherlands is not subject to central Government control in the exercise of his own functions (on behalf of the local or regional authority), he is nevertheless required to give prior notice of any local decisions which violate the law or are damaging to general interest. The zeal with which he does this may vary.

In Romania, the status of the secretary to a local council, regardless of the quality of the people concerned, is a weakness for local self-government. The secretary is appointed and dismissed by the Prefect and has to give opinions on draft decisions of the council (Articles 47 to 49 of Act 69 of 1991). The same has been true hitherto for the judet council secretary, appointed by the public administration department. However, neither may in theory exercise any supervision of expediency. (The secretary should in future be appointed on a proposal by the council.)

The Swedish report mentions the situation which may result, for example, from the professional relations the municipal architect naturally maintains with his correspondent in the State administration, particularly where he has to notify him of detailed plans for projects in the framework of the 1987 Act on land-use planning and building.

It is nevertheless in Italy that the action of the secretary would appear to create situations which are most open to criticism from the point of view of local self-government.

It may have consequences firstly on the substance of the rules applicable to staff, who are answerable to him and not to the mayor (pursuant to Article 51 of Act 142 of 1992). Very often, he is alone in possessing the necessary technical ability. Mr Balducci points out that in Italy 78% of the municipalities have fewer than 5 000 inhabitants. Moreover, it would appear that the Ministry for the Civil Service tends to give such secretaries, who are (State) civil servants, increasing responsibilities as regards staff management (Act 537 of 1993, Article 3(5)).

In general, these civil servants of the Ministry of the Interior occupy strategic positions since they must carry out ex-ante supervision of any draft decision by the local or provincial council and sign it. Apart from the fact that they may be tempted to defer application of new texts, either from habit or by adding their personal interpretations, they are as though paralysed by the fear of not supervising the acts of the local or provincial authorities as thoroughly as their superiors would wish - we know that these superiors have lost many of the prerogatives they once enjoyed in regard to these authorities.

It would appear then that whereas it was hoped that specific legislation would lay down new conditions for recruitment more in keeping with the spirit of the Act of June 1990, the Ministry of the Interior intends to proceed with massive recruitment according to the old standards to fill vacancies.

FINAL CONSIDERATIONS

The various fields of study opened up by the present report may appear somewhat disparate since they concern in the main not only administrative organisation but also legislation and the actual functioning of relations between the central or regional authorities and the local authorities.

In all, a vast range of legislation concerning local self-government is involved here, and what has been affected is a kind of transverse reading of the Charter in order to check the way in which many of its articles are applied. This process has brought to light the need for new interpretations.

What has emerged is the potential of the Charter rather than the obsolescence of its provisions. Thus, while it could have been feared that the Charter had neglected the protection of persons, we can see fairly clearly from this report that Articles 8 and 7.1 taken together (and where appropriate read in conjunction with the European Convention on Human Rights) meet quite satisfactorily the demands which might be felt and form a sufficiently sound basis for updating the explanatory memorandum.

The second observation concerns the method of monitoring the application of the Charter. Although cumbersome, it makes it possible to gather a large quantity of information - which indeed explains the unusual length of the report. Neglected aspects are thus more readily brought to the surface: organisation of authorities responsible for supervision, provisions and practice concerning the supervision of local elected representatives and staff. This information has made it possible to check certain pathological observations, but also to set them in perspective. They appear rather to be - and happily so - isolated exceptions, which should make it easier to denounce them and carry out some reorganisation (this has in fact already occurred).

The third point to note compared with the previous report is that steps have been taken towards making monitoring more thorough. Statistics, comments concerning actions, and an ex-officio survey by the Congress have given new substance to monitoring. It is therefore possible to draw a number of conclusions for the future.

The present method of monitoring should no doubt be continued. It is essential in this respect to support the group of experts so that a spontaneous current of exchanges develops and deepens. We should probably be thinking of supplementing this "classic" form with ad hoc missions organised at the initiative of the Congress, to gather evidence and information on the spot. These reports and surveys need to result, where appropriate, in comments to particular members showing that ratification of the Charter or even aligning legislation with it is not a once-and-for-all operation but a permanent requirement. This awareness should more particularly concern the older members - and we may venture the hope that they will complete the process of ratification which has sometimes been interrupted, as it is now important that the principles to which the new democracies refer should be applied in exemplary fashion by those countries which were their inspiration.

 

1 Mr VAN CAUWENBERGHE, Chairman, Mr DE SABBATA, Sir Duncan LOCK, Mr ONISEI, Mr SOWINSKI, Mr TCHERNOFF.

2 Pursuant to its Article 13, the Charter can apply not only to local authorities but also to regional authorities designated by the Contracting Party.

3   CG (1) 3 - Part II and Appendix, 4 May 1994.

4 Austria, Belgium, Cyprus, Germany, Hungary, Italy, Liechtenstein, Luxembourg, Netherlands, Norway, Poland, Portugal, Sweden.

5 Mr SCHACHI (Switzerland), Chairman, (as Mr VAN CAUWENBERGHE was no longer a member of the Congress owing to appointment difficulties in Belgium), Mr CEPAS (Lithuania), Mr DE SABBATA (Italy), Mrs DOGANOGLU (Turkey), Mr ENGEL (Germany) - elected Deputy Chairman at the meeting on 7 December, Mr FRECON (France), Mr PANDELIDES ( Cyprus), Mr SWANN ( United Kingdom) - the last two have unfortunately since died - and Mr TOMEY GOMEZ (Spain), members of the Chamber of Local Authorities, plus Mr ONISEI, member of the Chamber of Regions, member of the original working group.

6 Where there is, within the Ministry of the Interior, a "general directorate of local authorities" (DGCL).

7   Since the 1994 reform, the term "Prefect" refers to the elected executive of the department. The State representative is now called a "Department Director".

8   Since 1994, the powers of the 8 "commissioners of the Republic" have been transferred to the 20 county administrative bureaux.

9   The Swedish report notes on this point that the ministries are quite often accused, particularly in Parliament, of practising "ministerial government" (ministerstyrelse).

10   All that is done here is designate the authorities. The means and consequences of their action are covered in Part II.

11   Without prejudice to the coordination duties conferred upon them (judet councils in Romania, for example).

12   All of these points will be covered in Part II.

13   It has happened that the Government "stretches" Article 101 where it is stated that the Government "shall... exercise the general management of public administration".

14 In fact, in Sweden almost all the municipalities and counties make use of a company affiliated to the association of local authorities.

15 NB Belgium has signed but not yet ratified the Charter.

16 The Turkish Government has made no reservation in respect of Article 8.

17 This last expression is sometimes criticised but it is not in fact incorrect since the relationship between the holder of the delegated responsibility and the local authority benefiting from the delegation is indeed a hierarchical relationship. The situation is quite different when the authority (which in this case can only be supervisory) is examining an act(ion) in the field of own responsibilities.

18 In fact, the question is not so much the authority responsible for supervision as the effects of the supervision it carries out.

19 The obligation to balance the budget is relatively recent (1981).

20 France or Spain. It would not be inappropriate here, for the sake of realism and bearing in mind the importance now given to combating public deficits, to state in the commentary on Article 8 that the control of expediency may continue only on an exceptional basis and when strictly necessary in order to reduce local public deficits.

21 But where it is not apparently seen in the same light. It is more supervision of a formal accounting nature. The situation is similar in France although Parliament in 1982 felt the need to establish a right for the local elected executive to apply for a review in order to prevent any misuse of authority by the auditor.

22 In particular, the Act substitutes ex post supervision for ex ante supervision which existed until then for the local budget.

23 It appears that previously much importance was attached to the distinction between the general responsibilities of local authorities and the special responsibilities specifically conferred by legislation, which gave rise to regulation and very precise supervision on the part of the ministries concerned.

24 The decisions of the executives are only transmitted if a certain percentage of the council so requests.

25 Qualifying periods were subsequently introduced for certain acts concerning staff, demolition permits and delegations of public service (in the latter case under the influence of European Union standards).

26 A citizen may also apply to the State representative at the same time as exercising his right to apply to the courts directly. In Austria, there is an actual right of recourse (Article 119a(5) of the Constitution), called "Vorstellung".

27 Against any sanction which may be imposed. The courts are the ordinary courts since administrative courts do not exist in Denmark.

28 This term includes not only local authorities in the strict sense of the term (municipal level), but also second-level local authorities which do not possess state prerogatives and hence may be the object of supervisory or tutelary measures of the same kind as those to which local authorities in the strict sense of the term are subject.

29 Points 2 and 3 of the report of 6 December 1994 (CG/gt.chart(1)2).

30   See commentary on our first report (Appendix to doc. CG(1)3 of 4 May 1994, p.29).

31 This means that the existence of civil servant executives approved by the councils (Netherlands or, to a lesser extent, some of the German Länder) is not strictly speaking contrary to the letter of the Charter.

32 But is has happened that the Crown has done so in the case of loss of confidence.

33 Report on local democracy in Romania by Mr De Sabbata, doc. CG(2)5, Part II, 24 May 1995.

34 For example, refusal to assist a judicial authority.

35 With the result that Mr de Bruycker suggests distinguishing between the "supervisory power" which only acts in respect of bodies and the "tutelary power" which only acts in respect of activities.

36 It should nevertheless be noted that the English translation did not make a clear distinction between "les conseils" and "les élus" (both being translated as "bodies"), which has possibly caused some misunderstanding of the statistics requested. [Translator's note: The French original of the questionnaire (CG/CG.CHART/(1)3) referred simply to organes, properly translated as "bodies". Had the term "conseils" or "élus" been used in the French original, they would have been translated appropriately.]

37 An act in force since 1 September 1995 specifically protects local civil servants wishing to stand as candidates for election or exercising political or trade union functions.

38 Naturally, we should not include the numerous State civil servants seconded to or placed at the disposal of local authorities by personal choice (40% of staff working for the provinces in Belgium have State or regional status).