Rapporteur: Peter RABE (Germany)

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EXPLANATORY MEMORANDUM

Introduction

Democratic structures are developing rapidly in the new Europe united within the Council of Europe. The 44 Member states of the Council of Europe have accepted to follow and implement the standards and values of the organisation which are the protection of Human rights, the rule of law and the promotion of a pluralistic democracy. Democratic structures at local and regional levels are strengthened and further developed by the Council of Europe and especially its Congress of Local and Regional Authorities.

Local democracy is based on the European Charter of Local self-government, a European Convention which was of the utmost importance for the creation of the local democratic structures in the countries of transition in central and eastern Europe. Regional democracy has not yet a comparable reference document. The Congress decided therefore to fill the gap and to propose to governments a European Charter for regional self-government in the form of a binding convention. The existence of such a document will facilitate the building-up of regional democratic structures in member countries and the strengthening of the structures where they exist already.
The Congress of Local and Regional Authorities and especially its Chamber of Regions are undertaking all necessary efforts to succeed in this field.

1. - 1997 – the CLRAE Recommendation 34 (1997)

Following a proposal of the Chamber of Regions, the report on the European Charter of Regional Self-Government was presented by Mr Peter Rabe (Lower Saxony, Germany) at the 4^th Session of the Congress. The Recommendation 34 (1997), which was adopted by the Congress on 5 June 1997, invited the Parliamentary Assembly of the Council of Europe to support the draft European Charter of Regional Self-Government and the Committee of Ministers to examine the draft European Charter of Regional Self-Government, with a view to its adoption as a Council of Europe convention. This convention should become a complement to the European Charter of Local Self-Government and the most appropriate legal instrument for protecting and guaranteeing regional self-government.

The Parliamentary Assembly of the Council of Europe supported the draft Charter by adopting on 7 November 1997 the Recommendation 1349 (1997). The Assembly of European Regions and the Council of European Municipalities and Regions also expressed their favourable opinion on this draft Charter. The Committee of the Regions of the European Union at its 36^th plenary session of 13 December 2000 unanimously adopted the Opinion on the Recommendation of the Congress of Local and Regional Authorities of Europe on a European Charter of Regional Self-Government supporting the draft charter and calling on the Member States to turn it the into a convention.

This issue was also discussed at the Ancona Conference of the Congress on the Charters of Local and Regional Self-Government (16 October 1999). The Final Declaration of the conference stressed that “The system of international legal guarantees in relation to respect for the principle of subsidiarity at all levels of government will be incomplete until the Committee of Ministers of the Council of Europe adopts the draft European Charter of Regional Self-Government, drawn up by the Congress of Local and Regional Authorities of Europe.”

2. - 1998 – the Committee’s of Ministers first reaction

Bearing in mind all these elements, the Ministers’ Deputies, who are responsible to take a decision on all Council of Europe draft conventions, adopted at their 623^rd meeting (17 March 1998), the ad hoc terms of reference N° CM/696/170398 asking the Steering Committee on Local and Regional Democracy (CDLR) to identify elements of a possible legal instrument on regional self-government on which sufficiently wide agreement can be reached and hence which will point to the kind of legal instrument which may prove possible and desirable. This task of the CDLR should be completed by June 1999.

3. - 1999 – the CDLR’ opinion on the preparation of a legal instrument on regional self-government

The CDLR examined this question at its 21^st (2 June 1998), 22^nd (1 December 1998) and 23^rd (31 May 1999) meetings and adopted a legal opinion concerning the preparation of a legal instrument on regional self-government. In this opinion, the CDLR recognised the importance of the process of regionalisation in reinforcing democracy and stability in Europe and noted the diversity of situations, the impossibility of presenting a single model for regionalisation and that regional structures were not appropriate for all states.

During the discussions, the CDLR identified:

- guiding principles for the drawing up of a legal instrument on regional self-government,
- five possible areas for such a legal instrument and
- elements which could be included in this text.

On this basis, the CDLR discussed the possible nature of legal instrument, taking into consideration the necessary flexibility of such an instrument. A substantial number of delegations expressed the opinion that the drawing up of a European Charter of Regional Self-Government – as a convention – would be preferable, as long as such a Charter takes into account the diversity of models of regionalisation in Europe and does not call into question the legitimacy of one or another model. A number of other countries nevertheless stressed the necessity of a recommendation, on the grounds that it would better ensure the respect of the diverse situations in this field.

At the end, the CDLR concluded that it would be legally and technically feasible to draw up a legal instrument on regional self-government and decided to propose to the Ministers’ Deputies that it should be given a double task, that of simultaneously drawing up a draft convention and a flexible draft recommendation. This would allow member states to take a position having full knowledge of the matter and would favour a wide agreement on the text to be finally retained. It proposed that these new terms of reference should finish at the end of 2000.

The CDLR proposed that both the Parliamentary Assembly and the Congress of Local and Regional Authorities of Europe should join in the work of the Drafting Committee which the CDLR has suggested should be set up by the Ministers’ Deputies.

4. - 2000 – allocation of the ad hoc terms of reference to CDLR for the elaboration of a legal instrument on regional self-government.

The Committee of Ministers considered the CDLR’s proposals at its meetings on September 1999, without, however, coming to any clear conclusions as to how best to proceed. In the absence of majority support, it postponed its decision on what instructions to give the CDLR for drafting a convention-type Charter and/or a Recommendation.

The Committee of Ministers re-examined this subject and decided, on 12 January 2000, to charge the Steering Committee on Local and Regional Democracy (CDLR) to undertake until December 2001 the preparatory work for the elaboration of a legal instrument on regional self-government, on the basis of the previous work of the Committee (see ad hoc terms of reference – Appendix I).

5. - 2000 – December 2001 – work of the Drafting Committee for the Legal Instrument on Regional Self-Government

When carrying out the task of elaboration of a legal instrument on regional self-government, the CDLR was assisted by a Drafting Committee composed of representatives of 17 member States the Committee’s work having been open to all member States (see ad hoc terms of reference – Appendix II).

The Drafting Committee held five meetings: 3-4 February 2000, 23-24 October 2000, 23 February 2001, 25-26 June 2001 and 5-6 November 2001. The CLRAE was represented at the above-mentioned meetings by Mr Cuatrecasas, President of the Congress, by Mr Koivisto, President of the Chamber of Regions, by Mr Semmelroggen, Assistant to Mr Rabe, and by Mr De Bruycker, University of Brussels, consultant-expert.

During the first meeting on 3-4 February 2000, the Committee had a first exchange of views on the general orientation to be given to its work and on the different models of regional self-government existing in the member States. It adopted a standard outline for describing the various national models, which the national delegations attending were invited to amplify (see Appendix III).

At its second meeting (23-24 October 2000), the Drafting Committee defined, on the basis of the information obtained, a classification of six models of regional self-government for the principal "types" of regions in Europe (see Appendix IV).

During its meeting of 23 February 2001, the Drafting Committee examined in detail two preliminary draft models (1 and 6) of regional self-government.

At its fourth meeting (25-26 June 2001), the Drafting Committee reached an agreement on the outlines of models 1, 3 and 6. It also approved the syntheses of models 1, 2, 3 and 6.

The Committee examined and adopted the syntheses of models 4 and 5 at its last meeting on 5-6 November 2001. At the same time, it adopted the outlines of models 2, 4 and 5.

The Drafting Committee examined also at its last meeting a document on the common principles of the six models. This was transmitted to CDLR for its meeting of 10-12 December. These basic concepts and common principles may constitute the common core of principles of a legal instrument designed to apply to all States, which wish to establish or to reform a regional democratic governmental level.

6. - December 2001 – adoption of the CDLR’s Final Activity Report and of the Opinion to be submitted to the Committee of Ministers

The Steering Committee on Local and Regional Democracy (CDLR) held its 28^th meeting in Strasbourg on 10-12 December 2001. At this occasion, it discussed the execution of the terms of reference given by the Committee of Ministers in the year 2000 (see Appendix I).

The CDLR considered in particular the presentation to the Committee of Ministers of its Final Activity Report on the completion of the groundwork for a legal instrument on regional self-government, which consists of three main parts:

· Part A: Report of CDLR to the Committee of Ministers on the working methods of the Drafting Committee and the decisions taken following its terms of reference

· Part B: Core concepts and common principles of regional self-government as identified by the CDLR

· Part C: Overviews, syntheses of and outlines for the six models of regional self-government

In part A, the CDLR recalls the terms of reference given by the Committee of Ministers and describes the methodology developed in the course of its work to analyse the different forms of regionalisation which exist in member countries.

Part B contains the description of principles, which are common to all models and constitute the core principles of a legal instrument designed to apply to all States wishing to establish or reform a democratic regional tier of Government.

Part C contains the outlines, syntheses and overviews of 6 models of regional self-government which were prepared on the basis of information collected from member States

The CDLR prepared also a table comparing the national examples of regional self-government submitted, with the models thus identified (see Appendix V).

The CDLR adopted these texts and drafted an Opinion in which it underlined that it refrained from expressing any preference for the nature of the legal instrument (a recommendation or a convention) that could be adopted by the Committee of Ministers on the basis of the completed groundwork.

However, the CDLR proposed to the Committee of Ministers, to submit this question to the 13^th Conference of European Ministers responsible for local and regional government, which will be held in Helsinki on 27-28 June 2002.

7. March 2002 – decision of the Committee of Ministers

The CDLR’ Opinion, as well as the Final Activity Report on the completed groundwork, was submitted to the Committee of Ministers in February 2002.
The Committee of Ministers examined this question at its 786th meeting on 6 March 2002 and at this meeting it:
- took note of the activity report submitted by the CDLR on the instrument of the Council of Europe on regional self-government, requested the CDLR to re-examine the said report at their 29th meeting (27-29 May 2002) in the light of the comments made during the present meeting and agreed that any additional information resulting from the CDLR meeting be forwarded to the 13th Session of the Conference of European Ministers responsible for Local and Regional Government;
- agreed to request the 13th Session of the Conference of European Ministers responsible for Local and Regional Government to express, in the light of the completed groundwork, an opinion on the nature of the instrument to be adopted;
- agreed to resume consideration of the issue of the instrument of the Council of Europe on regional self-government at one of their forthcoming meetings, in the light inter alia of the opinion to be delivered by the said Conference of specialised ministers.
8. - 2002 – Decision of the Chamber of Regions of the CLRAE to submit a progress report to the 9th Plenary Session of the Chamber of Regions.
It is evident that the Chamber follows closely the reactions of the governments on the Draft Charter of regional self-government. Different opinions were developed during the two years work of CDLR. This shows the diversity of regional structures in Europe. It also shows the political problems resulting from the concepts of subsidiarity, decentralisation and regionalisation. Regional democracy is advancing in Europe, at national as at European level.
An important intellectual work has been accomplished by the CDLR and its drafting group. The results have now to be evaluated by the relevant political bodies, in the Council of Europe by the Committee of Ministers and at national level by the responsible ministries of member states.
9. - 27-28 June 2002 – An important event – the next conference of European ministers responsible for local and regional government in Helsinki

The major question to be solved is the legal nature to be given to the final Charter of Regional self-government : either a binding convention or a less binding recommendation to governments. The European Ministers responsible for local and regional government will have to discuss this question in Helsinki and formulate an opinion.

The Congress with the Chamber of Regions is underlining its preference for a European convention.

The recommendations resulting from this report will recall this preference. It will urge the Ministers for local and regional government to follow this line elaborated by the responsible elected representatives of the Regions in Europe working together in the Council of Europe Congress of Local and Regional Authorities.

The report draws up the different stages of the debates at national and European level. The conclusions are presented in form of a resolution asking delegations to intervene at national level. The Congress expresses its hope that the Ministers meeting in Helsinki will be aware of the importance of their decisions.

The Chamber of Regions will continue to follow this process very closely. It is convinced that regional democracy in Europe will further develop, will strengthen democratic stability and the rule of law on our continent and will need for the further democratic development a binding reference document which will have to be the European Charter of regional self-government in the form of a European convention.

Appendix I

Decision No. CM/738/12012000

Ad hoc terms of reference

1. Name of the Committee:

Steering Committee on Local and Regional Democracy (CDLR)

2. Source of terms of reference:

Committee of Ministers

3. Completion date:

31 December 2001

4. Terms of reference:

To complete the groundwork for the elaboration of a legal instrument on regional self-government, on the basis of the principles, areas and elements on which the CDLR has reached preliminary agreement and, in particular:

- to draw up model forms of regional self-government which may be included in a legal instrument as guidelines or as a basis of more precise standards;

- to identify those principles which are common to all such models and which may constitute the core principles of a legal instrument designed to apply to all states wishing to establish or reform a democratic regional tier of government;

- to draft a text, which could be the core of a legal instrument, presenting these principles and models and to report back to the Committee of Ministers.

5. Name of the committee(s) informed of the terms of reference:

Appendix II

Ad hoc terms of reference

1. Name of the Committee:

Drafting Committee for the Legal Instrument on Regional Self-Government

2. Type of Committee:

Committee of experts

3. Source of terms of reference:

Steering Committee on Local and Regional Authorities (CDLR)

4. Terms of reference:

To assist the CDLR in completing the groundwork for the elaboration of a legal instrument on regional self-government and in carrying out the necessary drafting

5. Name of the committee(s) informed of the terms of reference:

-

Appendix III

Outline for the presentation of national experiences and the preparation of models

A. Institutional position of regions within the State

1. The notion of regional authority

2. Competences of regional authorities

i) nature of the competences [own or delegated ones (by whom); legislative or administrative; policy/decision-making or executive ones]
ii) legal source (Constitution, Constitutional act, institutional act, ordinary act, other)
iii) room for manoeuvre in adapting the exercise of delegated competences to the conditions specific to the authority

3. Relations with local authorities (institutional, functional or financial subordination/dependency of local authorities to the region; formal equality, no subordination relationship; subordination/dependency of the region)

4. Participation in the State decision-making process

i) participation in the elaboration of domestic law
ii) participation in the elaboration of European Union law
iii) participation in the elaboration of international or European rules
iv) form(s) of participation
v) participation in the political process – mechanisms of dialogue / co-ordination State - regions

5. Supervision by the State of regional authorities' action

i) supervision of regional legislative activity (basic principles)
ii) supervision of regional acts (basic principles)
iii) supervision of regional bodies (extent of the power of suspension or dismissal of regional elected representatives and dissolution of regional bodies)

6. Changes to regional self-government

i) mechanisms for merging/splitting regions or changing regional boundaries
ii) mechanisms for changing regional institutions
iii) right of regions to bring an action in the competent courts in order to secure the free exercise of their powers.

7. Right of association and other forms of co-operation between regions

8. External relations of the regions

i) representation within European and international organisations
ii) right to establish relations with territorial authorities of other countries

B. Internal structure/regional authority bodies

9. The principle of regional self-organisation (right to adopt or supplement the regional statutes)

10. Regional bodies

i) deliberative body (citizens' assembly, representative assembly directly elected on the basis of universal suffrage or constituted by elected representatives of the local authorities forming the region; possibility for the deliberative body to establish its internal regulations; frequency and duration of sessions)
ii) electoral arrangements; possibility for the regional authorities to establish their electoral system
iii) executive body distinct from the assembly (directly elected by the population; elected by the assembly); responsibility of the executive body toward the deliberative body
iv) conditions of office of elected regional representatives (basic principles)

11. Regional administration

i) room for manoeuvre in determining the internal structures of their administration
ii) conditions of service of regional authorities’ staff (basic principles)

12. Existence of a judiciary system established by the region and regional judiciary bodies

i) regional Constitutional court
ii) regional civil and penal courts
iii) regional administrative courts

C. Regional finance

13. Basic principles of the funding system for the regions

14. Own resources

15. Financial equalisation system for the regions (vertical, horizontal or mixed equalisation)

16. Grants (earmarked or not) to the regions

Appendix IV

Models of regional self-government to be prepared

Model 1 Regions with the power to enact primary legislation¹, the existence of which is guaranteed by the Constitution / by a federal Agreement and cannot be questioned against their will

Model 2 Regions with the power to enact primary legislation¹, the existence of which is not guaranteed by the Constitution / by a federal Agreement

Model 3 Regions with the power to enact legislation, according to the framework (principles, general provisions) established by national legislation, the existence of which is guaranteed by the Constitution

Model 4 Regions with the power to adopt laws or other regional legislative acts, according to the framework (principles, general provisions) established by national legislation, the existence of which is not guaranteed by the Constitution

Model 5 Regions with decision-making power² (without legislative power) and councils directly elected by the population

Model 6 Regions with decision-making power² (without legislative power) and councils elected by the component local authorities

Appendix V

Table comparing the national examples of regional self-government submitted with the models identified

¹ Power of the region to enact primary legislation: the power to enact legislation in designated areas of competence, which is to apply to a region, and which for those areas of competence is of the same legal status as legislation enacted by the national parliament for such (other) areas of competence as are the responsibility of that parliament.

² The scope of this decision-making power may vary. It consists in general in implementing national legislative measures.