Rapporteurs
Mrs Gaye DOGANOGLU, Turkey
Mr Alan LLOYD, United Kingdom

I. The CLRAE’s monitoring of the implementation of the European Charter of Local Self-Government

1. With the agreement of the Committee of Ministers and on the basis of the explanatory report on the European Charter of Local Self-Government, the Congress assumed responsibility for the political monitoring of the Charter’s implementation in the signatory states.
It entrusted this responsibility to a working group for which we are the rapporteurs. The group, comprising 11 members of the Chamber of Local Authorities, is chaired by Mr Gerhard ENGEL (Germany) and assisted by a committee of independent experts, led by Professor Alain DELCAMP.

2. With a view to promoting compliance with the Charter’s provisions in the signatory states, the working group periodically selects one article or a series of articles whose practical implementation, it believes, should be the subject of a detailed report.

The working group itself chooses those articles relating to specific aspects of local self-government which are proving the most difficult to implement, and monitors their implementation.

3. In this context, the working group’s first report on monitoring the implementation of the Charter, of which Mr Jean-Claude VAN CAUWENBERGHE was rapporteur, considered in some depth the preliminary issues of the incorporation of the Charter in the legal systems of ratifying countries and the remedies available to local authorities in cases where the competencies of local self-government are violated by domestic laws. Moreover, a significant part of this first report was devoted to the conformity of legislation in the above-mentioned countries with the various provisions of the Charter.

4. After it had been approved by the working group, this report was presented (Italy) at the first plenary session of the Congress (31 May - 3 June 1994) by Mr Giorgio DE SABBATA. On the basis of the report and in accordance with the working group’s proposals, the Congress adopted Recommendation No.2 (1994) to the Committee of Ministers. Hence, this text, reproduced in Appendix II, represents the first result of the CLRAE’s monitoring of the implementation of the European Charter of Local Self-Government.

5. The Committee of Ministers replied to Recommendation No.2 (1994) and this report is a reaction to that reply. However, before coming to the central issue, we would like to stress that, at the same time as drafting this response, the working group continued to monitor the implementation of the Charter and prepared a second report on the monitoring of local authorities by central and regional authorities. On the basis of this second report, at its 3rd plenary session (Strasbourg, 2-4 July 1996) the Congress adopted Recommendation No.20 (1996), which it submitted to the Committee of Ministers.

6. At present, the working group on mo nitoring the implementation of the Charter is examining the question of local authorities’ financial resources in relation to their competencies. The group will present a preliminary report on this subject, together with a draft resolution, at the CLRAE’s 5th plenary session later this year. The working group will present the final version of this report at the CLRAE’s 6th plenary session in 1999, together with a draft recommendation to the Committee of Ministers.

II. The reply by the Committee of Ministers to the CLRAE’s first recommendation on monitoring the implementation of the Charter.

7. In its Recommendation No.2 (1994), the Congress noted a number of difficulties concerning the implementation of the Charter. To be more precise, the Congress had stated that:

- the Charter had been incorporated into domestic law in some countries, but not in others;

- consequently, recourse to domestic courts in cases of non-conformity of national legislation with the Charter was not always possible; furthermore, where recourse was possible, the courts did not always have the power to set aside the non-conforming legislation;

- the wording of certain articles of the Charter was such that their implementation required supplementary national legislation, whereas other articles could be directly relied upon in the courts of the countries having incorporated the Charter into their domestic law;

8. In view of the foregoing, the Congress recommended that the Committee of Ministers instruct the CDLR to study these issues and to inform it about the existence of procedures which local authorities could use to verify the conformity of domestic legislation with the Charter in countries which had ratified the Charter, whether or not it had been incorporated into domestic law.

9. At its 518th meeting, the Committee of Ministers responded to these recommendations by informing the Congress of its decision to ask the Steering Committee on Local and Regional Authorities (CDLR) to provide it with the information it needed to reply to Recommendation No.2 (1994) on monitoring the implementation of the European Charter of Local Self-Government.

10. At its 16th meeting (Strasbourg, 6-8 December 1995), the CDLR adopted a report providing the Committee of Ministers with the information it needed to reply to the CLRAE’s Recommendation No.2 (1994). This report, reproduced in Appendix III and containing the information sent to the CDLR by 21 national delegations, was transmitted directly to the Congress by the Committee of Ministers. In its Resolution No.34 (1996), the Congress took note of the CDLR's report and decided to submit it to the working group responsible for monitoring the implementation of the Charter, for more thorough examination.

11. Before undertaking a detailed examination of the CDLR's report, at its meeting on 7 and 8 November 1996 the working group immediately noted that the replies sent by the national delegations were extremely varied. The group also noticed that the countries which had only recently ratified the Charter were those which had sent the most detailed replies. Some replies stated that, although it had been ratified, the Charter had not been incorporated into the domestic legal system either because their own rules concerning local self-government were even stricter than those contained in the Charter or because the Charter’s provisions were too general and were therefore difficult to apply in practice.

12. Following these initial considerations, the working group decided to undertake an analysis comparing the CDLR's report, which contained the replies of the various ministries responsible for local authorities, with the summary of information provided by members of the committee of independent experts and contained in the first report on monitoring the implementation of the Charter, drafted by Mr VAN CAUWENBERGHE in 1994.

It asked Mr Jean-Marie WOEHRLING, President of the Strasbourg Administrative Court, in his capacity as French member of the committee of independent experts, to draft this comparative analysis.

13. The report which we are presenting today is the result of this work and constitutes the explanatory memorandum to the draft Recommendation to the Committee of Ministers which the working group has prepared with a view to its adoption by the Congress.

This draft Recommendation proposes that the Committee of Ministers adopt a Recommendation on the implementation of the European Charter of Local Self-Government, to be addressed to all ratifying countries.

Once completed, this process will have accomplished detailed, fruitful dialogue between the Congress, responsible for the political monitoring of the Charter’s implementation, and the Contracting Parties.

14. The only drawback of this process is its length. It should be borne in mind, however, that the Congress resolved this problem in paragraph 15a of Resolution No.34 (1996) on monitoring the implementation of the Charter.

This paragraph proposes that the CLRAE seek the opinion of the CDLR before submitting a recommendation on the subject to the Committee of Ministers.

At its 20th meeting (Strasbourg, 26-28 November 1997), the CDLR welcomed this proposal, which will therefore be put into effect for the adoption of the next Recommendation on monitoring the implementation of the Charter.

A P P E N D I X I

REPORT

THE INCORPORATION OF THE EUROPEAN CHARTER
OF LOCAL SELF-GOVERNMENT IN THE LEGAL SYSTEM
OF RATIFYING COUNTRIES AND LEGAL PROTECTION OF
LOCAL SELF-GOVERNMENT

prepared by Mr Jean-Marie WOEHRLING
French member of the Committee of Independent Experts on the Charter

The European Charter of Local Self-Government puts an obligation on the ratifying states to grant their local authorities the rights and guarantees in this Charter. This obligation assumes that the legislation and regulations in the ratifying states conform to the provisions of this international agreement.

Therefore, the usual case when a state joins the Charter is for the State to first compare its legislation and regulations to the principles and rules in the Charter and make the necessary changes to its domestic law so that it conforms to the international convention. Once this conformity is ensured, ratification can take place which amounts to an obligation to ensure that the domestic law of the state in question continues to conform with the rules in the Charter.

Keeping with this concept alone, the "reception" of the European Charter of Local Self-Government in the ratifying states would be the end of a process and would basically only be of a "doctrinal" nature: the Charter's contents will be a source of inspiration for states deciding to become members, a framework for the development of domestic legislation on local government. But for a state whose legislation conforms to the Charter, its ratification remains "symbolic", without any actual influence on the legal situation of local authorities, which is deemed to be in conformity with the Charter's principles, and which continues to be defined by domestic law.

In reality, the situation is more complex:

- on the one hand, because of the various methods recognised for introducing international law into a domestic legal system, the Charter is likely to have a direct effect on domestic law and consequently on the effective legal guarantee of local self-government in some states,

- on the other hand, the Charter is, to use a formula applied to the European Convention on Human Rights, a "living instrument" whose interpretation is evolutive and whose scope as to the states' obligations regarding the nature and implementation of local self-government is liable to adaptation and deepening in tune with the development of the common concept of local self-government in Europe, with the result that the conformity of domestic legislation with this convention may hardly be seen as certain, and even less so as permanently acquired. The Charter may not have introduced a system of supervision and interpretation of the type that exists for the European Convention on Human Rights, and the limits of the comparison between the Charter and the Convention become apparent in this respect. Yet, on the one hand, in the system of fundamental values established by the Council of Europe, the Charter plays a somewhat similar role in terms of the rights of local authorities to that played by the Convention in terms of human rights, and, on the other, the monitoring mechanism adopted by the CLRAE necessarily involves an evolving approach to the Charter, the interpretation of which must adapt to the progress of local democracy in Europe.

An analysis is therefore appropriate of the conditions under which the European Charter of Local Self-Government is integrated into the legal system of ratifying states, with emphasis on determining whether the local authorities may directly invoke the guarantees in the Charter, in particular in disputes with the states to which they belong.

In this analysis, the question of the Charter's political or scholarly influence on a country's debate on the desirable efforts of modernisation and development of domestic legislation on local authorities may be disregarded. This is undoubtedly important, one of the Charter's main objectives being to influence national legislative and regulatory development, but the question raised here is rather one of the Charter's legal effect in the strict sense and its ability to be invoked in legal proceedings before the competent national courts.

The problem is two-pronged: what is the position of the European Charter of Local Self-Government in the domestic legal system? What are the internal procedures of recourse to a court which allow the violation of the rules in the European Charter of Local Self-Government to be pleaded?

I) The status of the European Charter of Local Self-Government in the domestic legal system of the ratifying states:

The examination of this question is subject to a classical distinction: the one made between states with a monistic approach and those with a dualist approach to the relation between international and domestic law. Without getting into theoretical analysis, it should be recalled that a state's preference for one or the other of these two approaches depends on its own constitutional order:

- In the states favouring the dualist approach, the rules of international law are directed only at the states: these rules place the state under an international obligation in the international legal system, but are not capable of being raised directly by the state's subjects, be they persons under private law or public law. If the state has accepted an international obligation which intends to have consequences in its domestic law at the level of its legal persons, it is up to the state to change its domestic legislation and regulations so as to be in accordance with the obligations it has accepted at the international level. Only measures of domestic law aimed at translating the state's international obligations into the national legal system are capable of creating rights and obligations for subjects of domestic law. Under such an approach, a violation at the domestic law level of an international convention, such as the European Charter of Local Self-Government, may not be pleaded before the national courts if this translation has not taken place. For only the measures taken in the national legal system by the state to ensure the implementation of the Charter may, if appropriate, be pleaded before the national courts.

- In a monistic approach, the rule of international law has direct validity in the national legal system and may be directly invoked as a legal rule in this legal system. This possibility is however subject to two conditions: in the case of an international convention, the rule of international law must have been properly ratified and published by the competent state authorities. In addition, the rule of international law must intend to have a direct effect on the subjects of domestic law. In effect, if by its nature and its object, the rule of international law is directed solely at the subjects of international law, i. e. the states, it cannot have a direct effect in the domestic system, even under a monistic approach. It is said that the rule of international law must be directly applicable or "self-executing" as far as the intention of its framers and its object and contents are concerned.

The states' constitutional law and practice often introduce nuances which somewhat blur this overly sharp distinction between monistic and dualist systems. Thus, in monistic systems, the national traditions as to the scope of judicial review, in particular the review of laws, may limit the actual ability to invoke international law before the courts. By contrast, in dualist states, the complete and literal transcription of an international convention into national law may, with certain exceptions, ensure the equivalent of direct effect, especially if the courts' interpretation favours this.

Nevertheless, this fundamental distinction is retained to determine the conditions under which the European Charter of Local Self-Government has legal effect in the legal systems of ratifying states.

A) Application of the Charter in the legal systems of states with a monistic approach:

The current trend without doubt favours the development of monistic solutions. The most recent constitutions opt for this kind of relationship between international and national law. However, the recognition of the applicability of international law to the domestic system does not always guarantee the supremacy of international law in relation to national law.

1) States effectively ensuring the direct application of the European Charter of Local Self-Government in the domestic legal system and the supremacy of this convention over domestic legislation:

These are either states with a long tradition of the paramountcy of international law, or rather often, relatively new democracies whose constitutions are the most favourable to the implementation of international law.

The monistic approach, as already stated, has two factors favouring the effective application of the Charter:

- the Charter applies directly in the domestic system in the same way as (but not as having the quality of) a domestic legal rule;
- the Charter has, as an international rule, legal effect which suspends conflicting domestic laws which are rendered non-applicable, without it even being necessary for them to be repealed by the state concerned.

Likewise, in order for the Charter to effectively apply to the domestic legal system, the constitutional system of the state concerned must not only recognise this direct application, but also enshrine the paramountcy of international conventions over the domestic legal system.

If these conditions are met, the Charter has "supra-legislative" legal effect which allows it to supersede national laws and rules, be they subsequent or prior to the notification of the Charter.

But this also requires that the concerned states' interpretation of the concept of direct application is not too strict.

There are not many states which meet this set of conditions.

a) Portugal

The Charter was ratified under Article 138b of the Constitution of the Portuguese Republic, after being approved by the Portuguese National Assembly in accordance with Article 164j. The Charter was published in the Official Gazette of 23 October 1990. In accordance with Article 8, paragraph 2 of the Constitution, the rules of the Charter are henceforth integrated in the domestic system and the Charter has the force of law. Consequently, any previous Portuguese legislation which does not conform to the Charter is implicitly repealed.

In the event of a conflict between the Charter and Portuguese legislation adopted subsequent to the Charter's ratification, international law would probably be paramount. Opinions in legal literature seem to be divided on the reach of Article 8 of the Constitution. A majority however concludes that paragraph 2 of this article lays down the paramountcy of international conventions. The authors are however divided: for some, Article 8 only grants international law legislative status, in which case subsequent domestic legislation would prevail; however, the recognition of a supra-legislative effect of international conventions seems to be corroborated by recent case-law. In 1991, the Portuguese Constitutional Court ruled that a treaty could not be overridden by domestic legislation, regardless of whether the latter was enacted before or after ratification of the treaty (Accordão 371/91 of 10 October 1991, Diario da Republica, II Series, No. 284, 10 December 1991).

b) Greece

Despite the dualist tradition in the past, Greece adopted a monistic solution in Article 28, paragraph 1 of the Greek Constitution of 9 June 1975, as amended in 1986. It provides that "the generally accepted rules of international law and international conventions after their ratification by law and their entry into force in accordance with their own provisions form an integral part of Hellenic domestic law and are paramount to any conflicting provision laid down in a law". These provisions guarantee the direct effect of international law and its paramountcy over the laws, even subsequent ones, in the absence of any indication to the contrary. Properly ratified and published treaties or conventions thus have supra-legislative and infra-constitutional status.

Under legislation published in the Official Gazette on 10 May 1989, the European Charter of Local Self-Government became domestic law according to the said Greek constitutional procedure. Articles 2 to 11 as well as the aims in the Charter's preamble have direct application in Hellenic law insofar as they affect all areas of local self-government. Any legislation contrary to the Charter is subject to appeal.

c) Luxembourg

Luxembourg is a country with a monistic tradition. A leading case in 1954 affirmed the paramountcy of international treaties over domestic legislation, even subsequent.

After being approved by the Chamber of Deputies on 18 March 1987, the European Charter of Local Self-Government was published at the end of March in the Luxembourg Official Gazette. Under Article 37, para. 4 of the Constitution, the internal execution of treaties is the same as the execution of legislation. However, in the event of a conflict, the treaty prevails over the legislation.

2 States which despite a monistic approach limit the Charter's scope in domestic law.

A state's monistic approach does not guarantee the Charter's full and effective application in domestic law. Although they allow the application of international law in the internal legal system, various states place some reservations on the Charter's full application. Two kinds of obstacles may be found:

- the Charter's position in the hierarchy of rules
- a restrictive interpretation of the concept of direct application.

a) For some states, the monistic system does not mean the supremacy of treaties over national laws.

- Spain

Under Article 96, paragraph 1 of the Spanish Constitution, international treaties which are properly concluded and officially published form a part of the domestic legal system. Any derogation from their provisions may only be made in the form prescribed by the treaties themselves and in accordance with international law.

The Official Gazette of 24 February 1989 published the Charter, which came into effect on 1 March 1989 after the Cortes Generales authorised its ratification. This document is consequently incorporated into the Spanish domestic legal system. In Spain, the European Charter of Local Self-Government has the status and force of a law. As such, it plays a role in the guarantee of local self-government which applies to the whole territory of the state, in accordance with the 2 April 1985 framework law on local authorities. This framework law must be interpreted in accordance with the Charter; together with the latter, the framework law is a "state legality block" laying down a basic minimum of local self-government guaranteed to all Spanish local authorities.

However, the Spanish Constitution does not have express provisions dealing with the case of a conflict between an international convention incorporated in the Spanish legal system and Spanish legislation. In respect to previous legislation, the Supreme Court and the Constitutional Court have had no difficulty in affirming the supremacy of international law. The courts have not yet ruled on the issue of the supremacy of international law over conflicting subsequent legislation. Article 16, paragraph 1, which prohibits legislation from derogating and amending or suspending a treaty's provisions speaks in favour of the supremacy of international law. But the prevailing opinion in the legal literature calls for a more complex analysis. It appears that international conventions such as the Charter are only granted the same status as a law. Undoubtedly, the Charter is equivalent to legislation belonging to the block of constitutive state legality referred to as the "leading rules" (normativa de copcalera) in matters of local self-government. The Constitutional Court has ruled (judgments 27/1987 of 27 February 1987 and 214/1989 of 21 December 1989) that the law on local government and the constitutional provisions on local government form a “constitutionality block”, with which the legislation of the autonomous communities must comply. The accepted legal opinion seems to be that the Charter could be regarded as forming part of this “constitutionality block”, if not in formal terms then at least in substantive terms. Moreover, the rank of simple legislation should be enough for the international law to prevail over domestic legislation adopted prior to ratification. However, the question arises of the relationship of the Charter with subsequent conflicting legislation. If new legislation contradicts local self-government as defined by the Charter on a particular point, would the legislation prevail over the Charter? This does not appear to be the case.

b) The interpretation of the concept of direct application

In a monistic system, a rule of international law is only directly applicable in the internal system, when according to its objects and contents, the rule was effectively conceived to have such a direct effect.

This condition is the result of the American 19th century case-law which distinguishes between "self-executing" rules and rules requiring steps for transcription into the domestic system.

In order to determine which rules in a treaty are not self-executing, there is an indisputable criterion: the provision is worded so as not to lay down an autonomous rule but only give a "directive" to states to take certain steps (with wording such as "The States signatory shall act with a view to ..."). According to international case-law, (PICJ, Advisory opinion No. 15 of 3 March 1928 relating to the jurisdiction of the Danzig courts) a "self-executing" provision must give rise to rights and obligations on the part of the litigant.

But, besides this condition, reference is made to another more disputed element: the preciseness of the rule: if the rule is vague, it is not self-executing. One must be much more balanced on this point: a general rule may be a true rule and directly applicable if its impact is direct enough so that the courts can apply it.

Some states have a very broad concept of what constitutes a general rule, one too vague to have direct effect.

- Netherlands

After the 1953 constitutional reform, the Dutch constituent assembly adopted provisions which lay down the principle that any conflict between international and national law is to be resolved in favour of international law. Under Article 94, the legal provisions in force in the Kingdom are not applicable if their implementation is not compatible with the provisions of treaties or decisions of organisations under public international law which bind everyone. The supremacy of international treaties over Dutch law, even subsequent, is therefore guaranteed. The supremacy of international law applies without reservations. Dutch courts have no difficulty in applying this principle of the supremacy of international law.

The European Charter of Local Self-Government was expressly approved by a law of 1990. After this approval, the Charter was incorporated into Dutch domestic law. It was declared to apply to all provinces and local authorities of the Netherlands. However, the Dutch Parliament, having found domestic law to be incompatible with the Charter on four points, issued reservations on these while waiting for a solution.

Nevertheless, the Netherlands interprets the concept of direct applicability narrowly. Based on Article 94 of the Constitution which refers to "provisions binding on everyone", it is recognised that international rules create direct rights or obligations for legal persons to the extent that this is indeed the object of the agreements in question. However, the Dutch government considers that taken as a whole, because of their wording, the Charter's provisions are not capable of being directly applicable. But it will be up to the internal administrative courts to ultimately resolve the issue. The legislature must in addition ensure that draft laws are compatible with the Charter.

- Liechtenstein

In the principality of Liechtenstein, the obligatory nature of an international convention is automatically reflected at the national level. Ratified on 11 May 1988, the European Charter of Local Self-Government was published in the Landesgesetzblatt of 1988 No. 21 and entered into force on 1 September 1988.

As a result, these provisions apply to all state bodies while their application to persons depends on the character of the convention's rules as directly applicable. A treaty is deemed to be directly applicable when its contents are sufficiently clear and defined for the determination of an individual's rights and obligations and for serving as a basis for a decision in an individual case. If the rules are not sufficiently precise, they are considered to be merely "programmatic": they apply only to the legislator who is called upon to realise their provisions. According to the commentaries, local authorities in Liechtenstein may not directly derive from the Charter's provisions any rights and obligations because the principles laid down in the Charter are too general. The fact that the Charter is thus defined as a programme-type convention consequently means that the principality of Liechtenstein has merely bound itself under international law to strive at the national level for the realisation of the Charter's aims with the means available to it, without the Charter's provisions creating any direct rights for the local authorities.

Nevertheless, in the event of a dispute, the local authorities may apply to the Supreme Court to determine whether domestic legislation conforms with the Charter. If a rule of domestic law is found to be contrary to the Charter's provisions, the Supreme Court will strike the legislation down.

- Cyprus

Under Article 50 and paragraph 3 of Article 47 of the Constitution of Cyprus, treaties, conventions and international agreements concluded in accordance with the constitution, have, as from their publication in the Official Gazette of the Republic of Cyprus, supremacy over any national legislation, subject to reciprocity. The European Charter of Local Self-Government was signed on 8 October 1986, ratified by the House of Representatives in 1988 and published in the Official Gazette on 18 March 1988. It has therefore become an integral part of national law.

The issue arises as to whether this convention's provisions are directly applicable considering the degree of their preciseness. In the 1987 judgement Malatchou v. Armefti, the Supreme Court of Cyprus decided that the provisions of an international convention are directly applicable if the rights and obligations under it are defined clearly enough for them to be applied by a court of law.

In addition, although ratified and published conventions have a higher authority than laws, a convention is not seen in the strict sense as repealing domestic legislation. The convention renders the latter inapplicable but continues to have the status of an international rule. A ratified convention also differs from domestic legislation in that the convention is not interpreted on the basis of the rules and principles of interpretation of ordinary laws, but rather governed by international law and in particular by the Vienna Convention on the Law of Treaties.

The Law ratifying the European Charter of Local Self-Government was examined by the Supreme Court on 15 April 1991 in the case of Pandelides v. Leandzis et al.. The Supreme Court found that this convention was not directly applicable and that, consequently, the ratifying Law, while being an integral part of national law, did not have higher authority than national legislation. In accordance with this judgement, the fact that the Charter of Local Self-Government was ratified by law was not enough to make it directly applicable. Because the wording was found to be too vague, it was held that the Charter did not have as its direct aim the recognition and guarantee of individual rights and freedoms for legal persons in such a way that they could be raised before the courts. It is therefore up to the constitutional bodies and, in particular, the legislative bodies of the Republic of Cyprus to take steps to implement this convention so as to make it effective in domestic law.

c) Countries for which information is too imprecise to determine if their monistic approach ensures the effective application of the Charter in their domestic systems.

- Bulgaria

Under paragraph 4 of Article 5 of the Bulgarian Constitution, international agreements ratified by the National Assembly form a part of domestic law. They overrule laws which are not in accordance with them.

The European Charter of Local Self-Government was ratified on 17 May 1995 by the National Assembly of the Republic of Bulgaria. In the event of a contradiction between the Charter and Bulgarian domestic law, it would be up to the Constitutional Court under Article 149, paragraph 1, section 4 of the Constitution to strike down any legal provisions which are contrary to the Charter.

- Poland

Until recently, Polish constitutional law did not include any provisions defining the place of international law with respect to the domestic legal system. There was a strong trend in the legal literature to grant the rules of international law absolute supremacy. This position was confirmed in the new Constitution adopted by parliament on 2 April 1997. Articles 88 and 188 of the text would appear to indicate that international treaties take precedence over domestic legislation. Article 188 gives the Constitutional Court the power to check the conformity of legislation with ratified international treaties.

B) The application of the Charter in states with a dualist tradition

In these countries, the European Charter of Local Self-Government has no legal effect in domestic law until it is transformed into a national law. This system does not ensure the same direct effect for the Charter's implementation as does that in countries with a monistic tradition. This is however not necessarily unfavourable for the full application of the Charter, where, after its transformation into domestic law, the question of the self-executing nature of the Charter's provisions no longer arises. Once the Charter has been transposed, its application is governed by the methods used to interpret national domestic rules. However, in several countries with a dualist tradition, incorporation into domestic legislation is deemed to be effective in respect only of the provisions of the relevant international treaty which have a direct effect (eg Germany and Italy). The dualist approach does not therefore obviate the problems connected with this concept of direct applicability.

But, furthermore, a complete transposition of the Charter into domestic law must first be carried out. Transposition may be done two ways (which may also be combined):

- by a general declaratory instrument adopting the international rule with the same wording as in the international treaty in the domestic system (for example, a law on the general acceptance on the Charter with the text of the Charter as an appendix);

- by adoption of detailed rules expressly amending the relevant provisions of domestic law to adapt their contents to the Charter's principles (for example, amending various articles of the law on local government); this method has the advantage of being precise, but it does not enable the Charter to be directly invoked.

In most cases, the first solution has prevailed for the Charter's implementation: the transposing instruments have simply made the Charter generally applicable in the domestic system without resorting to any other measures of implementation: Germany, Finland, Italy, Denmark, Turkey, etc.

Some countries have amended their domestic legislation in light of the Charter. In general, this implementation has however only been partial. In any event, in such cases, the Charter as such has not acquired any legal force. It has merely served as a source of inspiration for the development of domestic law.

Finally, some states have taken no effective steps to implement the Charter in their domestic legal system as they found their legal systems to be already in accordance with this international convention.

After a description of the situation in the countries concerned, the problems raised by the different practices will be discussed.

a) The situation in different countries

- Germany

Whereas Germany adopted monistic principles as to the general principles of international law, it applies a moderate dualism as to convention law. Article 25 of the Basic Law lays down the principle of the direct effect of the rules of international law, but this term does not cover treaties (Federal Constitutional Court, 9 June 1961, Lutike; Federal Constitutional Court, 29 May 1974, Solange). It is therefore necessary to transpose (incorporate) international conventions into German domestic law in the form of a law.

This system is rendered more complex by the fact that Germany is a federal state; the issue arises of the distribution of competences between the federation and the federated states. The constitutional agreement reached in Lindau on 14 November 1957 resolves this issue by maintaining that by virtue of Article 32 of the Basic Law, the assent of all Länder is required for the Bund to ratify an international convention relating to the jurisdiction of the Länder.

In accordance with these principles, the introduction of the European Charter of Local Self-Government in the Federal Republic of Germany, after being signed on 15 October 1985, was subject to approval by the legislative bodies (Bundestag and Bundesrat), in the form of a federal law in accordance with Article 59, paragraph 2 of the Basic Law. In addition, the assent of all the Länder was required. The Government tabled a draft law in the Bundesrat on 15 August 1986 and presented it to the Bundestag on 30 September 1986. This is how the 22 January 1987 Law on the European Charter of Local Self-Government, published in the Federal Gazette on 28 January 1987, was adopted. This procedure was followed by the search for the assent of all Länder which is required for the Charter to bind the Federal Republic of Germany under international law. The search for this assent was not without difficulty as notably the Land of Rhineland-Palatinate expressed reservations.

Generally speaking, the ratification of this Charter was considered not to raise any problems in the Federal Republic of Germany insofar as the Charter largely reproduces the German model of local self-government as it exists in the various western Länder. By contrast, at the time of German reunification, the new eastern Länder had to adopt new legislation on local self-government and in doing so took the Charter's provisions into consideration.

The question of the exact definition of the legal force of the Charter in German domestic law must still be asked. It seems that one can say that it formally has the legal effect of federal legislation. In theory, Länder law must therefore conform to it. However, as already indicated, this federal law concerns a field which belongs essentially to the jurisdiction of the Länder.
Nevertheless, in the event of conflict between the 22 January 1987 Law on the European Charter of Local Self-Government and Land legislation, the principle of the primacy of federal law should apply In addition, as the Charter has only the status of ordinary legislation, a subsequent conflicting federal law could theoretically override it. However, in a matter which is outside the federation’s jurisdiction, it seems that such a law cannot legally be applied. Moreover, the courts would undoubtedly tend to interpret subsequent legislation, in as much as possible, in a way so as to conform to the European Charter of Local Self-Government.

However, it should be noted that the thinking in Germany is that even international conventions which have been incorporated into domestic law are not enforceable if their general nature means that they are deemed not to have a direct effect. In practice, the laws approving international conventions only have a limited transforming effect and courts therefore have broad powers to examine the rules in the conventions themselves to ascertain whether subjects of domestic law can avail themselves of these rules (see Bundesgerichtshof judgment of 24 May 1995 concerning GATT, BGHZ 309). The approving legislation transforms the content of treaties into domestic law, but only insofar as the rules concerned are directly applicable (BVerfG, 21 March 1957, BVerfGE, Vol 6, p 290). And most commentators refuse to regard the content of the Charter as directly applicable.

Subject to this proviso, international treaties in theory occupy a high position in the German legal system: both the federal and Länder parliaments must take account of them in their legislation; once they have been incorporated into federal legislation, they take precedence over Länder laws; and there is a constitutional principle that domestic law must be interpreted in the light of international law (BVerfG, 17 January 1957, BVerfGE, Vol 4, p 235). However, in the event of incompatibility, subsequent federal law prevails (BVerfG, 26 March 1957, BVerfGE, Vol 6, p 309), and treaties rank below the provisions of the constitution.

In conclusion, it is mainly the concept of direct applicability which reduces the practical impact of the Charter in German domestic law.

- Italy

Italy is a moderate dualist country where the implementation of international law is the responsibility of the legislature. The constitution does not recognise the concept of the direct effect of international law. Therefore, a law is needed to introduce an international convention into the Italian domestic system and this law may be, as the case may be, contradicted by a subsequent law. This dualist tradition is moreover well-anchored in the Italian courts.

The Italian system makes a distinction between “authorising legislation” (which permits ratification of a treaty and entails recognition of its international validity) and legislation ordering the implementation of the treaty (which entails its incorporation into domestic law). In practice, the two are often combined in one law. However, the implementing order only concerns provisions which are directly applicable under the convention. In the absence of an implementing order, the domestic legal system remains unchanged (Court of Cassation, 17 April 1972 Foro ital 1973, 589).

According to Article 87 of the Italian Constitution, the President of the Republic ratifies international treaties after receiving the formal authorisation of Parliament. As regards the European Charter of Local Self-Government, a 30 December 1989 law gave the President of the Republic the authorisation to ratify it. This law also stated that it granted this international convention full and complete force from the date of its entry into effect.

The law's Article 3 reads "every citizen shall respect the Charter as a law of the State". On this basis, the Charter is considered to be an ordinary law of the State. As a result of its political obligations arising from signing the European Charter of Local Self-Government, the Italian state has prohibited itself from adopting legislation contrary to the Charter's provisions. But this is not a legal obligation valid in domestic law. Since the laws transposing an international convention are considered to be ordinary domestic laws and not constitutional ones, the Constitutional Court has no jurisdiction to check whether there is a conflict between an ordinary state law and one transposing an international treaty.

According to the constitutional case-law, any domestic law adopted prior to the law ratifying the Charter must be interpreted so as to conform to the Charter. All domestic laws adopted subsequent to the law ratifying the Charter must respect the Charter. Nevertheless, a treaty cannot be invoked if conflicting subsequent legislation exists (Constitutional Court, 24 February 1964, Foro ital. 1964, I 465). However, the courts attempt to reconcile the two texts, working on the assumption that parliament did not intend to violate the treaty (Court of Cassation, 30 September 1955, Foro ital. 1956, I 740).

Italian law did not introduce any reservations or restrictions as to the implementation of the Charter in the Italian domestic legal system. However, several provisions of the Charter are not in harmony with Italian domestic law. One should mention the lack of real financial autonomy and the supervision of actions going beyond a review of their legality.

The current legislative policy is to revise the local self-government system so as to give full application to the principle of subsidiarity. It is a matter of directly giving local authorities the functions which are of exclusive local interest in the fields which are currently the competence of the regions.

- Denmark

Denmark is a country with a dualist tradition where international treaties may have legal force only after their transformation into domestic law, even if the transposition laws have a strictly formal character.

In order to become a part of Danish law and therefore be applied by the country's courts, international conventions must be incorporated into Danish legislation. Consequently, the process of the entry into force of a treaty implies that a decision must be made as to how this treaty will be applied in Danish law if the new provisions are not already in accordance with domestic law. The treaty is then incorporated by adopting a new law and, in the appropriate case, amending existing legislation; or even, if this legislation provides the necessary legal basis, by issuing administrative orders. Later, when new laws are adopted, the legislature must take care that they do not conflict with the obligations arising out of the treaty. This is however a "political" obligation. Nevertheless, to ensure the actual respect of the provisions of international instruments to which Denmark is a party, the general principle is applied under which national legislation adopted as a result of obligations arising out of international law must be interpreted in light of these international obligations.

According to the Danish lawyer Alf Ross, Danish legislation rests on the principle that a treaty does not create national law but only international law. It is only recently that some authors and judgements have put into question this strictly dualist approach. Attempts are being made to edge towards a "practical monism" which uses the rules of interpretation to realise the harmony required between treaties and national regulation.

Before being signed, the European Charter of Local Self-Government was examined by the Danish authorities which concluded that Danish legislation conformed to the Charter. The Charter was ratified on
3 February 1988 and entered into force in Denmark on
1 September 1988 with the publication of the ratifying law in the Official Gazette on 2 September 1988. Denmark has simply declared that this Charter did not apply to Greenland, to the Faeroes or to “metropolitan councils”.

However, as no transformation law has been passed to incorporate the Charter into Danish domestic law, it cannot be invoked in the Danish legal system.

- Austria

By virtue of the Austrian Federal Constitution, treaties belonging to the scope of application of Article 50, notably those with provisions amending or completing existing laws, may only be concluded and ratified with the approval of the Chamber of Deputies. The Chamber of Deputies may decide that a law must be enacted in order to ensure execution of treaties entering into the scope of application of Article 50, paragraph 1. In other cases, application measures may be taken by way of a decree. In such cases, the international treaty does not consequently have immediate legal force. In order for these treaties to have legal force, a law must be enacted or a decree issued to ensure the execution. In addition, the international treaties listed under Article 50 must be published by the Federal Chancellor in the Federal Law Bulletin.

Because the Charter of Local Self-Government enters into a legislative field, it had to be approved by the Chamber of Deputies in accordance with Article 50, paragraph 1 of the Federal Constitution. This approval was granted on 9 June 1987. Publication took place on 8 June 1988. The Chamber of Deputies having decided that a law needed to be enacted in order for the Charter to apply, the Charter has no immediate legal effect until this law is put into effect. Because of the distribution of competences between the federal level and that of the federated states, it is mainly the federated states which are required to apply the Charter. Having found that their existing legislation conforms to this convention, the federated states have not adopted new legislation with respect to the Charter.

In this way, because the Chamber of Deputies has decided that special laws must be enacted to ensure the execution of the Charter and no such laws have been adopted, the Charter has not yet entered into force in Austrian domestic law. It has no immediate effect in domestic law as long as such legislative provisions have not been promulgated. Given this situation, citizens may not rely on the Charter's provisions. This situation is linked to the fact that, according to the Austrian authorities, the Charter is in harmony with the constitutional and legislative provisions in force and as a result it is not necessary to adopt special legal provisions. The implementation of the legislative provisions would fall under the competence of the Länder.

Insofar as the principles in the Charter are identical to those recognised under the Austrian Constitution, the subjects of Austrian law may, in the appropriate case, invoke the violation of the constitution but not the direct violation of the Charter as a basis for legal proceedings.

- Turkey

Article 90 of the Turkish Constitution states that Turkey's ratification of international treaties concluded with foreign States is subject to the adoption by the Turkish Grand National Assembly of a law approving such ratification. The same article states that international agreements properly brought into effect enjoy the force of law. They may not be appealed to the Constitutional Court on the ground that they are unconstitutional.

On 28 November 1988, Turkey ratified the Charter and the Grand National Assembly adopted the said Charter by a law of 8 May 1991. But it appears that it was only on
1 April 1993 that the European Charter of Local Self-Government entered into force in Turkey. The implementing law foreseeing an adaptation tailored to the needs of the country has not yet been adopted. A declaration to this effect has been made several times by the Prime Minister.

Consequently, the conclusion must be drawn that the Charter of Local Self-Government has the rank of ordinary law in Turkey but that national legislation has not truly been brought into conformity with the Convention's contents, this non-conformity not being able to be effectively challenged before a court.

- Finland

Under the Finnish legal system, international law and domestic law are considered to be distinct legal systems. International agreements have legal effect in domestic law only if they have been expressly integrated into the Finnish legal system. Treaties may grant rights to individuals or create obligations only when they have been incorporated into Finnish law. The courts do not apply the international treaties but rather the Finnish law used to implement them.

These basic dualist characteristics of the Finnish legal system are however tempered by some characteristics borrowed from an essentially monistic system. If parliamentary legislation or an implementing act is required to implement international treaties so as to give them effect, the legislative instrument in question need not contain the substantive provisions of the convention. In most cases, international treaties are implemented by way of "incorporation". The treaty takes effect by means of an act of parliament or a legislative order coming from the President of the Republic. It is most often limited to the statement that the provisions of the international convention are applicable in domestic law as they are laid down in the treaty. This instrument of incorporation therefore simply refers back to the treaty whose text is published as an appendix. A less frequent method is the concrete change of existing legislation: to adopt new substantive rules in domestic law intended to harmonise legislation with the international convention. Incorporation requires a parliamentary law when one of the provisions of the convention has a direct and important effect on the legal situation of persons. As for the European Charter of Local Self-Government, its incorporation therefore required a parliamentary law even though the Charter's principles are already enshrined in domestic legislation.

Finland signed the Charter on 14 June 1990. Parliament adopted a law on the adoption of some provisions of the European Charter of Local Self-Government on 12 April 1991. This general law of incorporation has only two brief provisions: Article 1 provides that to the extent that the Charter's provisions enter into the area of legislation, they apply as they have been agreed on. Article 2 makes the entry into effect of the law subject to the issuing of a decree to this effect. A decree was published on 6 September 1991. The law entered into effect on 10 October 1991, the Charter's text having been published separately. According to the Finnish government, Finnish legislation conforms to the Charter.

According to a recent trend in scholarly constitutional legal literature, domestic laws must be interpreted so as to reach the highest degree of conformity with the higher-ranking rules and with international treaties. Given this, even if the Charter's provisions are mostly relatively vague, it is not inconceivable that the Charter be invoked to support an extensive interpretation of existing Finnish legislation. In addition, the Charter is certainly bound to influence subsequent legislative reforms. It is however doubtful that the Charter will have any other direct effect with respect to Finnish national legislation, and notably that it will be invoked against this legislation before the national courts.

- Hungary

The European Charter of Local Self-Government entered into effect in Hungary on 21 March 1994 following ratification by Parliament on 16 March 1993. It was formally incorporated into the domestic legal system very recently, in March 1997, without any reservations. Moreover, the basic principles of the Charter were included in the 1990 Constitution in the provisions dealing with local self-government.

According to the principles recognised in Hungary, properly concluded international treaties bind the Hungarian State under international law. However, for the Hungarian authorities they are not a source of law which is directly applicable. Ratification is necessary for international treaties with fundamental importance.

International treaties dealing with subjects belonging to the legislative competences of Parliament may be ratified by the President of the Republic only with the prior consent of Parliament. International treaties, even if properly ratified, although binding on the Hungarian State under international law, are not sources of law which are directly applicable by the Hungarian authorities responsible for drawing up and applying the law. They may only be applied by the courts and other public authorities if they have been incorporated into domestic law by a Hungarian law. Parliament is responsible for incorporating international treaties which directly lay down rights and obligations of a general nature with respect to legal persons. Once they have been incorporated in this way by Hungarian laws, international treaties are considered to have the status of Hungarian laws and may be applied by the public authorities as such even if this is not the normal practice. Instruments of international law are frequently viewed as giving only direction to the application of domestic law.

The principle that subsequent legislation repeals previous legislation is generally applied. However, the Hungarian Constitutional Court checks whether a law conforms to the international treaties. It may strike down all or part of the law which is incompatible with the international treaty. But it may also find that a law conflicting with an international treaty prevails over the law promulgating the treaty and invite the competent bodies to eliminate the conflict.

It is foreseen that a reform studied in 1993 would introduce the monistic system in Hungary. In the event that this reform is implemented, ratified international treaties may be directly applied by the Hungarian authorities subject only to the condition of publication in the Official Gazette. Moreover, these treaties are to prevail over other laws in the hierarchy of rules, with the exception of the Constitution.

Since its incorporation into Hungarian law in March 1997, the Charter has been binding on the Hungarian State and can be applied by the Hungarian authorities and the courts. The local authorities may invoke the Charter before an ordinary court.

To ensure that the Charter prevails over domestic law, the Constitutional Court has the power to review whether domestic laws conform to the treaties ratified by Hungary and strike down the rules of national law which violate the treaties ratified.

- Sweden

The official position of Sweden on the application of international treaties favours the theory of transposition. According to this theory, international treaties are not applicable in domestic law unless they have been transformed into national law. This transformation may take place in two distinct ways: the treaty may be the subject of editing to bring it into conformity with the usual layout of a Swedish law. Or it may be introduced without change by virtue of a special law. In many cases, Sweden has become party to international treaties without finding it necessary to amend its domestic legislation. In the absence of transposition, the rules in the treaties do not acquire legal force in domestic law. It is however admitted that the courts must attempt to apply domestic law in such a way as to respect the obligations arising from the international treaties to which Sweden is party.

The above-mentioned rules must apply to the European Charter of Local Self-Government, which means that it is not directly applicable in Sweden. Sweden became a party to the European Charter of Local Self-Government on 1 December 1989. However, no concrete legislative act has ever integrated it into Swedish legislation, as it was felt that the content of the Charter did not necessitate any changes in Swedish legislation. One may defend the idea that the government is legally bound to apply the Charter internally as part of its public law obligations. Parliament may criticise the government or the ministers for not fulfilling the obligations arising from the Charter but there is no legal provision requiring local authorities to apply the Charter. The Charter does not bind the courts or the administrative bodies. There is no effective sanction for not respecting the Charter. In fact, the Swedish government considered the old laws on local authorities to be in conformity with the Charter, as well as the new 1991 Law drafted in light of the Charter's contents. But there is apparently no in-depth study of the subject. What remains is that, according to a "constitutional convention", domestic legislation must be, as far as possible, interpreted in such a way as to conform to treaties.

- Norway

In Norway, the rules of international law binding on the Kingdom do not form a part of domestic law as they have not been globally integrated into the system by a Norwegian legal act (parliamentary laws if the citizens are subjected to obligations, or administrative regulations). Many international obligations have actually been incorporated into Norwegian domestic legislation. Introduction may take various forms (transformation, incorporation, etc.). No formal act of introduction is necessary if it appears that the domestic law already conforms to the international obligations of the Kingdom of Norway. The Norwegian government traditionally scrutinises its domestic law before taking on international obligations in order to avoid cases of conflict.

As for the European Charter of Local Self-Government, the examination of domestic legislation led to the conclusion that the legislation did not need to be amended. The Charter was therefore not incorporated into domestic legislation. Norwegian law on local self-government is held to be in perfect conformity with the Charter. Should any difficulties or contradictions arise in practice, it is likely that the courts will endeavour to interpret the domestic legislation so that it conforms as much as possible to the Charter, insofar as it is invoked before them.

The European Charter of Local Self-Government was signed by Norway on 26 May 1989 and came into force in this country on 1 September 1989. In the meantime, the two main laws of 1954 and 1961 on Local Authorities were replaced by a general law of 25 September 1992. As the previous legislation was considered to be in conformity with the Charter, the new legislation which further increased the local authorities' autonomy on various points was viewed as being perfectly in keeping with the Charter.

The 6 April 1989 parliamentary act on the ratification of the Charter did not take the form of legislation but merely that of a plenary decision. Plenary acts of Parliament do not have the same legal effect as formal laws. A law required for the formal introduction of the Charter into Norwegian domestic law, has never been adopted. This does not however mean that the Charter cannot have any effect in the case of legal differences. In effect, there is a fundamental principle according to which domestic law is deemed to conform to the compelling requirements contained in instruments of public international law by which Norway has bound itself. Given this principle, in the event of controversy, an argument based on the Charter may carry some weight. However this is not the same as the actual implementation by a law if such a law had been adopted.

- Romania

Romania signed the Charter on 4 October 1994 but its Parliament has not ratified it. The principles governing the Charter are considered to already exist in Romanian legislation.

- Malta

Malta ratified the European Charter of Local Self-Government on 6 September 1993. The Charter has however not been officially incorporated into the law on local councils.

2. Problems of implementation of the European Charter of Local Self-Government in countries with a dualist tradition

As the above presentation on the implementation of the Charter in countries with a dualist tradition shows, the effective application of the Charter in domestic law may raise several questions:

a) The situation where the transposition is done in a global manner:

When transposition takes the form of a general legislative act approving the Charter, this new national rule must be combined with the other rules of national law on local self-government.

In theory, as a new law, the Charter must be viewed as repealing all conflicting previous laws. Consequently, from the time the Charter is received in domestic law, it ensures its own paramountcy in the domestic system. This obviously assumes that the public authorities, and in the event of disputes, the courts recognise the effect of the Charter in accordance with its status as a national law.

In this respect, a similar difficulty arises under the dualist approach: the general nature of the Charter's rules may lead to the non-recognition of their direct applicability. This reasoning is found for example in the Federal Republic of Germany: the traditional legal literature and case-law consider international law to be "transformable" into national law only to the extent that it is "self-executing". This analysis is disputable because the legislative measure of approval must have the same scope as any other national legislative provision. As soon as it is precise enough to have legal effect, a legislative rule must be applied, be it the result of a domestic initiative or an international one.

Domestic law also has general rules. Their general nature does not necessarily prevent them from having precise legal effect. On this point, there is no reason why the Charter should be interpreted less consistently than the general principles found in other ordinary or constitutional legislation.

The rules of interpretation applying to laws approving a treaty combine the principles of interpretation which belong to domestic law (because they are national laws) and the principles governing the interpretation of international rules (because they transpose treaties). These mechanisms of interpretation should reinforce the effectiveness of the Charter rather than weaken it, as it is a given that the interpretation of a law applying an international convention must aim at ensuring that this convention is effectively respected by the national authorities.

In any event, a law of general approval is not enough to ensure the application of the Charter when this application not only presupposes the disappearance of prior conflicting rules but also the existence of positive rules of implementation (see below II B).

b) The case of the absence of a global transposition:

In several countries, the Charter has indeed been ratified but not integrated as such into the domestic legal system.

-Some countries thought that even before ratification their domestic law completely ensured the realisation of the principles of local self-government found in the Charter. Therefore, they did not think they had to transpose the Charter into their domestic law. This is the situation notably in Austria, Sweden and Norway.

- Other states took the principles of the Charter into account as inspiration for the amendment of their domestic laws on local government: these laws have been reformed in a way favouring the Charter's implementation, but without making any express reference to the Charter. This is the situation notably in Malta and Norway. In such cases, the Charter may be fully respected as the case may be, at least as much as in the case where a law of general approval has been adopted. The situation in such countries nevertheless continues to be unsatisfactory as to the Charter's transposition for the following reasons:

* it is not the Charter which is implemented in the countries considered but rather domestic legislation viewed as being equivalent or superior:

- this procedure does not guarantee that all of the Charter's implications are effectively taken into account. As already seen, the Charter's interpretation and consequently its potential content is evolutive.

The Charter cannot be invoked in these situations in the event of a difference of opinion between the local and central authorities or in the event of proceedings before a court.

It would be desirable for these countries to adopt a formal legislative act approving the Charter. If, as the authorities think, their domestic law conforms to the Charter, such a law of approval would not present any inconveniences (even if some would find it useless). If, by contrast, certain points of national legislation are or become unsatisfactory with respect to the Charter, this legislative approval would allow for the effective application of the Charter in the domestic legal system.

c) The question of domestic legislation subsequent to the approval of the Charter:

In a dualist framework, the law approving a treaty has the rank of an ordinary law. It may therefore be contradicted by another conflicting ordinary law.

The Charter is consequently not protected against new subsequent laws. This flaw may be partially overcome by the rules of legal interpretation. It is generally admitted that the legislature intends to legislate in a manner which is compatible with the international conventions it has approved. The courts consequently interpret the laws on the subject so that they are as much as possible in harmony with the prior legislation implementing the international treaties. Likewise, the act approving the international convention is interpreted as "lex specialis" which subsequent legislation is presumed not to put into question.

These principles of interpretation seem to be well-recognised, especially in Germany, Austria and the Scandinavian countries. In this way, the courts can in practice give the laws approving an international convention a certain paramountcy over domestic law.

However, if the incompatibility between the Charter and subsequent legislation cannot be resolved, subsequent legislation prevails. The Charter does not appear to have already given rise to this kind of difficulty. Attention should be drawn to the 23 April 1993 judgement of the Supreme Court of Norway in which the local authorities were denied the right to appeal to the courts a decision taken in an administrative review by a state authority in a field which could be viewed as concerning local self-government. This judgement seems hardly compatible with Article 11 of the Charter. The Charter was however not argued in the case.

d) The difficulties connected to the federal structure of some states:

Ratification is normally the concern of the federal state as it is usually competent for international treaties. But the application and implementation of the Charter falls to the federated states as they generally have jurisdiction over the local authority field. This may pose difficulties both in monistic and in dualist states. However, the problem is worse in the latter.

Difficulties may arise:

- either to find an agreement as to the Charter's application: as in Belgium where the complexity of the co-ordination between the state and the regions explains why the Charter has not yet been ratified: it should be noted, however, that Belgium has a monistic tradition.

- or to share the responsibility for its implementation: in Austria, the federation found that the measures for the Charter's implementation did not fall under its jurisdiction and the Länder found their legislation to be in accordance with the Charter; no measure was taken in this country to give the Charter legal force in domestic law. In Germany, the Charter has the rank of federal law. In accordance with the above-mentioned 19 November 1957 Lindau agreement, the Länder were called on to give their prior assent to the approval of the Charter. There is however no real co-ordination between this Charter as federal law and the local authority laws of the Länder with the result that the Charter is not in actual fact taken into account.

In conclusion, the general impression is that of imperfect application of the Charter because of two complementary causes:

- the underestimation of the Charter's legal contents: many states start with the assumption that their national legal system guarantees local self-government more comprehensively than the Charter: they find they do not need any "lessons" in the field of local self-government.

These two considerations, the underestimation of the Charter and the overestimation of domestic law are linked: by reading the Charter as a simple "publicity catalogue", one inevitably reaches the conclusion that national law is superior. But if one reads the Charter as a real legal code, one discovers various points on which national law warrants improvement in order to be faithful to the Charter. The same experience was had with the European Convention on Human Rights.

II. The Charter's ability to be invoked before the national courts

Whatever the method used for the European Charter of Local Self-Government to acquire legal force in the domestic legal system and whatever the scope of this force, the question arises on the possibility of raising the principles enshrined in it before the national courts in light of the rules defining the competences and procedures of these courts. In effect, even if the rules in the Charter have acquired a certain force in domestic law, it can sometimes be problematic to invoke them against other rules of domestic law or against decisions affecting the situation of local authorities because of some restrictions on the scope of judicial review.

The set of problems is essentially divided into two groups:

- given that the most important rules concerning the status, organisation and functioning of local authorities are defined in most countries by means of legislative or supra-legislative rules, is it possible to raise the violation of the European Charter of Local Self-Government before the courts against these rules ?

- when the executive power takes decisions affecting the situation of the local authorities, do the local authorities have the opportunity of raising the violation of the Charter's rules against regulatory or individual administrative decisions ?

The answer to these two questions in countries which have ratified the Charter will be successively reviewed.

A) The ability of the European Charter of Local Self-Government to be invoked against legislative or supra-legislative rules

By definition, the issue of the Charter's ability to be invoked against legislative or supra-legislative rules arises only in the countries where this Charter has acquired a rank which is at least equivalent to that of a national law. In the countries where the Charter has not been effectively incorporated in the domestic legal system, even if it has been ratified, it is obviously impossible to raise it before the courts, unless it is to encourage them to interpret national law so as to be as compatible as possible with the Charter's contents.

1) The general set of problems

In the states having ratified the Charter and where it has acquired legal force, its ability to be invoked depends on the competences granted to the courts, or to some of them, to directly or indirectly supervise the legislative rules' conformity with other rules of equal or higher rank.

It is appropriate to distinguish between judicial review of the conformity of legislation adopted previous or subsequent to approval of the Charter.

a) Judicial review of laws adopted prior to the Charter's incorporation into the domestic system:

We have seen that this incorporation, whether done according to a monistic scheme or a dualist one, grants the Charter an authority at least equivalent to a law.

It comes under the ordinary functions of the courts to determine which law is applicable and to find if need be that subsequent legislation has repealed previous legislation. They do not need to be granted specific powers to do so. If a court finds a new law to be incompatible with a previous one, it is not the court which invalidates the latter: it merely makes a finding of the new will of the legislature.

As a consequence, in the states which have ratified the Charter, there should be no difficulty for courts to let the Charter's principles prevail over previous national legislation.

This scheme is in theory accepted for example in Germany or the Netherlands. Reality does not however conform to this theoretical analysis: no concrete application where the courts have struck down a previous law for non-conformity with the Charter is found.

Two problems may be mentioned in reference to this:

- one often finds the Charter to be too vague to create real rights for the benefit of local authorities and consequently to implicitly repeal previous legislative provisions limiting local self-government. Nevertheless, the general nature of a principle's wording does not preclude it from being incompatible with previous rules. If, for example, the national law on court procedure does not grant local authorities a right to appeal to the courts sufficient to guarantee the respect of the principles of local self-government as defined in the national constitution, these national rules contradict Article 11 of the Charter insofar as they exclude a right of appeal of the local authorities; they must be viewed as tacitly but necessarily repealed by the law introducing the Charter into the national legal system.

- the impression is that beyond the more or less precise nature of some provisions of the Charter, there is a sort of "cultural" obstacle which leads national courts to "neglect" i.e. ignore the Charter or treat its provisions as if they were not real law. In theory, national law must be interpreted in a way consistent with the ratified treaties. But does one really do this as to the European Charter of Local Self-Government? Do German, Spanish, Swedish, Dutch judges interpret their national law, starting with their constitution, in light of the Charter and consistent with it? The question is worth asking.

b) Judicial review of the compatibility of the Charter with laws adopted subsequent to its incorporation in the domestic legal system:

In this case, the realisation of review is delicate in several states which have ratified the Charter as it is no longer only a matter of the courts interpreting the law and applying the most recent one, but to give paramountcy to the rule which has an international origin by granting it greater force than other ordinary laws.

Such review assumes that two conditions are met:

- that the Charter be recognised as being higher authority than the laws (see above, Part I);

- that the courts are vested with the power to disregard national law in favour of the international (origin) law.

As to the last point, it is necessary to address a confusion often made between two kinds of review:
- the review of constitutionality: i. e. the conformity of laws with the constitution;

- the review of the respect for the convention; i. e. the review of laws as to their conformity with international conventions which have been ratified and published.

The problem of judicial review of the Charter's application is a review of the respect for the convention: it is a matter of checking whether the national law conforms to the Charter as an international convention or as a national law transposing an international convention, but it is not a problem of constitutionality as the Charter has not acquired constitutional rank in any state.

As a general rule, the question of the court's application of the Charter is consequently not one of the local authorities' ability to apply to a constitutional court on the ground of violation of the Charter. This statement must be modified:

-in certain countries, the Constitutional Court has expressly been given the mission of checking whether laws conform to international rules. In this case, an appeal to such a court may be conceived as aimed at ensuring the respect of the Charter. For example, this seems to be the case in Hungary.

- it is possible to interpret constitutional provisions in light of the Charter. In this case, there may be indirect constitutional protection of the Charter by way of interpretation. If, for example, Spanish, Austrian or German constitutional courts agree to interpret the national constitutional provisions in conformity with the contents of the European Charter of Local Self-Government, they could indirectly but effectively ensure the constitutional rank of the Charter. This situation would however assume that the local authorities have access to the constitutional court to invoke the Charter as a basis for interpretation. This remedy is rarely granted directly (as in the case in Germany, for example, in the form of the Verfassungsbeschwerde). Most often, the local authorities have only indirect access to the constitutional court, for example, in the form of an "interlocutory issue" raised before the ordinary judge, who decides whether or not to refer this issue to the constitutional court (this is the situation in Spain);

- in certain national legal systems, there are procedures which allow a law to have a "quasi-constitutional" rank or at least to assimilate it into the "block of constitutionality". If one were to apply this characterisation to the Charter to give it the rank of an "implementing act", it becomes possible for a constitutional court to review the conformity of ordinary laws with the Charter;

- finally, Article 11 of the Charter must be mentioned, by virtue of which the states which have ratified the Charter recognise the local authorities' right of appeal to guarantee the respect for the principles of local self-government enshrined in the constitution. One might wonder if the consequence of this provision is to give access to constitutional review, where it exists, to local authorities. This question is notably being debated in Spain.

2. The situation in different states

The situation depends on whether the states provide for a review of the conformity of the laws with higher rules.

a) Countries where there is judicial review of the conformity of laws with higher rules

In a majority of the states under study, the principle of the separation of powers has been interpreted as a limitation on the possibility of the ordinary courts to exercise judicial review over the laws. Nevertheless, various mechanisms have recently been developed of judicial review of the validity of laws, either by the creation or strengthening of the competence of the constitutional courts, or by granting the ordinary courts the power to disregard the laws which are contrary to international law, or again by mechanisms to resolve interlocutory issues.

Where mechanisms of this kind have been introduced at the level of the courts, it is conceivable for the courts to hold that the Charter's provisions prevail over the incompatible domestic legislation.

- Germany

By virtue of Article 93, paragraph 4 b, line 1 of the Federal Constitution, the local authorities and their associations have the right to appeal to the Federal Constitutional Court on the ground of violation of their right to self-government guaranteed under Article 28 of the Constitution. However, this right may only be exercised when no appeal lies before the Constitutional Court of the Land. Such appeals are possible in all Länder having local authorities with the exception of Schleswig-Holstein.

This kind of appeal permits the constitutional review of laws; by contrast, it does not allow for the direct review of conformity with the Charter. The Charter has in effect, only legislative rank in German domestic law. It is only insofar as the Charter's provisions coincide with the constitutional principle of local self-government that the German national laws' respect for the Charter can be guaranteed by way of constitutional review.

- Austria

The European Charter of Local Self-Government was approved by the Austrian Chamber of Deputies with a reservation of execution within the meaning of Article 50, paragraph 2 of the Federal Constitution. The Chamber of Deputies had in effect decided that special laws had to be enacted for the Charter's execution. Consequently, the Charter does not have immediate effect in Austrian domestic law as long as the executing laws have not been enacted. No law to this end has been adopted to date, neither at the federal nor federated state level. The Charter has consequently not entered into force in Austrian domestic law. Given this, neither the local authorities nor citizens may invoke the Charter's provisions before the courts. If this integration had taken place, the fact that the local authorities would have had access to the Constitutional Court would have nevertheless been of limited use as the Charter's transposition would have only given it simple legislative status. The Charter could not have been raised against a conflicting subsequent law.

There is however an indirect applicability of the Charter insofar as it has provisions similar to those in the Constitution and as the domestic laws which do not conform to the constitution may be challenged before the Constitutional Court. An administrative court may refer an issue to the Constitutional Court if the administrative court must make a decision on an application in which the unconstitutionality of a law is pleaded. The government of a Land or the federal government, or one-third of the members of the national or federal council, and any person who is personally and directly prejudiced by the law in question may also apply to the Constitutional Court.

-Spain

Even though Spanish institutions grant direct effect to the European Charter of Local Self-Government, judicial review continues to be unsatisfactory with respect to the review of rules with the rank and force of law. The Constitutional Court has competence over the constitutional review of laws. Local authorities do not to date have, as far as standing goes, direct access to this court. They must proceed indirectly: local authorities may challenge sub-legislative acts (regulations - individual decisions) executing a law by raising the unconstitutional nature of the law from which these acts derive their force as a defence or an objection. It is up to the court dealing with the proceedings to decide whether to make an interlocutory reference of the issue to the Constitutional Court. In addition, Article 119 of the 2 April 1985 Law governing the foundations of Local Self-Government gives the National Local Authorities Commission, a collegiate body with equal representation of the state and local administrations, the capacity to refer legislative provisions which it considers damaging to the legal protection of local self-government to the Constitutional Court. However, the remarks made above refer to the constitutional review of laws. The Charter of Local Self-Government has not been integrated into the Spanish "block of constitutionality". The mechanisms described may thus only protect the Charter's provisions which have an equivalent in the Spanish Constitution. In such a case, these Spanish constitutional principles and not the Charter would be upheld.

To date, there appears to be no topical case-law dealing with the review of the conformity of a law or other legislative rule with a ratified international convention. Legal writers however grant that in accordance with the monistic principle governing Spain, the ordinary courts (administrative or civil division) must be viewed as having the competence to strike down subsequent Spanish laws which are contrary to international law on the basis of Articles 96 and 93 of the Constitution. As already seen, Article 96, paragraph 1 prohibits the law from the derogation, amendment or suspension of a treaty's provisions. It may therefore be considered that in the event that a Spanish law is contrary to the Charter, the courts would be compelled to disregard this law and give precedence to the Charter. According to the Aranzadi decision of the Supreme Court (No. 2747, 24 April 1990), Articles 93 and 96, paragraph 1 allow the ordinary courts to invalidate the application of a national law which is contrary to a treaty.

- Italy

The Constitutional Court of Italy reconsidered its 1975 Icic judgement in which it found that the failure to respect the paramountcy of international law amounted to a violation of Article 11 of the Constitution. In its Granital judgement of 8 June 1984, it held a reference made to it by an ordinary court on a conflict between national law and a European regulation to be inadmissible. It established clearly that this did not concern the constitutionality of a subsequent domestic law. This approach was later affirmed. It must however be recalled that the Italian Constitutional Court, following the 14 April 1974 Kraft judgement of the Court of Milan, takes up the idea from the Granital judgement that the courts must apply subsequent domestic law when it expresses the unequivocal will to disregard the treaty. Therefore, because international treaties are, through their ratification, considered to be domestic laws not having constitutional rank, the Constitutional Court does not have the competence to review any possible conflict between an ordinary law and international law. The Charter is considered to be only an ordinary law of the state. According to constitutional case-law, the domestic law previous to the law ratifying the Charter must be interpreted so as to conform to the Charter and be seen as tacitly amended to the extent that it conflicts with the Charter. Although any domestic law adopted subsequently to the Charter must respect it, and be interpreted in this way, in case of a conflict, the domestic law prevails. It is therefore not possible to invoke a subsequent law's non-conformity with the Charter before the Italian courts. By contrast, the latter should confirm the paramountcy of the Charter as a subsequent law in relation to any prior conflicting legislative provisions, provided that the Charter provisions in question were directly applicable.

The Italian Courts may in this respect freely interpret the Charter's provisions as there is no international court responsible for doing so. This is done according to the rules of interpretation under Italian law. According to some writers, any subsequent law which is contrary to the Charter's provisions must be declared inapplicable. To date, there is no case-law dealing with the application of the European Charter on Local Self-Government.

- Bulgaria

Given that the Charter prevails over domestic laws, it is up to, under Article 49, paragraph 1, line 4 of the Constitution, the Constitutional Court to strike down the legal provisions of domestic law which are contrary to the Charter.

- Poland

In Poland, the principle of the paramountcy of international law is unanimously accepted. The Charter's contents are therefore such as to have direct effect on Polish legislation.

Unlike the previous legislation, Article 188 of the new constitution of 1997 gives the Constitutional Court the power directly to review to directly review the conformity of national law with the conventions of international law ratified by Poland. In the past, the Constitutional Court used international conventions as elements of interpretation. On an application by a local authority, the Constitutional Court may from now on ensure that the domestic legislation respects the European Charter of Local Self-Government.

It seems that in an administrative appeal against a measure below the rank of legislation (regulation or individual act) leading to the application of a law which prejudices local self-government as guaranteed under the Constitution or the Charter, the local authorities may raise the unconstitutionality or the non-conformity to the treaty of the law on which the impugned administrative act is based as a defence or objection before the ordinary courts. If it is held to be well-founded, the court may either refer the interlocutory issue to the Constitutional Court or not apply the law contrary to the international rule.

- Portugal

The opinion in Portuguese legal literature is not yet unanimous on the paramountcy of international law over domestic law. However, the position of the second division of the Constitutional Court allowing Portuguese ordinary courts to review the respect of the laws for the paramountcy of treaties seems to have prevailed.

According to case-law which has become a majority position, the Portuguese courts, in accordance to the monistic principles to which Portugal subscribes, do not apply laws which are contrary to international conventions. Consequently, the ordinary courts have the power in Portugal to review the conformity of the laws with the Charter. In accordance with Article 70.1 i of the Law on the Constitutional Court, it is possible to apply to this court on ground of a violation of an international treaty by an administrative decision. The Constitutional Court decides on the issue of the applicability of international law or national law, but does not decide on the question under litigation for which the ordinary court is responsible. It is therefore possible to invoke the Charter's provisions, even against statutory provisions. Nevertheless, local authorities may not directly appeal a statutory provision to the Constitutional Court. They may appeal only when litigation on a concrete case is pending before an ordinary court. The local authorities may however request the intervention of the President of the Republic or the Attorney General who have the competence to lodge a direct appeal (abstract control of constitutionality) with the Constitutional Court.

The problem remains of which provisions of the Charter are mandatory due to their scope as directly applicable and which are simple recommendations.

No decision referring to the Charter has as of yet been taken by the Portuguese courts. International law is not usually invoked before the courts.

- Norway

Norway belongs to the group of countries where the courts have the power to review whether legislation conforms to higher-ranking rules. However, the Charter has not been incorporated into Norwegian domestic legislation because national legislation is considered as being in conformity with the international convention. In the event of a possible contradiction between the Charter and this legislation, a local authority may bring the matter before the courts, and in this case, the fact that Norway has ratified the Charter would be considered by the courts to be a strong argument in favour of interpreting the domestic law so as to be in conformity with the Charter, which would avoid the supposed contradiction. The Charter may thus have an indirect effect on Norwegian domestic legislation by way of an interpretation of the domestic law with a view to bringing it into conformity with Norway's international obligations. Before finding a possible incompatibility between the Charter and domestic legislation, the court must ask itself whether the domestic legal provisions cannot be read in another way so as to be interpreted in conformity with the Charter. Nevertheless, in the case of a direct contradiction, the domestic law will apply since the Charter does not directly have force of law in Norway's domestic legal system.

The Oslo Court, in proceedings by the association of Norwegian local authorities against the state relating to the state's competence to enter into collective agreements with the local authorities' teaching staff, in a 25 May 1995 decision currently under appeal, denied that the principle of local self-government is a constitutional one in Norway.

- Hungary

In May 1997, the Charter was incorporated into domestic law as it has not been promulgated by a parliamentary act. It is from now on a source of Hungarian law and may be invoked against a law. The local authorities may introduce proceedings in a court, in particular the Constitutional Court, to protect their right of local self-government. But this possibility can only be founded on, by virtue of Article 43-2 of the Constitution, the domestic law incorporating the Charter.

- Turkey

Under Article 90 of the Turkish Constitution, international agreements duly put into effect carry the force of law. They may not form the subject of an appeal for unconstitutionality. While it is possible to make an application to the Constitutional Court on the ground that a law does not conform to the constitution, this does not apply to international treaties.

Article 127 of the Turkish Constitution of 1982 contains most of the essential elements of local self-government as they are enshrined in the European Charter of Local Self-Government. Laws contrary to the constitution may be brought before the Constitutional Court by the President of the Republic, parliamentary groups and groups of deputies. An ordinary court may also bring a question of the unconstitutionality of a law or decree before the Constitutional Court. However, it does not seem to be possible to invoke the Charter before the Turkish courts against a law or decree with the force of law.

Nevertheless, the provisions of the Charter, having become an integral part of Turkish law, may be used as a basis for interpretation by the courts of domestic law. For this purpose, the Charter may be invoked before the courts. The State Council and the administrative courts interpret the laws liberally and strike down unlawful decisions.

- Estonia

While Estonia has ratified the European Charter of Local Self-Government, it has not yet incorporated it into its domestic legislation. Once ratified, an international convention has the force of law. It follows that any local authority may challenge the conformity of a domestic provision with the Charter by application to the Minister of Justice. If he finds it appropriate, he may propose an amendment to the legislation. If the amendment is not adopted within twenty days, he may refer the matter to the Supreme Court which has the power to declare the legislation in question invalid. It therefore appears that there is no direct way for local authorities to bring a matter before the Supreme Court so that it may uphold the Charter's provisions against those of a law.

b) States not reviewing the conformity of laws with superior rules

- Netherlands

Although the Netherlands has long been very favourable to international law and notably to its direct effect in the Dutch legal system, the Dutch local authorities' ability to invoke the Charter before a court against a law is limited. Before the reform which introduced a new general administrative law code on 1 January 1994, the authorities could only, as a last resort, introduce an appeal to the Crown, which could not be considered as an impartial judicial body. The reform created an appeal to the administrative court against individual decisions. This appeal is also open to local authorities against decisions which prejudice their interests and allows them to invoke the violation of an international convention by a law. If the court finds such a violation, it will not apply the national law. But the question of direct applicability of the Charter's provisions remains. It will be up to the courts to determine whether certain provisions of the Charter have direct effects. To date, there is no case-law on this point. The Dutch authorities' official position is that none of the Charter's provisions have direct effect. Moreover, they have registered a reservation as to the application of Article 11.

- Greece

In keeping with the Greek monistic position, the Charter's provisions override Greek domestic legislation. The administrative and ordinary courts are under a constitutional obligation not to apply a law which does not respect the hierarchy of legal rules under the constitution, notably a law which is contrary to a properly ratified treaty. The State Council may also quash any administrative measure applying a law judged not to be in conformity with the Charter.

- Finland

The Charter has been integrated into Finnish law. It enjoys the status of domestic legislation and may as such be invoked before the courts. It is higher in rank to other rule-making instruments which have an inferior status such as government decrees and orders. But the courts do not have the power to reject a law even if they find that it conflicts with the Charter. Likewise, the courts do not have the power to declare a legal provision null and void on the ground that it is contrary to the Charter. Only an interpretation of laws in accordance with the Charter would allow, where appropriate, the resolution of a case of conflict. According to well-established scholarly opinion, the civil and administrative courts may not put a law into question on the ground of unconstitutionality or for non-conformity to a treaty. Until today, there is no decision which refers to the Charter.

- Luxembourg

In Luxembourg, the principle of local self-government is laid down in Chapter 9 of the constitution. There is no Constitutional Court in Luxembourg. The case-law in Luxembourg does not grant courts the right to find a law constitutional or unconstitutional. As a result, there is currently no practical sanction for the unconstitutionality of a law. Nevertheless, the Charter's provisions may be invoked before the Conseil d'Etat as a defence or objection of non-conformity with the Charter of a law on which the impugned administrative action is based.

- Malta

There appear to be no provisions made for legal proceedings against a law which does not conform to the Charter.

- Cyprus

By application of monistic principles, a convention integrated into the Cypriot domestic system overrides any other Cypriot law. It is therefore possible to invoke the European Charter of Local Self-Government against a prior or subsequent law which is contrary to it. But in the Pandelides v. Leandzis case, the Supreme Court of Cyprus held that the Charter's provisions as a whole did not directly apply and that it did not have the direct object of recognising and guaranteeing individual rights and freedoms by granting all persons a right to seek a remedy before the courts in the case of a violation.

Therefore, in practice, the European Charter of Local Self-Government may not be usefully invoked before the Cypriot courts because it is thought to be too vague to give rise to rights and obligations which can be directly raised against a domestic law.

- Sweden

No court in Sweden has the responsibility of checking on application by a local authority whether internal legislation conforms to the constitution or the Charter.

Nevertheless, there is another body: the Legislative Council, governed by Article 18 of Chapter 8 of the constitution. Made up of judges of the Supreme Court and the Supreme Administrative Court, this body has the competence to give its opinion on draft laws. This opinion however has no influence on the validity of any law which is subsequently adopted.

Article 14 of Chapter 11 of the Swedish Constitution states that if a court or any other tribunal finds a provision to be contrary to the constitution or higher legislation, these provisions may not be applied. Nevertheless, if it is a legislative provision or one issued by the government, it can only be set aside if it has a patent defect.

The Charter's provisions are viewed as being neither provisions of a fundamental law nor as provisions of superior rank within the meaning of Article 14 of Chapter 11 of the constitution, even though the Swedish Parliament ratified the Charter by a law. It does not therefore seem that this law had the effect of incorporating the European Charter of Local Self-Government into Swedish internal law. It is however noted that the courts must apply domestic law in a manner that respects the obligations imposed by the international conventions to which Sweden is a party. As a result, the Charter may be used by the courts as a source of interpretation for domestic laws.

In addition, the Permanent Constitutional Committee of the parliament may criticise the government or a minister for not fulfilling the obligations arising from the Charter. In addition, some writers find that the Charter is an essentially political text and its provisions are difficult to interpret by the courts. The Charter has binding force only for the government and parliament, but without judicial sanctions. By contrast, it is not binding in Swedish law on administrative bodies and courts, no more than on the local authorities because it has not been incorporated into Swedish legislation. This consequently means that the Charter may not be invoked in the courts.

At present, no court has the competence to declare a law null and void.

- Denmark

Denmark has only ordinary civil courts. The local authorities have access to them. One may plead before these courts that Danish domestic legislation must be interpreted in conformity with the provisions of the Charter. However, when there is a contradiction between the Charter and Danish domestic rules of law, the Charter may not be usefully invoked. The courts are very reluctant to enter into a review of constitutionality. No act has ever been considered to be unconstitutional.

The Charter may therefore only play a role as a source of interpretation for clarifying domestic law.

The result is that the Danish local authorities may not generally apply to Danish courts as to whether domestic legislation is compatible with the European Charter of Local Self-Government.

B. The judicial remedies against administrative decisions which violate the principles of local self-government

At issue here is not the review of legislative action for conformity with the Charter, but that of the actions of the executive power or an administrative body. As a consequence, this question is much less sensitive than the previous one. It is essentially about technical aspects: is there a remedy available to local authorities for effectively challenging the general or individual acts of the administration?

This problem is not, of course, particular to the application of the European Charter of Local Self-Government. In most of the ratifying states, local authorities have remedies against the actions which cause prejudice to them, either before specialised administrative courts, before the ordinary courts, or even before administrative divisions of the ordinary courts.

After an examination of the situation in different states, the main problems on the Charter's full implementation will be discussed.

1.The situation in individual states

The information received on the judicial remedies against administrative acts contrary to the Charter is rather fragmented.

- Austria

While local authorities have access to the Constitutional Court, the judgments of this court dealing with local self-government may only be based on the provisions of the federal constitution and not on the European Charter of Local Self-Government. The practice of the Constitutional Court with respect to local self-government may be described as quite restrictive as far as the determination of the local authorities' area of competence is concerned. In a 1974 judgment, the Constitutional Court held that local self-government as guaranteed by the constitution is only violated when a governmental body takes measures which completely deprive the local authorities of a subject belonging to their area of competence.

A local authority may also apply to the administrative court in a case where the state administration does not take any action for an excessively long period of time on an application by a local authority. A local authority may submit administrative acts which it finds contrary to local self-government to the Administrative Court for review. This notably concerns the decisions of the supervisory authority which has the power to annul the local authority's acts which do not conform to the law, but these supervisory acts may be challenged by the local authorities before the Administrative Court.

- Denmark

The acts of municipalities are subject to administrative review by a collegiate commission made up of members of the county and a high civil servant of the state. As for the counties and the two cities of Copenhagen and Frederiksberg (which have a double status of city and county), this supervision is exercised directly by the Ministry of the Interior. The legislation provides that in some areas, the decisions taken by local authorities may be subject to appeal to different administrative tribunals. The Danish local authorities may appeal the decisions of these administrative tribunals to the ordinary courts.

State action against the decisions of a local or regional authority must always be based on a statute or refer to a decision of a competent judicial authority. In other words, there is in principle no discretionary supervision of municipalities and counties. The condition leading to measures of annulment or sanctions against the local authority is that the illegality must be flagrant. There must be no doubt that the legislation has been violated. This type of censure rarely takes place. Aside from supervision by the state or independent commissions, complaints may also be received by the Ombudsman.

- Sweden

In Sweden, the local authorities have no objective remedy against an administrative regulation on the grounds of unconstitutionality or non-conformity with the Charter.

The remedies of local authorities against the decisions of central authorities are in practice quite limited. Thus, no court may take a decision on the legality of the very important decisions taken by the government as to state subsidies or equalisation of local taxes as decided by the state. The remedies available to individuals are more extensive. Individuals may appeal most administrative decisions to the court. The Swedish association of local authorities has asked for the scope of the appeals procedure which grants individuals the right to appeal administrative decisions taken by the government to the Supreme Administrative Court to be extended so that the local authorities may also lodge such appeals. The existing remedies do not seem to be in conformity with Article 11 of the Charter.

The system of supervision of the local authorities' decisions is essentially a review of legality. However, in some cases the law permits an administrative appeal which allows the decisions to be examined on the basis of both their legality and their expediency. The position of administrative courts, especially in the social welfare field for which the local authorities are responsible, is often viewed as excessive by the persons responsible for this in the local authorities who see this case-law as an encroachment on local self-government. Such persons believe that the law gives the courts too many powers while the courts are not aware of the local authorities' financial problems.

- Hungary

The Hungarian Constitution recognises and protects local self-government. Under Article 43, paragraph 2 of this constitution, the rights and obligations of local authorities are prescribed by law. Their exercise in conformity with the principles of local self-government includes a right of judicial appeal to the local authorities which may appeal to the Constitutional Court to protect their rights.

The head of the public administration department who supervises the local authorities may only examine the legality of measures taken by them in the exercise of their discretionary powers. He does not have the power to quash a decision of a local authority. He may ask the party concerned to eliminate the violation of the law within a set deadline. If the party fails to do so, the head of the public administration department may apply to the Constitutional Court to have the local authority's illegal decision set aside or start an action for judicial review of the illegal decision. He may also refer the matter to the representative body of the local authority. Such an action against the local authority or one of its organs does not suspend the application of the contested act. But an application for suspension may be presented to the court.

In accordance with Article 125 of the constitution, a judicial remedy must be available against all acts of the administration. In other words, every action and operation of the central or local administration may form the subject of an action before the courts. By virtue of the same article, the administration is also required to compensate for any damages caused by illegal or flawed actions or operations.

A remedy is available before the Constitutional Court with respect to decrees with the force of law. The orders and regulatory acts issued by ministers may be brought by the local authorities before the administrative courts for illegality.

Individual acts recognising the legal interests of local authorities may be challenged in court by the latter. Actions by local authorities before the ordinary courts or the constitutional court may be based on domestic law as well as on the Charter.

- Cyprus

According to the legal literature, the new law of 1985 on local authorities does not adequately protect the local authorities' right to seek a judicial remedy to ensure the free exercise of their responsibilities and respect for the principles of local self-government in accordance with the provisions of the constitution or national legislation.

However, the Supreme Constitutional Court has the power to decide on appeals against the decisions, acts or omissions of any body or persons exercising administrative or executive authority contrary to the constitution or the law or for ultra vires. The appeal may be lodged by any person whose legally protected interests are directly affected by this decision. The question is whether this appeal is also available to local authorities for the protection of the principles of local autonomy as expressed in the Charter.

- Estonia

The remedies available to local authorities against action taken by an administrative authority in violation of the principles of local autonomy are not known.

- Romania

Court procedure permits local authorities to protect their rights by appealing to the Administrative Court.

- Luxembourg

The Grand Duke may invalidate collective or individual actions of the local authorities which are contrary to the law or to the general interest. The decision of invalidation must give reasons. Article 104 of the Law on local authorities allows the Minister of the Interior to suspend the same acts of the same authorities for the same reasons. The law in Luxembourg also provides for special supervisory measures in certain areas. In these cases, the State authority may substitute itself for the local authorities and act in their place. Finally for some decisions, the approval of the Minister of the Interior or the Grand Duke is required. Against the various supervisory measures, the legislature has provided for the possibility of an appeal to strike down the measure as being ultra vires before the Conseil d'Etat. This remedy is also available against decisions of invalidation and a refusal to grant approval. The provisions of the Charter may be invoked before the Conseil d'Etat.
After having decided on the possible ground of nullity of an administrative act, the Conseil d'Etat may only quash the decision attacked. In the event the decision is quashed for lack of jurisdiction, the matter is then referred to the competent authority, and in other cases, back to the authority whose decision was quashed. The court may not substitute itself for the executive. It is limited to censuring unlawful acts.

Article 95 of the constitution in addition permits ordinary courts to review the legality of general and local orders and regulations and disregard them if they do not conform to the laws, without authorising them to repeal them or set them aside. The ordinary courts may also decide on administrative acts which put into question the individual rights guaranteed to the citizens by law.

- Netherlands

In 1994, a new general law on administrative procedure was adopted. This law introduces a right of appeal for anyone who can show a specific interest against individual acts of the administration. But these provisions do not create a general right of appeal for local authorities against acts of state authorities infringing on their right to local self-government: there are as of yet no remedies against regulations of the administration. However, when the decisions of local authorities are put into question by a higher supervisory authority, the latter's decision may be challenged by the local authority before an administrative court.

In general, it is up to the court to examine the compatibility between the Charter and the domestic law in accordance with current court procedure. But, as we have already seen, the Netherlands finds that the Charter's provisions as a whole are not directly enforceable. Nevertheless, it is in the end up to the judge to decide this question.

- Portugal

Administrative judicial review covers only the regulations or other provisions issued by the state administration (the procedural law for administrative and fiscal tribunals and the administrative and fiscal tribunals' statutes).

Administrative review of the acts of local authorities covers only the respect for the legality with regard to constitutional principles. In the event of serious illegality, the law provides for two kinds of sanctions: the dissolution of the body responsible for the collective illegal act or the dismissal of the locally elected representative who committed the illegal act.

The local authorities may seek remedies before the civil and administrative courts as well as the constitutional courts. It is possible for them to invoke the provisions of the Charter before these courts.

- Norway

The Norwegian system has only ordinary courts, but these have the power to review the lawfulness of administrative acts. The Norwegian local authorities do not, however, have a general right of administrative appeal against governmental decisions which have a direct impact on their financial or legal situation under the same conditions as individuals have such a right. Even though a possibility of challenging the state before the courts may exist, the local authorities' ability to obtain judicial monitoring of the state's supervisory decisions concerning their actions must be treated as a special case. The question arising is to what extent local authorities may challenge before the courts the steps taken by state bodies in the exercise of their official powers of administrative supervision of a local authority's decision. For example, can a local authority apply for judicial review of decisions taken by a governor following an administrative appeal against one of its acts? There is no precedent for such cases in the Norwegian legal system. It would be reasonable to think that under the principles of civil procedure, the local authorities cannot file such actions against the state. The same applies if the issue under dispute may have a considerable impact on the scope of local self-government within the meaning of the Charter. In its 23 April 1993 judgment, the Supreme Court of Norway refused to admit that a local authority had a legal interest to appeal to the court against a decision taken by the state amending the terms of an administrative act of the local authority during administrative review proceedings on a point which it had regarded as particularly important in the administrative procedure. This situation does not appear to conform to the Charter. By virtue of the Charter, local authorities should have access to the courts even in this kind of administrative matter. The recognition of such a remedy would involve the legislature so as it may review the state's supervisory structure over the actions of the local authorities.

With this exception, the local authorities have access to the courts and may be brought before the courts under the same conditions as other legal persons.

In addition, Norwegian law does not allow litigation on hypothetical questions or on the correct interpretation of a provision. An action is only admissible before the courts if the claim is a concrete one.

In the present Norwegian system, regulatory provisions may not be declared null and void. These provisions may only be disregarded if they are unlawful or cannot be interpreted in such a way so as to conform to the law or the Charter. However, in the event of incompatibility, the regulatory provisions override the Charter.

- Poland

On application by the local authorities, the Polish Constitutional Court can check if an administrative provision conforms to the wording of the European Charter of Local Self-Government.

In its public law relations, the local authority may appeal to the administrative court against a decision taken by the state supervisory bodies. Being a legal person, the local authority has broad possibilities of protecting its rights and interests by using the means provided for under civil law.

The supervision by state organs is in principle carried out on the basis of the criterion of legality. It is only in the "delegated functions" that this review may also take into account considerations of expediency and policy.

- Bulgaria

Any interested municipal council may bring an application before the Constitutional Court when a state institution violates local competences. Any interested person may apply to the Supreme Court of Bulgaria for the annulling of a normative act issued by the Council of Ministers which is not in accordance with the provisions of the European Charter of Local Self-Government.

- Italy

The Italian local authorities may bring the acts of administrative review by the state authorities before an administrative court. A regional law may be subject to an appeal to the Constitutional Court. It is possible to invoke the provisions of the Charter before the courts because it has been ratified without reservations.

In the event of a dispute with the central government, the regions may make a direct appeal to the Constitutional Court. To date, the case-law of this court is, however, rather centralist. A direct appeal by the provinces and local authorities to the Constitutional Court is not admissible.

A 1990 law on the reform of local government reduced the scope of state review over the acts of the local authorities and provinces. Likewise, the regional review commission may review only the legality of the acts, not their expediency.

- Spain

While local self-government is not considered to be a "fundamental right" within the meaning of "rights and freedoms" which give rise to an appeal provided for under Article 53.2 of the Spanish Constitution, local authorities are nevertheless able to lodge an appeal in the case of a violation of the rights and freedoms which they enjoy.

Concerning administrative decisions (regulatory and individual), local authorities enjoy judicial remedies which may be viewed as satisfying the requirements of Article 11 of the European Charter of Local Self-Government. The local authorities have an unrestricted capacity to challenge before the courts any administrative decision which adversely affects them, whether it is taken by the state or the autonomous communities.

During the administrative appeal, local authorities may raise before the courts the defence or objection of the unconstitutionality of the law on which the impugned administrative acts are based. If this is judged to be well-founded, the courts may decide to refer an interlocutory question to the Constitutional Court.

In addition, the 2 February 1981 judgment should be mentioned in which the Constitutional Court found the operative provisions of the previous rules on administrative supervision to be contrary to the constitutional principle of local self-government. Neither the administrations of the state nor those of the autonomous communities could in future directly intervene in local activities. They must appeal to the administrative tribunals which are a posteriori the only ones competent to review legality. A review of expediency does not conform to the principle of autonomy. The principles of this constitutional case-law were implemented in the 2 April 1985 Law on local authorities.

- Finland

The local authorities are legal persons and as such have the same access to the civil and administrative courts as citizens and all other legal persons. The local authorities may make an appeal to the administrative courts if an administrative decision concerning them affects their rights or obligations. In this respect, no distinction is made according to the nature of the administrative decisions under dispute. The decisions of the cabinet or ministries may be subject to appeal even if they were largely discretionary. The administrative courts have the power to affirm, modify or quash an administrative decision. The decisions of the state administrative authorities may be appealed on the ground of legality or expediency. In practice, however, appeals based on arguments of expediency are very rare. In cases where, because of the subject of the appeal, the decision essentially depends on the examination of expediency, the higher administrative court must refer the matter to the State Council. In practice, the powers of the court are therefore limited to the examination of the legality of administrative decisions. The administrative appeal cannot, however, be used to challenge the constitutionality of administrative decisions, as seen above. The legality of regulatory orders may only be challenged in an appeal against an individual decision taken by virtue of this order. Consequently, a local authority may not lodge a direct appeal against regulations. The courts do not have the competence to declare an administrative provision null and void on the ground of being contrary to local self-government. Nevertheless, the prohibition for authorities to exercise their discretionary power in a way which is incompatible with provisions relating to fundamental rights has gradually acquired the status of a well-established principle in legal writing and judicial practice. This principle of interpretation could be applied to ensure the respect of local self-government. However, there is as of yet no case-law affirming this analysis.

Since the Charter is integrated into Finnish law, it may be invoked before the courts against governmental decrees and orders issued by the ministries. However, the provisions of the Charter might be considered too imprecise to have direct legal effect.

- Greece

In Greek domestic law, various constitutional and statutory provisions have introduced remedies of administrative or judicial review for the local authorities and their elected representatives. A right of appeal to a court is introduced by Article 20, para. 1 of the constitution. This is translated by the possibility of an appeal on the ground of ultra vires against the administration's illegal acts, and by the civil and criminal responsibility of the elected representatives.

The Greek Constitution, in its Article 102, specifies that the state exercises supervision over the territorial authorities without hindering their initiative and their freedom of action. Under the new law of 1995, the competent review authorities at the local level are the regional general secretary, the person responsible for reviewing the legality of the acts of departmental authorities, and the regional director responsible for reviewing the acts of municipal and local authorities. In every department, there is a tripartite committee which reviews the legality of the acts of the local authorities and whose members are a county court judge, a representative of the central administration and a representative of the local authorities. This commission has the status of an independent administrative authority. The decisions of this commission may be brought before the competent minister. In any case, an appeal on the ground of ultra vires lies against the acts of local authorities and those of ministers. The local authorities' acts are operative from the time they are decreed. All supervision of expediency has been abolished. If the regional general secretary or the regional director finds an act transmitted to him to be illegal, he may not annul the act himself but must refer it to the competent tri-partite committee. The commission reviews the legality of the acts referred to it and delivers its decision promptly. It is only when the regional general secretary is appealed to by a person adversely affected by the decisions of local councillors or presidents of corporations governed by local public law, that he himself reviews the legality. Any person adversely affected may bring an appeal before the competent tripartite commission against the acts of local authorities. This new system of review introduced by a 1994 law seems to conform with Article 8 of the Charter.

- Germany

In every Land, the local authorities may have the validity of administrative regulations examined by means of judicial proceedings for the review of rules. Aside from this action, the legal protection against review measures taken by the supervisory authorities is governed by the general rules.

2.Main problems

Reference is made here only to the main questions which may lead to a restriction of the local authorities' access to the courts for the violation of the principles of local self-government.

a.Requirements as to the capacity to act

Some countries require that local authorities wishing to challenge an administrative act have a subjective right or a concrete situation which has been damaged by this act.

When such a condition for the admissibility of an appeal is introduced by the procedural laws, the Charter may be taken into account only if the courts recognise that it lays down rights for the benefit of local authorities or that it protects their subjective situation. If the Charter is interpreted as laying down only abstract rules, its violation risks not being taken into account in some administrative review systems (Germany, Austria, Spain, etc).

b.Recourse to the theory of the "shield law"

In some countries, if an administrative act is contrary to a treaty but is undertaken by application of domestic law, the courts give preference to domestic law by holding that the respect of domestic law by the administrative act creates a "shield" barring the ability to invoke the illegality of this act in relation to the treaty.

3. The question of appeal against general administrative acts

An objective appeal against regulations is not open in all countries. Therefore, the means of the "defence or objection of illegality" (which is a shield, not a sword) must be used which may be less favourable.

4. The question of the administration's refusal to undertake certain positive measures

One sometimes speaks of a negative conflict: to a certain extent, the Charter allows contrary administrative acts to be set aside or disregarded. But is it in a position to compel the undertaking of certain administrative acts or to grant certain advantages which the Charter entails? The example of the allocation of financial resources in conformity with Article 9 of the Charter comes to mind. In many states, the courts do not have such a power of injunction.

5. The question of the remedies available to local authorities against the review acts of higher authorities

The higher authorities of the state often have the power to review the acts of local authorities. Articles 8 and 11 do not exclude such a control but imply that it be limited, with exceptions, to the review of the legality of the acts of the local authorities. Moreover, the local authorities must have a right of appeal against these review decisions.

Nevertheless, in some states, this review goes beyond the review of legality and may thus violate local self-government. Under the Charter, such a review of expediency should be limited to cases where the decisions in question do not stem from the local authorities' own powers but from a power which, by nature, belongs to the higher authorities and has only been "delegated" to the local authorities.

Moreover, in some states, when the higher authority's review takes place in the framework of an administrative appeal available to individuals (see Norway, for example), the right to appeal the decision taken by the administrative appeals authority may not be challenged before the courts by the local authorities. This restriction of appeal does not seem to conform to Article 11 of the Charter.

Conclusion

This will be limited to some recommendations:

- Interpretation of the Charter

Once it is integrated into the domestic legal system, by either a monistic or a dualist approach, the Charter must be viewed as a rule of domestic law, ie all its provisions are a priori of a binding and effective legal nature. It can only be otherwise when the very wording of a provision of the Charter expressly or clearly states that it limits itself to being a "directive" addressed to states and does not intend to create a legally enforceable right for the local authorities.

Even in the case where a provision of the Charter amounts to only a "directive" to the states (and not a right), one might ask whether it is not justifiable to follow the reasoning of the Court of Justice of the European Communities: after a normal or reasonable lapse of time for implementing and adapting domestic law to the Charter, it is appropriate to treat as far as possible as an actual right what was originally only a directive; the national legislature must be presumed either to have expressly adapted the domestic legal system by that date, or to have implicitly viewed the Charter as being directly applicable and to have tacitly repealed any contrary provisions, without any additional action on the part of the national legislative authority.

However, this is probably still a minority analysis and the parallel made with Community case law on the direct effect of “directives” should not be taken too far, given the specific characteristics and dynamics of Community law. Nevertheless, there is no reason not to draw inspiration from that particularly dynamic area of European co-operation in order to push forward the interpretation of international law in less integrated contexts. Moreover, although time in itself is not enough to make directly applicable a provision that is imprecise or subject to provisos, the passage of time can be conducive to an evolving interpretation of the scope an international rule: comparisons of practices in the various states, continued work in the area of legal opinion and the monitoring of the application of the Charter by the CLRAE can combine to make the content of the Charter more and more specific (and hence more and more directly applicable).

This dynamic interpretation is therefore to be encouraged with the courts, notably in the countries with a monistic tradition.

- Instrument incorporating the Charter:

In countries with a dualist tradition, a legislative instrument is required for the incorporation of the Charter into the domestic legal system. We have seen that many countries have not adopted such an instrument on the ground that their law is in any case more advanced than the Charter. These countries should be urged to review this position and adopt a text giving the Charter the force of national law. A close examination reveals that the courts' mere interpretation of national law in light of the Charter is not enough to ensure effective observance of the Charter.

In addition, it may be seen there are in every country, even those which are the most advanced in local self-government, one or more points on which national legislation is problematic in relation to the Charter when the latter is not interpreted in a dynamic way.

It could be claimed that the direct incorporation of the Charter into the domestic legislation of certain states goes against their legal tradition, given the general nature of the Charter’s provisions. This seems to be the case in the United Kingdom, where there is heated debate even about the incorporation of the European Convention on Human Rights by act of parliament. Account must be taken of these difficulties relating to differing concepts of the role of the law and legislation. However, one of the purposes of European co-operation is also to bring about changes in these traditions. The very act of accepting a Charter of Local Self-Government in the form of a European treaty means agreeing to general rules being laid down at international level and to their having legal force. It is therefore essential for them to be able to be implemented effectively by all the organs of public authority in the countries that have ratified the text.

A P P E N D I X II
A P P E N D I X III

Report by the Steering Committee on Local and Regional Authorities (CDLR)
in order to reply to Recommendation 2 (1994)
of the Congress of Local and Regional Authorities of Europe (CLRAE)
on monitoring the implementation of the European Charter of Local Self-government

1. The Congress of Local and Regional Authorities of Europe (CLRAE), with the agreement of the Committee of Ministers, has introduced a system of monitoring the European Charter of Local Self-Government in the States which have ratified it. This system consists in the selection each year of certain articles of the Charter and, by various means, obtaining information on their application with a view to making proposals to governments.

2. The first question examined was the place of the Charter in the internal law of the countries having ratified it and the possibility for interested authorities to refer cases of non-conformity of national legislation with the Charter to a domestic court.

3. In Recommendation 2 (1994), the CLRAE noted in particular that:

- in certain countries the Charter has not been incorporated into domestic law;

- recourse to domestic courts in cases of non-conformity of national legislation with the Charter is not always possible; furthermore, where recourse is possible, the courts do not always have the powers to set aside the non-conforming legislation;

- the wording of certain articles of the Charter is such that their implementation requires supplementary national legislation.

4. Therefore, the CLRAE recommended the Committee of Ministers to instruct the Steering Committee on Local and Regional Authorities (CDLR) to study these questions and, where appropriate, to explain what are:

a. the judicial remedies to verify whether or not an internal piece of legislation would be in conformity with the Charter in States which ratified the Charter and where it has been incorporated into domestic law;

b. the procedures of which local authorities could avail themselves to verify the conformity of an internal piece of legislation with the Charter in countries which ratified the Charter and where it has not been incorporated into domestic law.

5. At their 518th meeting (October 1994, item 9.3), the Ministers' Deputies asked the CDLR to provide them with the necessary information to give a reply to this Recommendation. The present report contains the information transmitted to the CDLR by 21 national delegations.

AUSTRIA

The European Charter of Local Self-Government was approved by the Austrian National Council - the Parliament. On this occasion, the provisions of the Charter considered to be binding for Austria were established. The relevant provisions were then published in the Official Gazette No. 357/1988, as a consequence of which they have the status of federal acts. The contents of the articles and paragraphs declared to be binding have already been taken into account in the Austrian constitutional law. Hence, the Charter neither modifies nor amends the Austrian constitution. Irrespective of the fact that the Charter's provisions are essentially met by the applicable Austrian act governing local laws, it does, however, supplement acts.

In the light of their competence for legislation regarding local laws, the enacting of implementation acts falls within the jurisdiction of the federal regions. Since all of the existing acts on local laws implement the principles laid down in the Charter, no separate legal measures had to be taken.

Austria does not have a separate institution responsible for verifying the compliance of regulations with those provisions of the Charter declared to be binding.

All Austrian laws, however, must comply with the Federal Constitution. Since the binding provisions of the Charter comply with this requirement, any act in contradiction with them would be of doubtful validity from a constitutional point of view. Such an act would be subject to the revisory function of the Constitutional Court and would be abrogated, if found to be in violation of the Constitution.

The following institutions are entitled to apply ex officio for the constitutional revision of any act, provided that it is to be applied in a case pending before them: the Administrative Court, the Supreme Court, any court of second instance, an independent administrative senate and the Constitutional Court. In addition, in the case of violation of the Federal Constitution by region acts or government, the Federal Government may apply. In the case of violation of the Federal Constitution by federal acts, one third of the members of the National Council or of the Federal Council (Land Chamber) may apply. Finally, any person holding a personal and direct interest damaged by an act claimed to be unconstitutional may apply for its revision.

Like every legal entity, the community can lodge a complaint before the Constitutional Court about the violation of constitutional guaranteed rights (Articles 137, 138 and 144 of the Constitution). In order to protect local self-government, the community has the right to make a petition for examination of the conformity of decrees (Verordgungen, Article 144 of the Constitution) or decrees of the monitoring authority (of the Union or region, Articles 119a
(9) and 139 of the Constitution).

The community is also entitled to apply before the Administrative Court for a revision of administrative acts (Bescheide, Articles 131 and 132 of the Constitution) and to protect local self-government from administrative acts of the monitoring authority (Articles 119a (9), 131 and 132 of the Constitution).

BULGARIA

The European Charter of Local Self-Government has been ratified by the National Assembly of the Republic of Bulgaria by a law, adopted on March 17, 1995.

In compliance with Article 5, paragraph 4 of the Bulgarian Constitution, international agreements, which have been ratified by the National Assembly and entered into effect for our country, constitute a part of the domestic law of the Republic of Bulgaria. They have priority over acts which are not in accordance with them.

In case any contradiction between the Charter and domestic law of Bulgaria is found, according to Art. 149, paragraph 1, point 4 of the Constitution, it is for the Constitutional Court to repeal the provisions of the law that contradict the Charter. The Constitutional Court can be referred to by 1/5 of the members of the Parliament, the President, the Council of Ministers, the Supreme Court, and the Chief Public Prosecutor.

If as a result of a given law, a conflict of competence arises, between a State organ and a local self-government authority, the Constitutional Court can be referred to by any municipal council interested in the question.

Any normative act, issued by the Council of Ministers which is not in accordance with the provisions of the Charter can be subject of a claim before the Supreme Court of the Republic of Bulgaria by any interested person in order to be declared void.

CYPRUS

1. According to Article 169 of the Constitution of the Republic of Cyprus:

"Subject to provisions of Article 50 and paragraph 3 of Article 57

(1) every international agreement with a foreign State or any international Organisation relating to commercial matters, economic co-operation (including payments and credit) and modus vivendi shall be concluded under a decision of the Council of Ministers;

(2) any other treaty, convention or international agreement shall be negotiated and signed under a decision of the Council of Ministers and shall only be operative and binding on the Republic when approved by a law made by the House of Representatives whereupon it shall be concluded;

(3) treaties, conventions and agreements concluded in accordance with the foregoing provisions of this Article shall have, as from their publication in the Official Gazette of the Republic, superior force to any municipal law on condition that such treaties, conventions and agreements are applied by the other party thereto."

2. The European Charter of Local Self-Government has been signed on behalf of the Republic of Cyprus on 8 October 1986 and was ratified by the House of Representatives as Law N° 27 of 1988, in accordance with the provisions of the above Article of the Constitution. Therefore, the Charter is of superior force than any other domestic legislation.

3. Should a citizen have reason to believe that he is harmed by an internal piece of legislation which is not in conformity with the Charter, he then can have recourse to Court under Article 146 of the Constitution which states:

"1. The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person.

2. Such a recourse may be made by a person whose any existing legitimate interest, which he has either as a person or by virtue of being a member of a Community, is adversely and directly affected by such decision or act or omission".

4. However, the Supreme Constitutional Court, in the single case on this matter brought to it, ruled that the provisions of the Charter are not self-executing.

DENMARK

The provisions of international law are not directly applicable in Denmark. In order to become part of Danish law and thereby capable of application by the Danish Courts, such provisions normally need to be incorporated into Danish legislation. Therefore, the process of entry into a treaty includes determination of the way in which it will be satisfied in Danish law, if there is not already agreement (harmony) between Danish regulations and the treaty provisions. Implementation is then effected by the enactment of new legislation or amendments to existing legislation, or alternatively, if existing legislation provides the requisite basis, by administrative orders. When enacting subsequent legislation, the legislature must refrain from legislating in a way that would bring the legislation into conflict with existing treaty obligations.

In order to ensure that the provisions of international law to which Denmark has acceded are observed in actual legal practise, a general principle applies that national provisions that have been created as a result of obligations in international law or are otherwise concerned with such obligations, are interpreted in the light of those obligations.

However, there is no general recourse either for citizens or for local authorities to have the question of whether a law is consistent with an obligation in international law tested in the Danish Courts. In judging matters brought before them, the Courts use applicable Danish law, interpreting it as is required in the light of, inter alia, underlying obligations in international law.

It follows from the foregoing that there is no general recourse for Danish municipal authorities (kommuner) to have the particular question of whether existing or new legislation is consistent with the European Charter of Local Self-Government tested in the Danish Courts. Nor indeed does the Charter make any requirement that such recourse should be available, cf. its Article 11, which provides that local authorities shall have the right of recourse to judicial remedy in order to secure free exercise of their powers and respect for such principles of local self-government as are enshrined in the Constitution of domestic legislation.

ESTONIA

Estonia has ratified the European Charter of Local Self-Government and it has not been incorporated into domestic law.

According to Article 123 of the Estonian Constitution, the Republic of Estonia cannot ratify international agreements which are not in conformity with the Constitution and ratified international agreements which are not in conformity with (other) legal acts of Estonia will take precedence over these acts.

In view of the above Article, the ratified charter can be considered as a valid piece of legislation. It follows that any individual or body such as a local authority can contest the conformity of an internal piece of legislation with the Charter by bringing the matter before the Chancellor of Justice. The Chancellor may propose a change of legislation if appropriate. In the absence of such amendment within 20 days, the Chancellor will make a proposal to the Supreme Court to declare the law invalid (Articles 139 and 142 of the Constitution).

The described procedure has not yet been used in connection with ratified charters.

FINLAND
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1. Access to courts of justice

Municipalities are legal persons and as such they have similar access to both civil and administrative courts as citizens and other legal persons. In civil cases, a municipality qualifies as a party to a law suit under the same rules as apply to other legal persons. Thus any municipality has the capacity to bring proceedings to civil courts and is also capable of being sued on equal footing in all areas of civil litigation.

Under administrative law, the administrative appeal is the regular judicial remedy available to those whom an administrative decision directly concerns. According to the Administrative Appeals Act (1950), an administrative decision can be appealed as long as nothing to the contrary is stated in a law or an ordinance. Under a well-established case law, locus standi is generally accorded to anyone whose right or legally protected interest are directly infringed or affected by an administrative decision. Accordingly, the municipalities have recourse to administrative courts whenever an administrative decision is directed to them, insofar as it affects their rights or obligations.

Basically, appeal may be directed against any act of an administrative authority whereby a matter has been decided or dismissed without examination. In this respect, no distinction is made between administrative decisions and acts of state. Decisions by the Cabinet or the ministries may thus be subject to appeal even if they were based on a very wide margin of discretion. The advisability of those decisions cannot be investigated by the Supreme Administrative court, however.

According to an established doctrine, both civil and administrative courts are considered to lack the power to investigate the constitutionality of legislation enacted by the Parliament. On the other hand, Art. 92.2 Constitution Act specifically provides that all judges and administrative authorities are under a duty not to apply a statutory order that conflicts with the Constitution or an act of Parliament. The obligation of the courts to disapply statutory orders and other inferior normative acts conflicting with the law does not, however, amount to a power to declare such norms invalid. Furthermore, the reviewability of normative acts within the area of delegated legislation is quite restricted.

It is mainly due to these doctrines that administrative courts have also tended to be fairly reserved in addressing specific constitutional issues in their deliberations and decision-making when the legality of an administrative decision is challenged. These observations apply also to the specific provision in the Constitution Act guaranteeing the right to municipal autonomy (Art. 51.2). As a result, the doctrine limits the municipalities' recourse to a judicial remedy, particularly in the sense that administrative appeal is not at all available to challenge the constitutionality of legislative acts (acts of Parliament) having a bearing on municipal autonomy. And the legality of statutory orders can only be challenged in connection with an appeal against a decision that has been made pursuant to such an inferior norm.

Since it is to a large extent through legislative enactments that the actual scope and contents of self-government are determined, the present doctrine may appear somewhat problematic and even open to criticism. Arguably it restricts the municipalities' recourse to a judicial remedy in a manner and to such a degree that may be considered incompatible with the requirements of Article 11 of the Charter. Yet, one should not overlook the obvious fact that the wording of this Article leaves ample room for interpretation in this respect. On one hand it could certainly be said that "the right of recourse to a judicial remedy" in order "to secure" local self-government requires that national courts shall be empowered to review even the constitionality of legislation affecting local self-government. On the other hand, it could as well be argued that given the openness of Article 11, the scope of judicial review with regard to constitutional issues is something that should be or, in fact, is best left for the constitutional systems of each signatory state.

2. Invokability of the Charter's provisions

The Charter has been incorporated into Finnish law by a legislative act of the Parliament. The general incorporation act provides that the provisions of the Charter falling within the scope of legislation are in force as has been agreed. In other words, the Charter has the status of domestic law. As such it is invocable before the courts and takes precedence over normative acts with inferior status in the legal system, such as government decrees and ordinances issued by ministries.

Another matter is that in actual judicial practice the provisions of the Charter may be considered to be too imprecise or vague both to have direct and independent legal effect and to act as the sole basis of a judgment rendered in an individual case. It is more likely that the provisions of the Charter would be applied as legal principles informing and influencing the interpretation and application of domestic statutes.

3. Powers of the court

The administrative courts have the power either to affirm or overrule an administrative decision. Decision subject to an administrative appeal may also be amended. Generally, decisions of state administrative authorities may be appealed on grounds of legality and expediency, but in actual practice appeals based on arguments of expediency are quite rare. Should the decision subject to appeal depend primarily on a consideration of its advisability or expediency, the Supreme Administrative Court must refer the case to the Council of State. Since decisions of the Council of State and the ministries may be appealed only on legal grounds the powers of the courts are, correspondingly, limited to the investigation of only the legality of those decisions.

Being incorporated into Finnish law, the Charter forms an integral part of the domestic legal order. As such, the courts have the power to interpret its provisions to the extent and in the manner they would construe purely domestic statutes when deciding an individual case.

As has been pointed out earlier, the courts lack the power to reject a law even if they find it to be in conflict of the Charter. Similarly, the courts are not empowered to declare a legal provision null and void on the basis that it is contrary to the Charter. It should be noted, however, that the hierarchy of legal norms has recently gained new significance even for administrative activity with an emerging doctrine that is more prone to place emphasis on the substantive, rather than the abstract character of normative hierarchy. This doctrine stresses the importance of giving the applicable statutes in each case an interpretation which best conforms with the superior norms. Such an interpretation tends to avoid potential normative conflicts and aims at facilitating the implementation of the objectives of especially basic and human rights.

The prohibition on authorities exercising their authority and discretion in a manner conflicting with basic rights provisions has already acquired the status of a well-established principle in legal doctrine and judicial practice. The prohibition has gradually been extended to imply a positive obligation as well, and is now commonly described as an authority's general duty, when interpreting and applying a statute, to give to it, where possible, an interpretation which favours the requirements of basic and human rights. This positive interpretative principle requires that in a situation calling for interpretation, the choice made from a range of justifiable alternative should be one conducive to the implementations of human rights.

In all probability, the same principle of interpretation could be applied in cases involving a potential conflict between the requirements of the Charter and domestic legislation. There is no case law confirming this presumption, however.

4. Jurisprudence

So far there have been no rulings or other decisions with a reference to the Charter.

GERMANY

The Federal Republic of Germany incorporated the Charter into domestic law by the "Federal Act on the European Charter of Local Self-Government" which was adopted on 22 January 1987 (Federal Law Gazette Part II, p. 65).

By depositing the instrument of ratification with the General Secretary of the Council of Europe on 17 May 1988 and meeting the requirements according to Art. 15 paras 2 and 3 of the Charter, it entered into force for the Federal Republic of Germany on 1 September 1988.

According to Art. 1 of the Charter, the states which have signed and ratified the Charter undertake to be bound by the individual articles of the Charter when formulating domestic legislation and to recognize, if possible, the principle of local self-government in the Constitution.

The principles of the Charter are embodied in Art. 28 para 2 of the Basic Law which guarantees local authorities the right to regulate on their own responsibility all the affairs of the local community within the limits set by law. In addition, associations of local authorities, too, have the right of self-government in accordance with the law and within the limits of the functions assigned to them by law. The ordinary legislation of the Federation complies with these principles.

The constitutional guarantee is repeated in the constitutions of the individual Laender. The Land constitutions even provide guarantees for local self-government that go beyond the minimum guarantees of the Basic Law.

However, no provisions "immediately applicable" have been incorporated into the national law of the Federal Republic of Germany through the "Federal Act on the European Charter of Local Self-Government", since the Charter does not contain such provisions.

Judicial remedies in the event of infringement upon local self-government

a) The remedies that local self-government bodies can lodge if they feel their right to self-government to be impaired by legislation or internal measures are dependent on the type of legislation or the nature of the measure taken.

Pursuant to Art. 93 para 1 no 4b of the Basic Law of the Federal Republic of Germany, local authorities and associations of local authorities have the right to enter complaints before the Federal Constitutional Court on the ground that their right to self-government under Art. 28 has been violated. With regard to Land legislation, however, this right only exists where no complaint can be lodged at the Land Constitutional Courts. Such complaints are possible in Baden-Wuerttemberg, Bavaria, Brandenburg, Bremen, Hesse, Mecklenburg-Western Pomerania, Lower Saxony, North-Rhine/Westphalia, Rhineland-Palatinate, Saarland, Saxony, Saxony-Anhalt and Thuringia (i.e. all Laender which have a local government level, with the exception of Schleswig-Holstein).

In the individual Laender the self-governed local authorities moreover have the possibility to have the validity of legal provisions (i.e. statutory ordinances) below the rank of Land legislation verified by the competent Higher Administrative Court (Normenkontrollklage). The procedure is laid down in Sect. 47 of the Rules of the Administrative Courts - VwGO of 21 January 1960 (Federal Law Gazette Part I, 1960, p. 17).

b) Legal protection against supervisory measures by governmental supervisory authorities is subject to the general regulations concerning public law conflicts of a non-constitutional nature. This procedure, too, is laid down in the Rules of the Administrative Courts (VwGO). Pursuant to Sect. 40 para 1 of these Rules, an appeal to an administrative court is admissible where no legal provisions expressly refer the dispute to another category of court. Pursuant to Sect. 42 para 2 of the Rules of the Administrative Courts, an appeal to an administrative court may be lodged where the complainant claims the violation of his rights by an administrative act - as a rule, supervisory measures are considered as such acts - or by the rejection or omission of such an act.

Where administrative acts have been rejected or omitted (for instance in the context of the granting of a permission), local authorities may have recourse to the administrative courts in the form of an action to compel the performance of an administrative act for their benefit (Verpflichtungsklage).

Both types of action as a rule require preliminary proceedings before bringing an action before the administrative courts unless provisions in the local government statutes of the Laender provide that direct recourse to the administrative courts is admissible. However, this holds only true for Brandenburg and North-Rhine/Westphalia.

The preliminary proceedings are provided for in the 8th chapter of the Rules of the Administrative Courts, Sects. 66-80a. The first step for the local authority is to raise "objection". The authority responsible for the administrative act may uphold the objection and grant redress. If it doesn't, the next higher supervisory authority notifies the objection.

If no redress was granted, action to rescind or to compel the performance of an administrative act has to be brought within one month after the delivery of the notification of the objection.

The usual stages of appeal apply to the procedure for actions before the administrative courts, i.e. appeals against decisions of an administrative court of the first instance may be filed to the Higher Administrative Court.

Decisions by the Higher Administrative Court may be appealed to before the Federal Administrative Court if the Higher Administrative Court or, upon complaint against non-admission, the Federal Administrative Court give leave to appeal (Sect. 132 of the Rules of the Administrative Courts).

GREECE

Greece signed the European Charter of Local Self-government on 15 October 1985 in Strasbourg.

It was ratified by law 1850/1989 on the "Ratification of the European Charter of Local Self-Government", passed by the Hellenic Parliament and published in the Official Journal, first issue, No 114/10.05.1989. It has therefore been incorporated into domestic law.

The ratification of the Charter took place in conformity with Article 28 of the Hellenic Constitution, according to which, International Conventions constitute an integral part of the Hellenic domestic law from the moment of their ratification by law and entering into force.

Any legislation contrary to the Charter may be appealed against to the State Council which is the Supreme Administrative Court of Appeal responsible for the abrogation of any administrative act passed on the basis of a law considered unconstitutional and therefore non applicable.

HUNGARY

1. Incorporation of the European Charter of Local Self-Government into Hungarian domestic law

For the Republic of Hungary, the European Charter of Local Self-Government entered into force on 21 March 1994. It has not been formally incorporated into domestic law, although the decision has already been taken to present a draft-law to the National Assembly in order to do so. Nevertheless, the principles of the Charter are enshrined in Chapter IX of the Constitution of 1990, which relates to "local self-government".

Namely, as regards Article 4 of the Charter ("scope of local self-government"), Article 42 of the Constitution reads as follows: "The communities of the electors in communities, towns, in the capital city and its districts, as well as in the counties, shall have the right of local self-government. Local self-government means an independent and democratic administration of local public affairs by the community of electors and the exercise of local public authority in the interest of the population."

As regards Article 6 of the Charter ("appropriate administrative structures and resources for the tasks of local authorities"), Article 44 A, paragraph 1, lit. e of the Constitution reads as follows: "The local representative body (...) within the limits of the laws, shall set up its own organisation and determine its standing orders independently."

As regards Article 9 of the Charter ("financial resources of local authorities"), Article 44 A, paragraph 1, lit. b, c and d of the Constitution reads as follows: "The local representative body (...) shall exercise ownership rights in respect of local authority property, independently manage the local authority revenues and have the right to engage in entrepreneurial activities at its own risk; (...) shall be entitled to have its own revenues necessary for discharging its functions as defined by law, and shall furthermore have State support proportionate to those functions; within the limits of the laws, shall determine the types and rates of local taxes."

Finally, the Preamble of the Act LXV of 1990 on local governments reads as follows: "The National Assembly, following (...) the basic requirements of the European Charter of Local Self-Government, recognizes and protects the rights of the local communities to self-government."

2. Judicial remedies in the event of infringement of local self-government rights

Pursuant to Article 43, paragraph 2 of the Constitution, the rights and obligations of local self-governments shall be determined by law. The lawful exercise of local self-government shall include judicial protection and local governments can appeal to the Constitutional Court in order to protect their rights. Other provisions of law give full details of this guarantee.

For example, the head of the public administration office responsible for the legal supervision of local governments can only examine the lawfulness of local government acts in exercise of their discretionary powers; the head of the public administration office does not have the power to annul the decision taken by the local government, but can only call upon the involved party, within a deadline, to terminate the violation of law; the involved party shall examine the contents of the demand and by the deadline shall inform the head of the public administration office of the measures taken on the basis of the demand or of the disagreement with it.

If no measure is taken within the deadline, the head of the public administration office may:

a. ask the Constitutional Court to annul the unlawful local government decision;

b. initiate the judicial review of the unlawful decision;

c. convoke the representative body for terminating the violation and initiate the determination of the responsibility of the official of the representative body.

The action for the termination of the violation of law against the local government, the local minority government and the minority settlement government or the mayor shall be allowed within thirty days from the expiry of the determined deadline. Filing the action shall have no suspensory effect on the implementation of the decision, but the court may be requested to suspend the implementation. If the implementation of the decision involves a serious violation of public interest or irreversible damage, the suspension of the implementation shall be requested to the court together with the simultaneous notification of the involved party.

3. The right of application

In any issue concerning the right of self-government or the functions and powers of the local government, the representative body may, directly or through the organisations representing its interests, apply to the head of the supervisory body which is competent in the issue and may:

a. request information, data, an opinion on professional questions or the interpretation;

b. make proposals and initiate measures to be taken;

c. give its opinion concerning the activities of the supervisory body, raise objection against these activities, ask to change or withdraw any measure or decision taken by that body.

The body applied to shall respond to the substance of the application within thirty days.

If information, response or measures to be taken are not within the competence of the body applied to, it shall send the application within three days to the competent body and simultaneously inform the applying local government thereof.

4. The representation of the interests of local governments

In order to promote the protection and implementation of rights and interests of local self-governments and to develop their activities, local self-governments may create organisations to represent their interests.

The opinion of the national organisations representing the interests of local self-governments shall be sought for in connection with the draft State legislation and regulations concerning local governments. The central decision making organ shall be informed of the position of the organisation representing their interests.

ITALY

The Italian territory is divided into regions, provinces and municipalities. Regions are autonomous bodies with powers and functions as specifically provided for by the Constitution.

Provinces and municipalities are local autonomies whose functions are provided for by state laws.

The Italian Constitution explicitly recognises local self-government. According to the constitutional guidelines, the Italian State has carried out a wide administrative decentralisation in public services. Moreover, the State adjusts its own legislative principles and methods to the requirements of autonomies and decentralisation.

The Constitutional Court is responsible for the judicial protection of regional autonomies. The Court judges in the case of conflict between the State and the regions or between two regions as to the attribution of powers. The Court specifically verifies the conformity of laws with constitutional principles.

Regions can directly file appeals to the Constitutional Court which can declare the unconstitutionality of a state law or of the laws of other regions.

The above-mentioned possibility of a legal direct action before the Constitutional Court is based on the violation of a primary regional interest due to a law encroaching upon the regions' own competencies.

Italy ratified the European Charter of Local Self-Government by Law No. 439 dated 30 December 1989, in which Article 3 envisages that "every citizen shall respect the Charter as a State law".

On this basis, the Charter is considered an ordinary state law (not a constitutional law). By virtue of the political obligations deriving from the signature of the European Charter of Local Self-government, the Italian State cannot legislate against its contents and provisions.

The Constitutional Court has the competence to verify, on a case by case basis, whether a European provision is or is not in compliance with constitutional principles.

On the contrary, as European laws, by means of the ratification, are considered as domestic laws (that is to say "ordinary state laws") and are not constitutional laws, the Constitutional Court is not allowed to verify any conflicts between an ordinary state law and a European law.

The Constitutional Court has no competencies concerning the judicial protection of provinces and municipalities.

In case of violation of the European Charter of Local Self-Government, local authorities cannot appeal to civil courts which are exclusively competent to verify the violation of subjective civil rights.

Local authorities cannot even file appeals to the administrative courts either, against the violation of European Charter provisions. This kind of appeal may be basically directed against any acts of an administrative authority infringing rights or interests.

The present legislative policy tends to revise the local self-government system giving full effect to the principle of subsidiarity. National legislation is expected to directly attribute functions of exclusive local interest to local authorities in matters which are now within regional competencies (Article 118.1 of the Constitution).

At the same time, it will be necessary to identify means of protection of local self-government by giving local authorities direct or indirect access to the Constitutional Court. However, this would require a more general revision of the Constitution.

With reference to the above-mentioned reforms, the Ministry of the Interior established a committee entrusted with the study of the reform of the local authorities. This committee has already presented specific proposals.

LIECHTENSTEIN

On 11 May 1988, the Permanent Representative to the Council of Europe of the Principality of Liechtenstein deposited with the Council's Secretary General the instrument of ratification of the European Charter of Local Self-Government, which was opened for member States' signatures in Strasbourg on 15 October 1985.

In accordance with Article 12 paragraph 2, the Principality of Liechtenstein has declared itself to be bound by Articles 2, 3 (1), 4 (1), (2), (3), (4), (5) and (6), 6 (1), 7 (1) and (3), 8 (1), (2) and (3), 9 (1), (2), (5), (6) and (7), 10 (1) and 11 of the Charter.

The European Charter of Local Self-Government came into force in Liechtenstein on 1 September 1988. It was incorporated into domestic law following publication in the Official Gazette (Landesgesetzblatt Nr 21, 1988).

Supervision of the constitutionality of legislation and the legality of Government regulations in Liechtenstein is the responsibility of the Supreme Court (Staatsgerichtshof), which has authority to examine legal provisions in both concrete and abstract cases. In the former, that is in disputes over the application of a provision, the Supreme Court deals with questions either at the request of the court dealing with the relevant case or with regard to cases which it itself is considering. In abstract cases, that is when there are no specific proceedings, the Council examines the compatibility of legal provisions with the Constitution or existing legislation at the request of the Government or a local authority.

Local authorities are therefore entitled to request the Supreme Court to examine the compatibility of legal provisions with the Charter in both concrete and abstract cases. If a provision of domestic law conflicts with the Charter provisions by which the Principality of Liechtenstein has declared itself to be bound, the Supreme Court will revoke it. Such revocation has an in rem effect.

LUXEMBOURG

Luxembourg signed the European Charter of Local Self-Government on 15 October 1985 and ratified it in the Act of 18 March 1987.

The national procedure for implementing international treaties is set out in Article 37 of the Constitution, which deals with international treaties. Para. 1 states: "The Grand Duke shall conclude treaties. No treaty shall enter into force until it has been approved by law and published in the manner prescribed for the publication of laws". Para. 4 of the same article states: "The Grand Duke shall make the regulations and orders necessary for execution of treaties in the forms prescribed for executory measures for laws and with the same effects, without prejudice to matters reserved by the Constitution to the law". The internal execution of treaties is thus assimilated to the execution of domestic laws.

Thus, the European Charter of Local Self-Government has been enacted as a law in the Grand Duchy since the end of March 1987, since its approval by the Chamber of Deputies on 18 March 1987 was automatically followed by publication in the Luxembourg Official Gazette and, like any other law, it became binding three full days after publication.

Luxembourg, moreover, has undertaken to respect all the articles and paragraphs of the Charter.

There is no Constitutional Court in Luxembourg as yet, although the matter is being discussed as part of the process of constitutional reform.

At present, Luxembourg case-law does not recognise the right of courts to decide whether or not laws are compatible with the Constitution.

The courts must follow the laws in their judgments, but it is not their role to judge the laws themselves. If they were able to set laws aside for alleged incompatibility with the Constitution, this would entail interference by the judiciary with the legislature and thus confusion of powers.

Luxembourg public law thus affords no way in practice of eliminating laws deemed incompatible with the Constitution.

The provisions of the Charter could be cited before the Conseil d'Etat in proceedings to have a decision set aside. Having established grounds of nullity, the Conseil d'Etat is entitled only to overturn the challenged decision. If a decision is set aside for reasons of lack of competence, the matter is referred to the competent authority. Otherwise, it is referred back to the original authority, which must comply with the judgment of the Conseil d'Etat in giving a fresh decision on the merits.

This means that the Conseil d'Etat cannot substitute itself for the competent administrative authority, but can monitor the legality of the latter's acts.

To date, there would seem to be no judgments in the local government field referring to the European Charter of Local Self-Government or the European Convention on Human Rights.

MALTA

Malta ratified the European Charter of Local Self-Government on 6 September 1993 - the 17th country to do so.

The Local Councils Act (Act XV of 1993), the law which made provision for the setting up of Local Councils, regulates their functioning and also prescribes their competencies and jurisdiction was, in fact, modelled on the Charter itself.

In signifying its intention to sign, and subsequently ratify the Charter, Malta undertook to be bound by 13 paragraphs from the "compulsory" list and by 12 paragraphs from the "non-compulsory" list, thus:

Compulsory Non-Compulsory

Article 2 Article 4 paragraphs 3, 5 and 6
Article 3 paragraphs 1 and 2 Article 6 paragraphs 1 and 2
Article 4 paragraphs 1, 2 and 4 Article 7 paragraph 3
Article 5 Article 8 paragraphs 1 and 3
Article 7 paragraph 1 Article 9 paragraphs 7 and 8
Article 8 paragraph 2 Article 10 paragraphs 2 and 3
Article 9 paragraphs 1 and 2
Article 10 paragraph 1
Article 11

In doing so, Malta went beyond the minimum required and up to the maximum possible.

Although the Charter has not been formally incorporated into the Local Councils Act (the domestic law) the following sections, in our opinion, prescribe the procedure to be followed in the case where it becomes necessary to verify the conformity of an internal piece of legislation with the Charter.

Article 3 (2)

"The Council shall be a statutory local administrative authority having a distinct legal personality and capable of entering into contracts, of suing and being sued, and of doing all such things and entering into such transactions as are incidental or conducive to the exercise and performance of its functions as are allowed under this Act."

Article 38

"Local Councils shall have the right to challenge in court any decision which in any way interferes with the free exercise of their powers granted by this Act."

Such a right is exercisable vis-a-vis any authority and without any reservation."

NETHERLANDS

In the Netherlands, the European Charter of Local Self-Government was explicitly approved by Act of Parliament (1990). As a result of this approval, the Charter has been incorporated in Netherlands national law. The Charter has been declared applicable to provinces and municipalities in the Netherlands. At the time of approval, the Netherlands Parliament considered national law to be compatible with the Charter, with the exception of four items, on which restrictions were made (the question as to whether restrictions can now be abandoned is currently being investigated).

In the Netherlands there are no specific judicial procedures to examine internal legislation for compatibility with the Charter. Therefore, such judicial review is to be performed by the administrative judge, through the regular judicial procedures. In this connection, it is worth pointing out that in the Netherlands the judiciary can only test internal legislation against directly operative provisions of a treaty. Generally speaking, based on their wording the provisions of the Charter do not have direct effect in the Netherlands view. This is, however, ultimately for the judge to decide.

The legislator is expected to make certain that bills are compatible with the Charter.

NORWAY
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In Norway, international legal norms by which the Kingdom is bound are not a part of domestic law unless introduced therein by a domestic legal act chosen in conformity with constitutional requirements for each sort of norms (Act of Parliament as far as citizens are to be bound, and so on). Such introduction may take various forms (transformation, incorporation and so on).

According to the present system, no formal act of introduction is deemed to be necessary if domestic law is already found to be in conformity with the international obligations of the Kingdom at the moment of their entering into force.

The Government of Norway traditionally regards it as important to scrutinise relevant fields of domestic law before entering into international obligations, with the aim of preventing cases of conflict during the period of application of such obligations. Before the question of ratification of the European Charter of Local Self-Government was presented to Parliament, such scrutiny was made by the Ministry of Municipal Affairs and no modification in the domestic legislation was deemed necessary.

Thus, the Charter has not been incorporated into domestic law.

The Act of Local Government is, as far as we know, in full compliance with the Charter. Any change in legislation concerning the local authorities will be subject to a hearing including the local authorities and/or their organisations. This ensures that a possible conflict between the Charter and any new legislation in most cases will be spotted at this stage and may thereby be avoided.

If such a possible conflict should not be recognised at this stage, and the local authorities hold that the government's reading of a provision is in conflict with the Charter, and given that this conflict is not solved in any other way, the local authorities may bring their case to court, claiming they are not obliged to act in accordance with the Government's reading of this provision.

The fact that Norway has ratified the Charter would be regarded by the court as a strong argument for reading the provision in a way conforming it with the Charter, and thus avoiding the presumed conflict. This is even in the case of Acts of Parliament. And even if this possibility has been most noticeable regarding Supreme Court practice on the relationship between domestic legislation and international human rights, this is undoubtedly so in most fields of law.

Another question is to which extent municipalities are free, in their capacity as administrative bodies, to sue the State in fields where state bodies such as county governors ("prefects"), ministries or "administrative tribunals" de facto have some sort of administrative power superior to that of the municipality. For instance, the private party may ask the county governor, by way of administrative (non judicial) appeal, to overthrow municipal acts regarding the right to construct, or approval by some central governmental body may by needed for conferring full legal effect upon disputed parts of local planning decisions.

In such cases, disagreement concerning the extent of the state's power to overrule decisions of local government is not a sufficient reason for giving municipalities access to court. Apparently, such cases have never been tried in the Norwegian judicial system. It seems reasonable however to think that this situation in itself reflects present-day fundamentals of civil procedure. Such principles are unlikely to admit municipal court action against the State in matters where state bodies act as instances of administrative appeal, approval, etc. towards local administrative acts or omissions. This is so even if such cases certainly may have considerable influence on the extent of local autonomy under the law.

For the time being, the only way to escape from this situation seems to be in the possibility of concluding that, according to the European Charter of Local Self-Government, municipalities should have access to court even in administrative affairs of this kind.

Should such an outcome in the future become more than purely hypothetical, however, it would no doubt make it necessary for the legislator to rethink the structure of state control of municipal action.

Finally, it should be noted that Norwegian law does not allow litigation about either hypothetical questions or the correct reading of a provision. Litigation before the courts is only admitted when the claim is concrete.

Under the present Norwegian system of control of legal provisions in individual cases, statutory or subordinate legal provisions could not be declared formally nul and void. The formal outcome might be the application of the domestic provision as understood in the light of the Charter or - if contrary to superior domestic rules - non-application of the provision in individual cases.

It seems that no case with reference to the Charter has ever been brought before Norwegian courts

POLAND

I. The European Charter of Local Self-Government in Poland

The European Charter of Local Self-Government was ratified by Poland on 26 April 1993. Pursuant to Article 15 paragraph 1 of the Charter, the instrument of ratification was deposited with the Secretary General of the Council of Europe on 22 November 1993. As Poland did not deposit any notification (Article 12 paragraph 2) when depositing its instrument of ratification, it regards itself as bound by all the provisions of the Charter.

Pursuant to Article 15 paragraph 3, the Charter entered into force for the Republic of Poland on 1 March 1994.

The European Charter of Local Self-Government was published in the Official Gazette of the Republic of Poland, No.124, p.607, on 25 November 1994.

The Charter has been incorporated into domestic law. Polish legislation on local self-government is based on its provisions.

II. The status of international rules in the domestic legal system of the Republic of Poland

The Constitution currently in force does not contain any provisions defining the status of international law in the domestic legal system of the State other than the competence rule which defines the role of the President of the Republic of Poland where ratification of international agreements is concerned. The prior approval of the Diet must be obtained where ratification involves major financial burdens on the State or changes in the law. Discussions currently taking place on the form of the new Constitution stress the need to establish constitutional rules which can provide a solid basis for institutions which apply domestic law in areas where international law is involved.

In Poland, international law theory generally tends to give international law rules absolute priority over domestic rules. This would place the rules of international agreements
- after transformation or ex proprio vigore - between the Constitution and ordinary laws in the hierarchical system of legal rules.

In any event, according to this theory there is an evident need to lay down rules in the Constitution governing respect for and the implementation of international undertakings entered into by the State.

With regard to the binding force of the treaty in domestic relations, Polish legal literature stresses:

- the principle which requires the State to make the changes in its domestic laws needed to enable it to discharge its obligations under validly contracted international undertakings.

- Article 27 of the Vienna Convention on the law of treaties, whereby a party to a treaty may not effectively invoke the provisions of its internal legislation as justification for its failure to perform the treaty,

- the pacta sunt servanda principle (Article 26 of the Vienna Convention).

This still does not establish a priori the primacy of international law over national law, but merely justifies the requirement that contracted international undertakings be discharged, even where this involves amending domestic legislation.

III. The role of the Constitutional Court

In Poland, the body responsible for reviewing the constitutionality of legislation is the Constitutional Court, established by the law of 29 April 1985 which decreed that it would begin its mandate on 1 January 1986.

The law on the Constitution Court does not directly empower the judges of the Court to determine whether acts which comprise national law comply with international law conventions ratified by Poland, as such conventions lie outside the jurisdiction of the Court. Formerly, this exclusion was justified on the grounds that the constitutionality of international agreements could not be checked until such time as the lack of constitutional provisions on the relationship between international law and domestic law had been made good. However, the practice of the Constitutional Court is to refer to these agreements in its judgments as an auxiliary source.

Although, under current legislation, the Polish Constitutional Court cannot directly apply the rules [of international agreements] when reviewing the constitutionality or legality of the provisions of domestic law, it nonetheless takes account of international legal instruments and the trends which they reflect.

Because of the binding character of international agreements, the Constitutional Court takes them into consideration when interpreting legal rules. However, as the law stands, international rules cannot of themselves serve as the basis for a judgment.

In the course of its work, the Constitutional Court has assembled a body of constitutional concepts and fundamental principles to which it refers when reviewing the constitutionality of domestic laws.

Because the duty to implement undertakings entered into in international agreements is not explicitly laid down in the Constitution, the obligation to do so is based on interpretation, particularly of Article 1 of the Constitution which reads as follows: "The Republic of Poland is a democratic State governed by the rule of law which upholds the principles of social justice".

At the request of competent bodies (including local authorities), the Constitutional Court can, while furthering the principles of a democratic State governed by the rule of law, have recourse, in practice, to the principle pacta sunt servanda and - indirectly, on the basis of this interpretation of Article 1 of the Constitution - consider whether a domestic legal instrument complies with the European Charter of Local Self-Government.

PORTUGAL

The European Charter of Local Self-government was approved by Resolution No 28/90 of the Portuguese National Assembly, of 13.7.90, ratified by Presidential Decree No 58/90, of 28.9.90, and was published in the Official Journal of 23.10.90.

According to Article 138.b of the Constitution of the Portuguese Republic, the Charter ratification takes place once the Republic Assembly has approved it in conformity with Article 164.j). From an internal constitutional point of view, it is a treaty or international convention which requires the preliminary intervention of the Assembly with a view to its adoption and incorporation in the legal order, this matter being the subject of a legislative reservation.

According to paragraph 2 of Article 8 of the Constitution of the Portuguese Republic, the provisions of the Charter are incorporated and into force in domestic law from the moment they are published and until they are binding for the Portuguese State.

Therefore, the Charter has the force of law. The remedies in order to verify the conformity of an internal piece of legislation with the Charter are the following:

a) Rules which have force of law

In Portugal, the Civil Courts are competent to verify the conformity of the legislation with the Charter. According to Article 70.1,i of the law on the Constitutional Court, their decisions can be the subject of appeal before the Constitutional Court in case of:

I. refusal to apply a legal provision which is in breach of an international convention;

II. application of a provision, the legality of which has been contested during the procedure;

III. application of a provision declared illegal by the Constitutional Court.

The scope of these appeals only covers the issues of a constitutional-legal nature (primacy of international law over internal law) or of a international-legal (whether a rule is in force): the Constitutional Court does not decide on the specific issue what is left for the civil courts.

b) Regulation issued by state administration

The administrative judicial review only covers regulatory provisions or other provisions issued by the State administration (the procedural law for administrative and fiscal tribunals and the administrative and fiscal tribunals statute). However, the Charter does not provide for the implementation of the principles it enshrines by provisions of this nature.

This being said, local authorities are not entitled to lodge an appeal against a legal provision directly before the Constitutional Court. They must have a direct and concrete interest in the decision, i.e: they can only lodge an appeal if a concrete case is pending before a civil court.

In addition to the control of legality, there is another way to verify the conformity of an internal piece of legislation with the Charter, indirectly by means of control of constitutionality.

In this case, again, local authorities cannot introduce an appeal directly before the Constitutional Court but they must have a direct and concrete interest in a case pending before a civil court (concrete control of constitutionality).

However, local authorities can request the President of the Republic or the Attorney General ("Pourvoyeur de Justice") to lodge a direct appeal (abstract control of constitutionality).

This appeal -concrete or abstract control of constitutionality- allows for the verification of whether the provisions of a piece of legislation breach a constitutional provision.

Because the Constitution of the Portuguese Republic envisages the principles of the Charter, the non-conformity of an internal piece of legislation to the Charter implies also the non-conformity to the Constitution.

ROMANIA

Romania signed the Charter on October 4, 1994, but the Parliament has not yet ratified it.

Nevertheless, both the principles of the Charter as well as the judicial procedures allowing appeal to the Administrative Dispute Claims Court have already been incorporated into Romanian legislation specific to this domain, in order for the local authorities to protect their rights.

SPAIN

Official Journal No 47, of 24 February 1989, published the approval and ratification by the Head of State of the European Charter of Local Self-government signed in Strasbourg on 15 October 1985, the full text of the said Charter appearing in the Official Journal.

The following declaration was made on ratification:

"The Kingdom of Spain declares that the European Charter of Local Self-government shall apply to the whole national territory as far as the authorities regulated by the Spanish law on local authorities and foreseen in Articles 140 and 141 of the Constitution are concerned. However, the Kingdom of Spain does not consider itself bound by paragraph 2 of Article 3 of the Charter to the extent that the system of direct suffrage foreseen therein should be implemented in all local authorities falling within the scope of the Charter.".

The Charter came into force in the Kingdom of Spain on 1 March 1989, in accordance with the provisions of its Article 15.3, as laid down in the final paragraph of its publication in the aforementioned Official Journal.

The European Charter of Local Self-government was ratified after receiving the prior authorisation of the "Cortes Generales" for which Article 94.1 of the Constitution provides. From the standpoint of the Spanish Constitution, therefore, the Charter is an international treaty or agreement, needing prior intervention by Parliament with a view to its approval and incorporation into the internal legal order.

So this text is part of the internal legal order, in accordance with the provisions of Article 96.1 of the Constitution, which provides that the provisions of treaties "may only be repealed, amended or suspended in the manner provided in the treaties themselves (in the case in point, in Articles 15 to 18 of the Charter) or in accordance with the general rules of international law". Furthermore, denunciation of the Treaty would also require the "Cortes Generales" to give prior authorisation, in accordance with the provisions of Article 96.2 of the Constitution.

The European Charter of Local Self-government has the rank and force of a law in Spain. It thus formally has the status of the law instigating the institutional guarantee of local autonomy applicable to the whole territory of the state, namely Law 7/85, of 2 April 1985, the outline law on local authorities.

The Charter and the outline law on local authorities - which in any case has to be interpreted in line with the Charter - are the basis in national law for the internal local order which, throughout national territory, guarantees the minimum common autonomy which local authorities are assured of under the Constitution. The outline law on local authorities reiterates the principles contained in the Charter (with the exception of the reservation expressed by the Kingdom of Spain in respect of Article 3.2, as already stated).

The principles in the European Charter of Local Self-government - like the provisions of the aforementioned outline law - have to be complied with by the Autonomous Communities when they draw up their own local legislation under Article 148.1 of the Constitution, and by all tiers of government - state, Autonomous Communities and local authorities - when approving rules and regulations relating to local self-government (within their respective fields of competence).

Local self-government is an essential part of citizens' participation in public affairs, and the rules governing this field cannot ignore the right to such participation, guaranteed by Article 23 of the Constitution.

This right, however, is not the only basic right included in the European Charter of Local Self-government, which also, under Article 10, covers the right to associate, at both national and international level.

These facts make it possible to argue, by extension, and to the necessary degree, that the provisions about the interpretation of the principles relating to fundamental rights recognised by Article 10.2 of the Constitution are applicable to the European Charter of Local Self-government.

It nevertheless should be said that local self-government is not a fundamental right in the Spanish legal order and that the case law of the Constitutional Court has established that only individuals, and not legal entities, may enjoy the rights laid down in Article 23 of the Constitution.

Article 11 of the Charter provides that "Local authorities shall have the right of recourse to a judicial remedy in order to secure free exercise of their powers and respect for such principles of local self-government as are enshrined in the constitution or domestic legislation".

The following remedies exist against a regulation likely to breach the European Charter of Local Self-government:

A. Provisions having the status of regulations

Local authorities may lodge an administrative appeal to the appropriate bodies within the administrative court system (Articles 9.4 and 24 of Organic Law 6/1987 on judicial authority, of 1 July 1987, and Articles 1, 2 and 3 of the Law on Administrative Courts).

B. Rules having the status and force of law

1. In Spain, the Constitutional Court has sole power to monitor the constitutionality of legislation (that of the state and the Autonomous Communities), and a restricted list of individuals/groups are eligible to lodge an appeal on grounds of unconstitutionality: the President of the Government, the Defender of the People, fifty Deputies, fifty Senators, in any circumstances; the executive corporate bodies and Assemblies of the Autonomous Communities, in respect of a law, a provision or an act having the force of a state law and likely to interfere with their autonomy (Articles 162.1.a. of the Spanish Constitution and Article 32 of Organic Law 2/1979 on the Constitutional Court, of 3 October 1979).

2. Nevertheless, local authorities have a number of channels for reacting against rules likely to interfere with their autonomy:

a. They are entitled to challenge before the Constitutional Court the national or Autonomous Community laws likely to interfere with their autonomy, which they may do through the National Commission for Local Self-government. The procedure for this purpose consists of an application from the said Commission - or just from the local authority representatives on it - to the individuals/groups eligible under the Constitution to lodge an appeal on grounds of unconstitutionality as described above (Articles 63.3 and 119 of Law 7/1985, the outline law on local authorities, of 2 April 1985).

b. In respect of administrative appeals lodged against measures having status below that of laws (regulations or practical acts) and developing or applying laws considered to interfere with their autonomy guaranteed by the Constitution, local authorities may appeal to the judicial body dealing with the appeal on the "question of unconstitutionality", based upon the possible incompatibility with the Constitution of the rule on the basis of which the challenged measures have been taken. The decision on whether or not to bring the issue before the Constitutional Court is then a matter for that body.

This action may be repeated at each successive level of proceedings, until such time as a definitive judgment has been handed down (Articles 163 of the Spanish Constitution and 35, 36 and 37 of Law 2/1979 on the Constitutional Court, of 3 October 1979).

c. It ought to be added that while in Spain, local self-government is not considered to be a "fundamental right" among the "fundamental rights and public liberties" which may be the subject of an appeal under Article 53.2 of the Spanish Constitution and Title III of Organic Law 2/1979 on the Constitutional Court, of 3 October 1979, for the protection of the rights for which Articles 14 to 29 of the Constitution provide (Constitutional Court Decree 269/1983, of 8 June 1983), local authorities are nevertheless entitled to lodge such appeals in the event of the violation of the aforementioned rights and liberties enjoyed by them, or if they cite a legitimate interest (Constitutional Court judgments 19/1983, of 14 March 1983, and 82/1983, of 20 October 1983).

To the extent that the European Charter of Local Self-government comes within this field, it falls under Article 10.2 of the Spanish Constitution, which relates to the interpretation of the principles relating to the fundamental rights and liberties recognised by the Constitution (eg the right to associate) in conformity with the provisions of the international treaties and agreements on the same subjects ratified by Spain.

SWEDEN

Local self-government is a longstanding tradition in Sweden and of fundamental constitutional significance. The principle of local self-government is enshrined in the Constitution Act as an integral part of democratic government in Sweden. Sweden ratified the Charter in May 1988 (Act of the Swedish Parliament 1988/89:251). It was presented to the Swedish Parliament through the bill 1988/89:119. It was not necessary to alter Swedish law on the account of the ratification of the Charter.

Article 2

The principle of local self-government is enshrined in Chapter 1, Art. 1 in the Instrument of Government.

Article 3

The Instrument of Government, the Swedish Local Government Act (Chapter 1, section 1) and the Election Act are built on the principles stipulated in Article 3.

Article 4

1. The basic powers and responsibilities of local authorities are laid down in Chapter 8, section 5 in the Instrument of Government.

2. The Swedish municipalities and county councils may themselves attend to matters of general concern which are connected with the area of the municipality or county council or with their members and which are not to be attended to solely by the state, another municipality, another county council or some other body (the Swedish Local Government Act Chapter 2, section 1).

3. The principle of decentralised civil administration has for a long time been the guidance for the administration policy in Sweden.

4. In Sweden responsibilities are shared between the state and the municipalities/county councils on the basis of the principles in the Article.

5. The Swedish legal system fulfils the demands in this Article.

6. The Swedish tradition is built on this order.

Article 5

The changing of local authority boundaries is regulated in a special act, the Act (1977:411) of change in the Swedish local authority boundaries for municipality and county council. The act fulfils this Article.

Article 6

1. The Swedish Local Government Act enables the local authorities to determine its own organisation (Chapter 3). The municipal assembly shall appoint a municipal executive committee, a county council and a county council executive committee (section 2). In section 3, it states that the assembly shall appoint the committee needed.

2. Swedish local authorities principally have full freedom in this area.

Article 7

Chapter 4 in the Swedish Local Government Act regulates the conditions of office of local elected representatives.

1. There is not any restriction in this area in the Swedish legislation.

2. Leaves and financial benefits for the local elected representatives are regulated in Chapter 4, section 11-15 of the Swedish Local Government Act. Section 11-13 entitles the elected representatives to leaves as when their mandates so require as well as to reasonable compensation for the earnings and pension and holiday benefits which they lose when discharging their mandates. Section 14 gives the assembly freedom to decide that local elected representatives can receive different compensations and financial benefits.

3. The limitations of the eligibility are regulated in Chapter 4, section 5 and 6 in the Swedish Local Government Act.

Article 8

This Article regulates administration supervision of local authorities' activities which occurs rarely in Sweden. The Swedish system for control and supervision of municipal activity fulfils the demands of the Article.

Article 9

The right of municipalities and county councils to levy taxes for the discharge of their duties is laid down in the Instrument of Government (Chapter 1, Art. 7). This right is basicly unlimited. The municipalities and county councils may levy charges for services and utilities which they provide (Chapter 8, section 3a, in the Swedish Local Government Act).

The questions of financial equalisation among municipalities or county councils are regulated in different acts, designed to correct the effects of the unequal distribution of potential sources of finance and of the financial burden they must support. They do not diminish the discretion the local authorities may exercise.

Government grants to local authorities are mostly general. There are very few special grants.

Article 10

The local authorities in Sweden have the right to co-operate to carry out tasks of common interest both through local federations and through companies, communities, foundations, etc.

The Swedish Association of Local Authorities is safeguarding the municipalities interests and the Federation of Swedish County Councils the interests of county councils. On the international level local authorities participate in the International Union of Local Authorities (IULA). A direct co-operation across the Swedish border has been made possible and is taken place. An agreement between Denmark, Finland, Norway and Sweden concerning co-operation across the Nordic National Frontiers between Local Authorities has been made and Sweden has also acceded to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities.

Article 11

Most administrative decisions can be appealed against to a court. Some decisions are to be appealed to the Government or to an administrative authority as the highest instance. The Supreme Administrative Court can allow review in matters where the Government or an administrative authority are the highest instance. If a decision by an authority affects a municipality or a county council, the local authority can use the instrument of a review to check its legality (The Instrument of Government Chapter 11, Art. 11).

There is not any court in Sweden which has the task to - on the application of a local authority - verify whether or not an internal piece of legislation is in conformity with the Instrument of Government.

However, another order exists: the Law Council, which is regulated in Chapter 8, Art. 18 of the Instrument of Government. It is composed of judges from the Supreme Court and the Supreme Administrative Court. Its competence refers to give an opinion on draft legislation.

The opinion of the Law Council shall be requested by the Government or, under the provision of the Riksdag Act, by a Committee of the Riksdag, before the Riksdag takes a decision on a fundamental law concerning the freedom of press, or on any Act of law limiting the rights of access to public documents and other similar rights. Its opinion shall also be requested for any act concerning local government taxation. However, the foregoing provision shall not apply if obtaining an opinion from the Law Council would be without significance because of the nature of the matter, or would delay the handling of legislation in such a way as to cause serious detriment. In addition, failure to obtain the Law Council's opinion on draft legislation will not prevent the application of the law.

The Law Council's scrutiny shall relate to:

- the way in which the proposal relates to the fundamental laws and to the legal system in general;

- the way in which the different provisions contained in the proposal relate to each other;
- the way in which the proposal relates to the requirement for security before the law;

- whether the proposal is framed in such a manner that the resulting law can be assumed to satisfy the above requirements; and

- what problems are likely to arise in applying the law.

Furthermore Chapter 11, Art. 14 of the Instrument of Government states that if a court of any other public body considers that a provision conflicts with a provision of a fundamental law or with a provision of any other superior statute, or that the procedure prescribed was set aside in any important respect when the provision was introduced, the provision may not be applied. However, if the provision has been approved by the Riksdag or by the Government, it may be set aside only if the fault is manifest.

In the meaning of Chapter 11, Article 14 of the Instrument of Government, the provisions of the Charter would not be considered as a provision of fundamental law and probably not as a provision of superior status.

The way to try a decision by a local authority is regulated in Chapter 10 in the Swedish Local Government Act. Chapter 10, Section 1 states that any member of a municipality or county council is entitled to have the legality of a decision by the municipality or county council tested by appealing against it to the administrative court in first instance and to the administrative court of appeal as second instance. According to Section 8 in the same chapter, the court may only quash a decision and not modify it. If the court quashes a decision or forbids its enforcement, the decision may by appealed against by the municipality or county council and by their members.

TURKEY

Turkey ratified the Charter on 21.11.1988, and it has been adopted by the Turkish Grand National Assembly, by law n° 3723 of 8.5.1991, in conformity with Article 90 paragraph 1 of Turkish Constitution according to which "The ratification of treaties concluded with foreign states and international organisations on behalf of the Republic of Turkey, shall be subject to adoption by the Grand National Assembly (TGNA) by a law approving the ratification." Once incorporated into the domestic law following the approval of TGNA, the Charter is subject to change only by following the same procedure.

The fourth paragraph of Article 90 explains the status of ratified international agreements in the following terms: "international agreements duly put into effect carry the force of law. No appeal to the Constitutional Court can be made with regard to these agreements, on the ground that they are unconstitutional."

Concerning judicial remedies available to local authorities, there are five categories of acts in the Turkish legal system: the Constitution, laws, decrees having force of law, regulations, ordinances by laws. Texts belonging to each category have to be in accordance with those belonging the prior ones.

Constitutional provisions are not subject to appeal.

It is possible to appeal to the Constitutional Court on the ground that a law is unconstitutional, except in the case of the international agreements.

Decrees having force of laws are issued by the Council of Ministers, under certain circumstances for a limited period of time. Following this period they will either become a law by approval of the TGNA, or they will be void. During this period these decrees will be treated as laws. Therefore, it is possible to appeal against them as against laws.

The regulations and ordinances by laws are issued by the ministries and are considered as administrative decisions, subject to appeal on the grounds that they are not in conformity with legal instruments of the superior categories.

Local authorities can appeal to the administrative courts in order to check whether or not these acts are consistent with the Charter.