Chart Local Self Government_en

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European Chartero Local Sel -Government

and explanatory report


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Titles in the series L&R Local&Regional

Charte europenne de lautonomie locale et rapport explicatif ISBN: 978-92-871-6774-3

Manifesto for a new urbanity European Urban Charter II ISBN: 978-92-871-6538-1

Manifeste pour une nouvelle urbanit Charte urbaine europenne II ISBN: 978-92-871-6537-4

Gods in the city

Intercultural and interreligious dialogue at local level ISBN: 978-92-871-6384-4

Des Dieux dans la villeLe dialogue interculturel et interreligieux au niveau local ISBN: 978-92-871-6380-6

50 ans de dmocratie locale en EuropeISBN: 978-92-871-6360-8

50 years of local democracy in EuropeISBN: 978-92-871-6385-1


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L&R Local&RegionalREFERENCE


and explanatory report


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French edition:

Charte europenne de lautonomie locale et rapport explicatif

ISBN 978-92-871-6774-3

Reproduction o the texts in this publication is authorised provided thatthe ull title o the source, namely the Council o Europe, is cited. I theyare intended to be used or commercial purposes or translated into one

o the non-ofcial languages o the Council o Europe, please contactpublishing @coe.int.

Cover: Photo credit Council o EuropeCover design: Big FamilyLayout: Documents and Publications Production Department (SPDP),Council o Europe

Council o Europe PublishingF-67075 Strasbourg Cedexhttp://book.coe.int

ISBN 978-92-871-6775-0 Council o Europe, March 2010Printed at the Council o Europe


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Contents

Introduction ...................................................................................................... 9

European Charter o Local Sel -Government

Preamble ........................................................................................................... 13

Part I .................................................................................................................... 14Part II ................................................................................................................... 18

Part III .................................................................................................................. 19

Explanatory report

Origins o the Charter ................................................................................... 25

General remarks .............................................................................................. 29

Commentary on the Charters provisions .............................................. 33


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Introduction The spectacular advance o local and regional democracy was themain innovation o 20th century democracy. The recognition o local democracy by the Council o Europe member states led to theelaboration o the European Charter o Local Sel -Government the

rst internationally binding treaty that guarantees the rights o com-munities and their elected authorities. This text, which a rms therole o communities as the rst level or practising democracy, hasbecome the benchmark international treaty in this area.

The European Charter o Local Sel -Government was drawn up withinthe Council o Europe by a committee o governmental experts underthe authority o the Steering Committee or Regional and MunicipalMatters on the basis o a dra t proposed by the Standing Con erenceo Local and Regional Authorities o Europe (CLRAE), predecessor o the Congress o Local and Regional Authorities. It was opened or

signature as a convention by the Council o Europe member states on15 October 1985, and entered into orce on 1 September 1988. As o 1 January 2010, the Charter had been rati ed by 44 o the 47 Councilo Europe member states.

The Charter requires that the principle o local sel -government beembedded in domestic law or in the Constitution in order to guar-antee its e ective implementation. It lays down the principles o

the democratic unctioning o communities, and is the rst treatyto establish the principle o the trans er o competences to localcommunities, which must be accompanied by a trans er o nan-cial resources. This principle, known as the principle o subsidiarity,allows or the decentralisation o power towards the level closest tothe citizen

The Charter guarantees the conditions o o ce o local elected rep-resentatives, and their ability to exercise their unctions reely. It


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establishes a number o sa eguards to protect the rights o localcommunities: boundaries cannot be changed without communityagreement, and the supervision o local authorities activities must

be de ned by law, with the possibility o judicial recourse.States undertake to respect a core o basic principles to which noreser vation is possible, such as: the right o citizens to participatein managing public a airs; the key rights o communities to enjoyautonomy and sel -government, elect their local bodies and to havetheir own competences, administrative structures and inancialresources; or the right to judicial recourse in case o inter erence

rom other levels. Through these core principles, the Charter seeks toensure the compatibility o the diverse structures o local communi-ties in the Council o Europe member states. However, the nal aimremains the respect o all o the Charters provisions.

The countries which have rati ed the Charter are bound by its pro-visions. The Charter requires compliance with a minimum number o principles that orm a European oundation o local democracy. TheCongress o Local and Regional Authorities makes sure that these

principles are observed.


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Preamble

The member states o the Council o Europe, signatory hereto,

Considering that the aim o the Council o Europe is to achieve agreater unity between its members or the purpose o sa eguard-ing and realising the ideals and principles which are their commonheritage;

Considering that one o the methods by which this aim is to beachieved is through agreements in the administrative eld;

Considering that the local authorities are one o the main oundationso any democratic regime;

Considering that the right o citizens to participate in the conduct o public a airs is one o the democratic principles that are shared byall member states o the Council o Europe;

Considering that it is at local level that this right can be most directlyexercised;

Convinced that the existence o local authorities with real respon-sibilities can provide an administration which is both e ective andclose to the citizen;

Aware that the sa eguarding and rein orcement o local sel -

government in the di erent European countries is an importantcontribution to the construction o a Europe based on the principleso democracy and the decentralisation o power;

Asserting that this entails the existence o local authorities endowedwith democratically constituted decision-making bodies and pos-sessing a wide degree o autonomy with regard to their responsi-bilities, the ways and means by which those responsibilities are exer-cised and the resources required or their ul lment,


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Have agreed as ollows:

Article 1

The Parties undertake to consider themselves bound by the ollow-ing articles in the manner and to the extent prescribed in Article 12o this Charter.

Part I

Article 2 Constitutional and legal oundationor local sel -government

The principle o local sel -government shall be recognised in domes-tic legislation, and where practicable in the constitution.

Article 3 Concept o local sel -government

1. Local sel -government denotes the right and the ability o localauthorities, within the limits o the law, to regulate and manage asubstantial share o public a airs under their own responsibility and

in the interests o the local population.2. This right shall be exercised by councils or assemblies composedo members reely elected by secret ballot on the basis o direct,equal, universal su rage, and which may possess executive organsresponsible to them. This provision shall in no way a ect recourse toassemblies o citizens, re erendums or any other orm o direct citizenparticipation where it is permitted by statute.

Article 4 Scope o local sel -government

1. The basic powers and responsibilities o local authorities shall beprescribed by the constitution or by statute. However, this provisionshall not prevent the attribution to local authorities o powers andresponsibilities or speci c purposes in accordance with the law.

2. Local authorities shall, within the limits o the law, have ull dis-cretion to exercise their initiative with regard to any matter which is


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not excluded rom their competence nor assigned to any otherauthority.

3. Public responsibilities shall generally be exercised, in pre erence,by those authorities which are closest to the citizen. Allocation o responsibility to another authority should weigh up the extent andnature o the task and requirements o e ciency and economy.

4. Powers given to local authorities shall normally be ull and exclu-sive. They may not be undermined or limited by another, central orregional, authority except as provided or by the law.

5. Where powers are delegated to them by a central or regionalauthority, local authorities shall, inso ar as possible, be allowed dis-cretion in adapting their exercise to local conditions.

6. Local authorities shall be consulted, inso ar as possible, in duetime and in an appropriate way in the planning and decision-makingprocesses or all matters which concern them directly.

Article 5 Protection o local authority boundaries

Changes in local authority boundaries shall not be made withoutprior consultation o the local communities concerned, possibly bymeans o a re erendum where this is permitted by statute.

Article 6 Appropriate administrative structuresand resources or the tasks o local authorities

1. Without prejudice to more general statutory provisions, localauthorities shall be able to determine their own internal adminis-trative structures in order to adapt them to local needs and ensuree ective management.

2. The conditions o service o local government employees shall besuch as to permit the recruitment o high-quality sta on the basis o merit and competence; to this end adequate training opportunities,remuneration and career prospects shall be provided.


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Article 7 Conditions under which responsibilitiesat local level are exercised

1. The conditions o o ce o local elected representatives shallprovide or ree exercise o their unctions.

2. They shall allow or appropriate inancial compensation orexpenses incurred in the exercise o the o ce in question as well as,where appropriate, compensation or loss o earnings or remuner-ation or work done and corresponding social wel are protection.

3. Any unctions and activities which are deemed incompatible withthe holding o local elective o ce shall be determined by statute or

undamental legal principles.

Article 8 Administrative supervisiono local authorities activities

1. Any administrative supervision o local authorities may onlybe exercised according to such procedures and in such cases as areprovided or by the constitution or by statute.

2. Any administrative supervision o the activities o the localauthorities shall normally aim only at ensuring compliance with thelaw and with constitutional principles. Administrative supervisionmay however be exercised with regard to expediency by higher-levelauthorities in respect o tasks the execution o which is delegated tolocal authorities.

3. Administrative supervision o local authorities shall be exercised

in such a way as to ensure that the intervention o the controllingauthority is kept in proportion to the importance o the interestswhich it is intended to protect.

Article 9 Financial resources o local authorities

1. Local authorities shall be entitled, within national economicpolicy, to adequate nancial resources o their own, o which theymay dispose reely within the ramework o their powers.


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2. Local authorities nancial resources shall be commensurate withthe responsibilities provided or by the constitution and the law.

3. Part at least o the nancial resources o local authorities shallderive rom local taxes and charges o which, within the limits o statute, they have the power to determine the rate.

4. The inancial systems on which resources available to localauthorities are based shall be o a su ciently diversi ed and buoy-ant nature to enable them to keep pace as ar as practically possiblewith the real evolution o the cost o carrying out their tasks.

5. The protection o nancially weaker local authorities calls orthe institution o nancial equalisation procedures or equivalentmeasures which are designed to correct the e ects o the unequaldistribution o potential sources o nance and o the nancial burdenthey must support. Such procedures or measures shall not diminishthe discretion local authorities may exercise within their own sphereo responsibility.

6. Local authorities shall be consulted, in an appropriate manner,

on the way in which redistributed resources are to be allocated tothem.

7. As ar as possible, grants to local authorities shall not be ear-marked or the nancing o speci c projects. The provision o grantsshall not remove the basic reedom o local authorities to exercisepolicy discretion within their own jurisdiction.

8. For the purpose o borrowing or capital investment, local author-

ities shall have access to the national capital market within the limitso the law.

Article 10 Local authorities right to associate

1. Local authorities shall be entitled, in exercising their powers, toco-operate and, within the ramework o the law, to orm consortiawith other local authorities in order to carry out tasks o commoninterest.


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2. The entitlement o local authorities to belong to an associationor the protection and promotion o their common interests and to

belong to an international association o local authorities shall be

recognised in each state.3. Local authorities shall be entitled, under such conditions as maybe provided or by the law, to co-operate with their counterparts inother states.

Article 11 Legal protection o local sel -government

Local authorities shall have the right o recourse to a judicial remedy

in order to secure ree exercise o their powers and respect or suchprinciples o local sel -government as are enshrined in the constitu-tion or domestic legislation.

Part II Miscellaneous provisions

Article 12 Undertakings

1. Each Party undertakes to consider itsel bound by at least twenty

paragraphs o Part I o the Charter, at least ten o which shall beselected rom among the ollowing paragraphs:

Article 2, Article 3, paragraphs 1 and 2, Article 4, paragraphs 1, 2 and 4, Article 5, Article 7, paragraph 1,

Article 8, paragraph 2, Article 9, paragraphs 1, 2 and 3, Article 10, paragraph 1, Article 11.

2. Each Contracting State, when depositing its instrument o rati-cation, acceptance or approval, shall noti y the Secretary General

o the Council o Europe o the paragraphs selected in accordancewith the provisions o paragraph 1 o this article.


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3. Any Party may, at any later time, noti y the Secretary General thatit considers itsel bound by any paragraphs o this Charter which it hasnot already accepted under the terms o paragraph 1 o this article.

Such undertakings subsequently given shall be deemed to be anintegral part o the rati cation, acceptance or approval o the Partyso noti ying, and shall have the same e ect as rom the rst day o the month ollowing the expiration o a period o three months a terthe date o the receipt o the noti cation by the Secretary General.

Article 13 Authorities to which the Charter applies

The principles o local sel -government contained in the presentCharter apply to all the categories o local authorities existing withinthe territory o the Party. However, each Party may, when depositingits instrument o rati cation, acceptance or approval, speci y the cat-egories o local or regional authorities to which it intends to con nethe scope o the Charter or which it intends to exclude rom its scope.It may also include urther categories o local or regional authoritieswithin the scope o the Charter by subsequent noti cation to the

Secretary General o the Council o Europe.

Article 14 Provision o in ormation

Each Party shall orward to the Secretary General o the Council o Europe all relevant in ormation concerning legislative provisions andother measures taken by it or the purposes o complying with theterms o this Charter.

Part III

Article 15 Signature, ratifcation and entry into orce

1. This Charter shall be open or signature by the member stateso the Council o Europe. It is subject to rati cation, acceptance orapproval. Instruments o rati cation, acceptance or approval shall bedeposited with the Secretary General o the Council o Europe.


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2. This Charter shall enter into orce on the rst day o the monthollowing the expiration o a period o three months a ter the date on

which our member states o the Council o Europe have expressed

their consent to be bound by the Charter in accordance with theprovisions o the preceding paragraph.

3. In respect o any member state which subsequently expressesits consent to be bound by it, the Charter shall enter into orce on the

rst day o the month ollowing the expiration o a period o threemonths a ter the date o the deposit o the instrument o rati cation,acceptance or approval.

Article 16 Territorial clause

1. Any state may, at the time o signature or when depositing itsinstrument o rati cation, acceptance, approval or accession, speci ythe territory or territories to which this Charter shall apply.

2. Any state may at any later date, by a declaration addressed to theSecretary General o the Council o Europe, extend the applicationo this Charter to any other territory speci ed in the declaration. Inrespect o such territory the Charter shall enter into orce on the rstday o the month ollowing the expiration o a period o three monthsa ter the date o receipt o such declaration by the Secretary General.

3. Any declaration made under the two preceding paragraphs may,in respect o any territory speci ed in such declaration, be withdrawnby a noti cation addressed to the Secretary General. The withdrawalshall become e ective on the rst day o the month ollowing the

expiration o a period o six months a ter the date o receipt o suchnoti cation by the Secretary General.

Article 17 Denunciation

1. Any Party may denounce this Charter at any time a ter the expir-ation o a period o ve years rom the date on which the Charterentered into orce or it. Six months notice shall be given to theSecretary General o the Council o Europe. Such denunciation shall


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not a ect the validity o the Charter in respect o the other Partiesprovided that at all times there are not less than our such Parties.

2. Any Party may, in accordance with the provisions set out in thepreceding paragraph, denounce any paragraph o Part I o the Charteraccepted by it provided that the Party remains bound by the numberand type o paragraphs stipulated in Article 12, paragraph 1. AnyParty which, upon denouncing a paragraph, no longer meets therequirements o Article 12, paragraph 1, shall be considered as alsohaving denounced the Charter itsel .

Article 18 Notifcations

The Secretary General o the Council o Europe shall noti y the mem-ber states o the Council o Europe o :a . any signature;b. the deposit o any instrument o rati ication, acceptance or

approval;c . any date o entry into orce o this Charter in accordance with

Article 15;d . any noti ication received in application o the provisions o

Article 12, paragraphs 2 and 3;e. any noti ication received in application o the provisions o

Article 13;f . any other act, noti cation or communication relating to this

Charter.

In witness whereo the undersigned, being duly authorised thereto,have signed this Charter.

Done at Strasbourg, this 15th day o October 1985, in English andFrench, both texts being equally authentic, in a single copy whichshall be deposited in the archives o the Council o Europe. TheSecretary General o the Council o Europe shall transmit certi edcopies to each member state o the Council o Europe.


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Explanatory report

The text o the explanatory report was prepared on the basis o thediscussions o the Steering Committee or Regional and MunicipalMatters and submitted to the Committee o Ministers o the Council

o Europe. This report does not constitute an instrument providingan authoritative interpretation o the text o the Charter, although itmay acilitate the understanding o its provisions.


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Origins o the Charter

The European Charter o Local Sel -Government is the culminationo a series o initiatives and many years o deliberation within theCouncil o Europe.

The protection and strengthening o local autonomy in Europe bymeans o a document expounding the principles subscribed to byall the democratic states o Europe is a longstanding ambition inlocal government circles. Moreover, it was recognised at an earlystage that such a text should aim at securing the adherence o thosewhose actions are primarily at issue in any de ence o local autonomy,namely governments.

The Council o Europe, as the custodian o human rights and theupholder o the principles o democratic government, was the obvi-ous ramework within which to dra t and adopt such an instrument;all the more so because, as long ago as 1957, it showed its appreci-ation o the importance o local authorities by establishing or thema representative body at European level which has since become theStanding Con erence o Local and Regional Authorities o Europe(CLRAE).1

It was indeed the CLRAE which, in its Resolution 64 (1968), proposeda Declaration o Principles on Local Autonomy and called upon the

Committee o Ministers o the Council o Europe to adopt it. Thisinitiative was supported by the Consultative Assembly, which inits Recommendation 615 (1970) presented to the Committee o Ministers a text closely based on that o the CLRAE and dra ted jointlyby the two bodies. The proposed declaration was, however, o a

1. As rom 14 January 1994 the Standing Con erence was trans ormed into theCongress o Local and Regional Authorities o Europe, as a recognition o its polit-ical signi cance.


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rather too general and sweeping character or any rm action to betaken on it.

The new initiative o the CLRAE in 1981 was there ore based on amore fexible approach. But the view was also taken that a merenon-binding declaration o principles could not do justice to theimportance o local autonomy or to the nature o the threats towhich it is exposed. Rather, governments must be asked to enterinto binding commitments. The necessary fexibility to take accounto the di erences between national constitutional arrangementsand administrative traditions was to be built in, not by excessivelydiluting the requirements o the new instruments but by allowinggovernments a degree o choice with regard to the provisions bywhich they would consider themselves bound.

The logical outcome o this approach was the submission to theCommittee o Ministers, in CLRAE Resolution 126 (1981), o a dra tEuropean Charter o Local Sel -Government with the request that itbe adopted with the status o a European convention.

The Committee o Ministers decided to transmit the CLRAEs pro-posals to the Steering Committee or Regional and Municipal Matters(CDRM) with a view to their being discussed at the 5th Con erenceo European Ministers responsible or Local Government (Lugano,5-7 October 1982). In their conclusions, the ministers present atLugano

...consider that this dra t charter constitutes an important step towardsa de nition o the principles o local autonomy, while noting the res-ervations o some ministers about the need or a charter in the ormo a binding convention and about some aspects o the content o the charter;

ask the Committee o Ministers o the Council o Europe to instructthe Steering Committee or Regional and Municipal Matters (CDRM),in contact with the Con erence o Local and Regional Authorities o Europe, to make the necessary changes to the dra t European Chartero Local Sel -Government in accordance with the comments concerning


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the orm and the substance made during the con erence, so that it maybe submitted to them or approval at their next con erence...

The Committee o Ministers so instructed the CDRM, which there-

upon carried out a thorough revision o the dra t charter. In applica-tion o the conclusions o the Lugano Con erence, representatives o the CLRAE participated in the discussions.

The text o the dra t charter as revised by the CDRM was nally sub-mitted to the 6th Con erence o European Ministers responsible orLocal Government, which met in Rome rom 6 to 8 November 1984.A ter examining this text, the ministers expressed their unanimousagreement on the principles contained in it. With regard to the legal

orm which the Charter should take, a majority o ministers expressedthemselves in avour o a convention.

In the light o the opinions o the Consultative Assembly and theRome Ministerial Con erence, the Committee o Ministers there oreadopted the European Charter o Local Sel -Government in the ormo a convention in June 1985. In recognition o the act that the initia-tive or the Charter had originally come rom the Standing Con erence

o Local and Regional Authorities o Europe, it was decided that theconvention should be opened or signature on 15 October 1985 onthe occasion o the CLRAEs 20th Plenary Session.


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General remarks

The purpose o the European Charter o Local Sel -Government is tomake good the lack o common European standards or measuringand sa eguarding the rights o local authorities, which are closest tothe citizen and give him the opportunity o participating e ectivelyin the making o decisions a ecting his everyday environment.

The Charter commits the parties to applying basic rules guaran-teeing the political, administrative and nancial independence o local authorities. It is thus a demonstration, at European level, o thepolitical will to give substance at all levels o territorial administra-tion to the principles de ended since its oundation by the Councilo Europe, which considers its unction to be the keeping o Europesdemocratic conscience and the de ence o human rights in the wid-est sense. Indeed, it embodies the conviction that the degree o sel -government enjoyed by local authorities may be regarded as atouchstone o genuine democracy.

The Charter is in three parts. The rst part contains the substantiveprovisions setting out the principles o local sel -government. It speci-

es the need or a constitutional and legal oundation or local sel -government, de nes the concept and establishes principles govern-ing the nature and scope o local authorities powers. Further articlesare concerned with protecting the boundaries o local authorities,ensuring that they have autonomy as regards their administrativestructures and access to competent sta and de ning conditions orthe holding o local elective o ce. Two major articles aim at limitingadministrative supervision o the activities o local authorities andensuring that they have adequate nancial resources at their disposalon terms which do not impair their basic autonomy. The remainingprovisions in this part cover the right o local authorities to co-operate


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and orm associations and the protection o local sel -governmentby the right o recourse to a judicial remedy.

Part II contains miscellaneous provisions relating to the scope o theundertakings entered into by the parties. In accordance with theintention o securing a realistic balance between the sa eguardingo essential principles and the fexibility necessary to take accounto the legal and institutional peculiarities o the various memberstates, it permits the parties speci cally to exclude certain provi-sions o the Charter rom those by which they consider themselvesbound. It thus represents a compromise between, on the one hand,acknowledgement o the act that local sel -government a ects thestructure and organisation o the state itsel , which is a basic concerno government, and, on the other hand, the objective o protectinga minimum o basic principles which any democratic system o localgovernment should respect. Moreover, the commitments o the par-ties can subsequently be added to, whenever the relevant obstacleshave been removed.

Potentially, the principles o local sel -government laid down in the

Charter apply to all the levels or categories o local authorities ineach member state, and indeed also, mutatis mutandis , to territorialauthorities at regional level. However, to allow or special cases, theparties are permitted to exclude certain categories o authorities

rom the scope o the Charter.

The Charter does not provide or an institutionalised system o con-trol o its application, beyond a requirement or parties to supply allrelevant in ormation concerning legislative or other measures taken

or the purpose o complying with the Charter. Consideration wasindeed given to setting up an international system o supervisionanalogous to that o the European Social Charter. However, it was

elt possible to dispense with complex supervisory machinery, giventhat the presence within the Council o Europe o the CLRAE withdirect access to the Committee o Ministers would ensure adequatepolitical control o compliance by the parties with the requirementso the Charter.


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The last part o the text contains nal provisions consistent with thosecustomarily used in conventions drawn up under the auspices o theCouncil o Europe.

The European Charter o Local Sel -Government is the rst multilat-eral legal instrument to de ne and sa eguard the principles o localautonomy, one o the pillars o democracy which it is the Council o Europes unction to de end and develop. It may be hoped that it willthus make a substantial contribution to the protection and enhance-ment o common European values.


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Commentary on the Charters provisionsPreamble

The preamble provides an opportunity or a statement o the basicpremises underlying the Charter. These are, essentially:

the vital contribution o local sel -government to democracy,e ective administration and the decentralisation o power;

the important role o local authorities in the construction o Europe;

the need or local authorities to be democratically constitutedand enjoy wide-ranging autonomy.

Article 1

Article 1 expresses the general undertaking o the parties to observethe principles o local sel -government laid down in Part I o theCharter (Articles 2-11), to the extent prescribed by Article 12.

Article 2

This article provides that the principle o local sel -governmentshould be enshrined in written law.

In view o the importance o the principle, it is urther desirablethat this should be achieved by including it in the undamental textgoverning the organisation o the state, that is to say, the constitu-tion. However, it was recognised that, in those countries in whichthe procedure or amending the constitution required assent by aspecial majority o the legislature or the assent o the whole popu-lation expressed in a re erendum, it might not be possible to give acommitment to enshrine the principle o local sel -government in theconstitution. It was also recognised that countries not having a writ-ten constitution but a constitution to be ound in various documents


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and sources might encounter speci c di culties or even be unableto make that commitment.

Account must also be taken o the act that, in ederal countries, localgovernment may be regulated by the ederated states rather than bythe central ederal government. For the ederal states, this Charter inno way a ects the division o powers and responsibilities betweenthe ederal state and the ederated states.

Article 3

This article lays down the essential characteristics o local sel -

government as they are to be understood or the purposes o theCharter.

Paragraph 1

The notion o ability expresses the idea that the legal right to regu-late and manage certain public a airs must be accompanied by themeans o doing so e ectively. The inclusion o the phrase within thelimits o the law recognises the act that this right and ability maybe de ned more closely by legislation.

Under their own responsibility stresses that local authorities shouldnot be limited to merely acting as agents o higher authorities.

It is not possible to de ne precisely what a airs local authoritiesshould be entitled to regulate and manage. Expressions such aslocal a airs and own a airs were rejected as too vague and di -

cult to interpret. The traditions o member states as to the a airswhich are regarded as belonging to the preserve o local authoritiesdi er greatly. In reality most a airs have both local and nationalimplications and responsibility or them may vary between countriesand over time, and may even be shared between di erent levels o government. To limit local authorities to matters which do not havewider implications would risk relegating them to a marginal role.On the other hand, it is accepted that countries will wish to reservecertain unctions, such as national de ence, or central government.


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The intention o the Charter is that local authorities should have abroad range o responsibilities which are capable o being carriedout at local level. The de nition o these responsibilities is the subject

o Article 4.Paragraph 2

The rights o sel -government must be exercised by democrat icallyconstituted authorities. This principle is in accordance with theimport ance attached by the Council o Europe to democratic ormso government.

This right normally entails a representative assembly with or withoutexecutive bodies subordinate thereto, but allowance is also made

or the possibility o direct democracy where this is provided or bystatute.

Article 4

As was explained in the comments on Article 3, it is not possible, norwould it be appropriate to attempt, to enumerate exhaustively the

powers and responsibilities which should appertain to local govern-ment throughout Europe. However, this article lays down the generalprinciples on which the responsibilities o local authorities and thenature o their powers should be based.

Paragraph 1

Since the nature o local authorities responsibilities is undamental tothe reality o local sel -government, it is in the interests o both clarityand legal certainty that basic responsibilities should not be assignedto them on an ad hoc basis but should be su ciently rooted in legisla-tion. Normally, responsibilities should be con erred by the constitu-tion or an Act o Parliament. However, notwithstanding the use o theword statute in this paragraph, it is acknowledged that in certaincountries some delegation by parliament o power to assign speci cresponsibilities, particularly in respect o details or o matters requir-ing implementation as a result o European Community directives,


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may be desirable or the sake o e ciency, provided parliamentretains adequate powers o supervision over the use o delegatedpowers. Furthermore, an exception applies in the case o member

states o the European Community inso ar as Community Regulations(which under Article 189 o the Treaty o Rome are directly applic-able) may stipulate application o a speci c measure at a given levelo administration.

Paragraph 2

In addition to the responsibilities assigned by legislation to speci clevels o authority, other needs or possibilities or action by publicbodies may present themselves. Where these elds o action havelocal implications and are not excluded rom the general competenceobtaining in most member states, it is important to the conception o local authorities as political entities acting in their own right to pro-mote the general wel are o their inhabitants that they have the rightto exercise their initiative in these matters. The general rules underwhich they may act in such cases may, however, be laid down by law.In certain member states, however, local authorities must be able toadduce statutory authority or their actions. A wide discretion beyondspeci c responsibilities can be given to local authorities under such asystem, whose existence is to that extent comprehended by Article 4,paragraph 2.

Paragraph 3

This paragraph articulates the general principle that the exercise o public responsibilities should be decentralised. This principle hasbeen stated on a number o occasions within the context o theCouncil o Europe and in particular in the Conclusions o the LisbonCon erence o European Ministers responsible or Local Governmentin 1977. This implies that, unless the size or nature o a task is suchthat it requires to be treated within a larger territorial area or thereare overriding considerations o e ciency or economy, it shouldgenerally be entrusted to the most local level o government.


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This clause does not imply, however, a requirement systematicallyto decentralise unctions to such local authorities which, because o their nature and size, can only accomplish limited tasks.

Paragraph 4

This paragraph is concerned with the problem o overlapping respon-sibilities. In the interest o clarity and or the sake o avoiding anytendency towards a progressive dilution o responsibility, powersshould normally be ull and exclusive. However, complementaryaction by di erent levels o authority is required in certain elds and itis important that in these cases the intervention by central or regionalauthorities takes place in accordance with clear legislative provisions.

Paragraph 5

The administrative structures o local authorities and their amiliaritywith local conditions may make them appropriate bodies to imple-ment certain unctions, the ultimate responsibility or which alls tosupra-local authorities. It is important, however, in order that recourse

to such delegation does not excessively impinge on the sphere o independent authority o the local level, that the latter should, whenpossible, be allowed to take account o local circumstances in exercis-ing delegated powers. It is recognised, however, that in respect o certain unctions, or example the issue o identity papers, the need

or uni orm regulations may leave no scope or local discretion.

Paragraph 6

Whilst paragraphs 1 to 5 deal with matters which come within thescope o local authorities, paragraph 6 is concerned both with matterscoming within the scope o such authorities and with matters whichare outside their scope but by which they are particularly a ected. The text provides that the manner and timing o consultation shouldbe such that the local authorities have a real possibility to exerciseinfuence, whilst conceding that exceptional circumstances may over-ride the consultation requirement particularly in cases o urgency.


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Such consultation should take place directly with the authority orauthorities concerned or indirectly through the medium o theirassociations where several authorities are concerned.

Article 5

Proposals or changes to its boundaries, o which amalgamations withother authorities are extreme cases, are obviously o undamentalimportance to a local authority and the citizens whom it serves. Whilstin most countries it is regarded as unrealistic to expect the local com-munity to have power to veto such changes, prior consultation o it,either directly or indirectly, is essential. Re erendums will possiblyprovide an appropriate procedure or such consultations but thereis no statutory provision or them in a number o countries. Wherestatutory provisions do not make recourse to a re erendum manda-tory, other orms o consultation may be exercised.

Article 6

Paragraph 1

The text o this paragraph deals not with the general constitution o the local authority and its council but rather with the way in which itsadministrative services are organised. Whilst central or regional lawsmay lay down certain general principles or this organisation, localauthorities must be able to order their own administrative structuresto take account o local circumstances and administrative e ciency.Limited speci c requirements in central or regional laws concerning,

or example, the establishment o certain committees or the creation

o certain administrative posts are acceptable but these should notbe so widespread as to impose a rigid organisational structure.

Paragraph 2

In addition to the appropriate management structures, it is essentialto the e ciency and e ectiveness o a local authority that it is ableto recruit and maintain a sta whose quality corresponds to theauthoritys responsibilities. This clearly depends to a large degree on


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the local authoritys ability to o er su ciently avourable conditionso service.

Article 7 This article aims at ensuring both that elected representatives maynot be prevented by the action o a third party rom carrying outtheir unctions and that some categories o persons may not beprevented by purely material considerations rom standing or o ce. The mater ial considerations include appropriate nancial compen-sation or expenses fowing rom the exercise o unctions and, asappropriate, compensation or loss o earnings and, particularly inthe case o councillors elected to ull-time executive responsibilities,remuner ation and corresponding social wel are protection. In thespirit o this article, it would also be reasonable to expect provisionto be made or the reintegration o those taking on a ull-time postinto normal working li e at the end o their term o o ce.

Paragraph 3

This paragraph provides that disquali cation rom the holding o localelective o ce should only be based on objective legal criteria andnot on ad hoc decisions. Normally this means that cases o incompati-bility will be laid down by statute. However, cases have been noted o

rmly entrenched, unwritten legal principles which seem to provideadequate guarantees.

Article 8

This article deals with supervision o local authorities activitiesby other levels o government. It is not concerned with enablingindividu als to bring court actions against local authorities nor is itconcerned with the appointment and activities o an ombudsmanor other o cial body having an investigatory role. The provisionsare above all relevant to the philosophy o supervision normallyassociated with the contrles de tutelle which have long been the trad-ition in a number o countries. They thus concern such practices as


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requirements o prior authorisation to act or o con rmation or actsto take e ect, power to annul a local authoritys decisions, account-ing controls, etc.

Paragraph 1

Paragraph 1 provides that there should be an adequate legislativebasis or supervision and thus rules out ad hoc supervisory procedures.

Paragraph 2

Administrative supervision should normally be con ned to the ques-tion o the legality o local authority action and not its expediency.One particular but not the sole exception is made in the case o dele-gated tasks, where the authority delegating its powers may wish toexercise some supervision over the way in which the task is carriedout. This should not, however, result in preventing the local author-ity rom exercising a certain discretion as provided or in Article 4,paragraph 5.

Paragraph 3

The text draws its inspiration rom the principle o proportionality,whereby the controlling authority, in exercising its prerogatives, isobliged to use the method which a ects local autonomy the leastwhilst at the same time achieving the desired result.

Since access to judicial remedies against the improper exercise o supervision and control is covered by Article 11, precise provisionson the conditions and manner o intervention in speci c situationshave not been elt to be essential.

Article 9

The legal authority to per orm certain unctions is meaningless i localauthorities are deprived o the nancial resources to carry them out.


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Paragraph 1

This paragraph seeks to ensure that local authorities shall not bedeprived o their reedom to determine expenditure priorities.

Paragraph 2

The principle in question is that there should be an adequate rela-tionship between the nancial resources available to a local authorityand the tasks it per orms. This relationship is particularly strong or

unctions which have been speci cally assigned to it.

Paragraph 3 The exercise o a political choice in weighing the bene t o servicesprovided against the cost to the local taxpayer or the user is a un-damental duty o local elected representatives. It is accepted thatcentral or regional statutes may set overall limits to local authoritiespowers o taxation; however, they must not prevent the e ective

unctioning o the process o local accountability.

Paragraph 4

Certain taxes or sources o local authority nance are, by their natureor or practical reasons, relatively unresponsive to the e ects o infation and other economic actors. Excessive reliance on suchtaxes or sources can bring local authorities into di culties since thecosts o providing services are directly infuenced by the evolutiono economic actors. It is recognised, however, that even in the case

o relatively dynamic sources o revenue there can be no automaticlink between costs and resource movements.

Paragraph 6

Where redistributed resources are allocated according to speci ccriteria set out in legislation, the provisions o this paragraph will bemet i the local authorities are consulted during the preparation o the relevant legislation.


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Paragraph 7

Block grants or even sector-speci c grants are pre erable, rom thepoint o view o local authority reedom o action, to grants ear-marked or speci c projects. It would be unrealistic to expect allspeci c project grants to be replaced by general grants, particularly

or major capital investments, but excessive recourse to such grantswill severely restrict a local authoritys reedom to exercise its dis-cretion with regard to expenditure priorities. However, the part o total resources represented by grants varies considerably betweencountries, and a higher ratio o project-speci c grants to more gen-eral grants may be considered reasonable where grants as a wholerepresent a relatively insigni cant proportion o total revenue.

The second sentence o Article 9, paragraph 7, seeks to ensure thata grant or a speci c purpose does not undermine a local authoritys

reedom to exercise discretion within its own sphere o competence.

Paragraph 8

It is important or local authorities that they have access to loannance or capital investment. The possible sources o such nance

will, however, inevitably depend on the structure o each coun-trys capital markets; procedures and conditions or access to thesesources may be laid down by legislation.

Article 10

Paragraph 1 This paragraph covers co-operation between local authorities on a

unctional basis with a view in particular to seeking greater e ciencythrough joint projects or carrying out tasks which are beyond thecapacity o a single authority. Such co-operation may take the ormo the creation o consortia or ederations o authorities, althougha legal ramework or the creation o such bodies may be laid downby legislation.


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Paragraph 2

Paragraph 2 is concerned with associations whose objectives aremuch more general than the unctional considerations o paragraph 1and which normally seek to represent all local authorities o a particu-lar kind or kinds on a regional or national basis. The right to belongto associations o this type does not however imply central govern-ment recognition o any individual association as a valid interlocutor.

In a Council o Europe instrument o this type, it is normal that theright to belong to associations at national level should be accom-panied by a parallel right to belong to international associations,

a number o which are active in the promotion o European unityalong lines which accord with the aims laid down in the statute o the Council o Europe.

However, Article 10.2 leaves to individual member states the choice o means, legislative or otherwise, whereby the principle is given e ect.

Paragraph 3

Direct co-operation with individual local authorities o other coun-tries should also be permitted, although the manner o such co-operation must respect such legal rules as may exist in each countryand take place within the ramework o the powers o the authoritiesin question.

The provisions o the European Outline Convention on Trans rontierCo-operation between Territorial Communities or Authorities(21 May 1980, ETS No. 106) are particularly relevant in this respect,although some orms o co-operation need not be restricted to ron-tier areas.

Article 11

By recourse to a judicial remedy is meant access by a local authorityto:

a . a properly constituted court o law, or


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b. an equivalent, independent, statutory body having the powerto rule and advise on the ruling respectively, as to whether anyaction, omission, decision or other administrative act is in accord-

ance with the law.An instance has been noted in one country where, although admin-istrative decisions are not subject to an ordinary appeal to a court,it is possible to have recourse to an extraordinary remedy called anapplication or reopening o proceedings. This judicial remedy, which is available i the decision is based on a mani estly incorrect applica-tion o the law, is in accordance with the requirements o this article.

Article 12

The ormulation o the principles o local sel -government laid downin Part I o the Charter had to try to reconcile the wide diversity o legal systems and local government structures existing in the mem-ber states o the Council o Europe. Nevertheless, it is recognisedthat individual governments may still ace constitutional or practicalimpediments to subscribing to particular provisions o the Charter.

This article accordingly adopts the compulsory nucleus systemrst established by the European Social Charter, by providing that

the Parties to the European Charter o Local Sel -Government arerequired to subscribe to at least twenty o the thirty paragraphs o Part I o the Charter, including at least ten rom a nucleus o ourteenbasic principles. However, as the ultimate aim remains compliancewith all the provisions o the Charter, the Parties are speci cally

en abled to add to their undertakings as and when this becomespossible.

Article 13

In principle, the requirements set orth in Part I o the Charter relateto all categories or levels o local authority in each member state. They potentially apply also to regional authorities where these exist.However, the special legal orm or constitutional status o certain


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regions (in particular the member states o ederations) may pre-clude their being made subject to the same requirements as localauthorities. Furthermore, in one or two member states there exists

a category o local authorities which, because o their small size,have only minor or consultative unctions. To take account o suchexceptional cases, Article 13 permits the Parties to exclude certaincategories o authorities rom the scope o the Charter.

Article 14

This article is intended to acilitate the monitoring o the applicationo the Charter, by the individual Parties, by creating an obligation or

the latter to supply relevant in ormation to the Secretary General o the Council o Europe. Especially in the absence o a speci c bodyresponsible or supervising the implementation o the Charter, it isparticularly important that in ormation should be available to theSecretary General concerning any changes o legislation or othermeasures which have a signi cant impact on local autonomy asde ned in the Charter.

Articles 15 to 18 The nal clauses contained in Articles 15 to 18 are based on the model

nal clauses or conventions and agreements concluded within theCouncil o Europe.


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