E Book Lok Sam U Europi 1

Colección
ADMINISTRACIÓN LOCAL
Y AUTONÓMICA
Local government
in the Member States
of the European Union:
a comparative legal perspective
Angel-Manuel Moreno (editor)
INAP
INSTITUTO NACIONAL DE ADMINISTRACIÓN PÚBLICA
NATIONAL INSTITUTE OF PUBLIC ADMINISTRATION, SPAIN
LOCAL GOVERNMENT IN THE MEMBER STATES
OF THE EUROPEAN UNION:
A COMPARATIVE LEGAL PERSPECTIVE
LOCAL GOVERNMENT IN THE MEMBER STATES
OF THE EUROPEAN UNION:
A COMPARATIVE LEGAL PERSPECTIVE
Angel-Manuel Moreno
(editor)
NATIONAL INSTITUTE OF PUBLIC ADMINISTRATION, SPAIN

MADRID, 2012
Colección: ADMINISTRACIÓN LOCAL Y AUTONÓMICA
FICHA CATALOGRÁFICA DEL CENTRO

DE PUBLICACIONES DEL INAP
LOCAL government in the member states of the European Union [Texto
impreso] : a comparative legal perspective / Angel-Manuel Moreno (editor). –
1ª ed. – Madrid : Instituto Nacional de Administración Pública, 2012. – 683 p. :
gráf. ; 24 cm. – (Administración Local y Autonómica)
Incluye notas y referencias bibliográficas
ISBN 978-84-7351-417-0. – NIPO 852-11-030-4
1. Administración local-Países de la Unión Europea. I. Instituto Nacional
de Administración Pública (España). II. Moreno Molina, Ángel Manuel, ed. lit.
III. Serie
352/353(4-672 UE)
Primera edición: Enero, 2012
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TABLE OF CONTENTS
List of Authors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Foreword, by Angel-Manuel Moreno . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Chapter 1
Local Government in Austria, by Anna Gamper . . . . . . . . . . . . . . . . . 23
Chapter 2
Local Government in Belgium, by Michel Bouvier . . . . . . . . . . . . . . . 45
Chapter 3
Local Government in Bulgaria, by Alexander Vodenicharov . . . . . . . 69
Chapter 4
Local Government in Cyprus, by George Coucounis . . . . . . . . . . . . . 91
Chapter 5
Local Government in the Czech Republic, by Stanislav Kadečka . . . 111
Chapter 6
Local Government in Denmark, by Emil Greve . . . . . . . . . . . . . . . . . 135
Chapter 7
Local Government in Estonia, by Sulev Mäeltsemees . . . . . . . . . . . . . 157
Chapter 8
Local Government in Finland, by Olli Mäenpää . . . . . . . . . . . . . . . . . 185
Chapter 9
Local Government in France, by Robert Hertzog . . . . . . . . . . . . . . . . 203
Chapter 10
Local Government in Germany, by Dian Schefold . . . . . . . . . . . . . . . 233
Chapter 11
Local Government in Greece, by Nikolaos-Kmoninos Hlepas . . . . . . 257
7
table of contents
Chapter 12
Local Government in Hungary, by Zoltán Szente . . . . . . . . . . . . . . . . 283
Chapter 13
Local Government in Ireland, by Yvonne Scannell . . . . . . . . . . . . . . . 309
Chapter 14
Local Government in Italy, by Luciano Vandelli . . . . . . . . . . . . . . . . 339
Chapter 15
Local Government in Latvia, by Inga Vilka . . . . . . . . . . . . . . . . . . . . 365
Chapter 16
Local Government in Lithuania, by Diana Šėaparnienė and Aiste La-
zauskienė . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389
Chapter 17
Local Government in Luxembourg, by Jean Mathias Goerens . . . . . 411
Chapter 18
Local Government in Malta, by Kevin Aquilina and Isabelle Calleja . . 435
Chapter 19
Local Government in the Netherlands, by Ine Van Haaren-Dresens . 459
Chapter 20
Local Government in Poland, by Michał Kulesza and Dawid Sześciło . . 485
Chapter 21
Local Government in Portugal, by Pedro Costa Gonçalves and Ana
Raquel Moniz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 505
Chapter 22
Local Government in Romania, by Simina Tanasescu . . . . . . . . . . . . 533
Chapter 23
Local Government in Slovakia, by Milan Buček and Juraj Nemec . . . 555
Chapter 24
Local Government in Slovenia, by Franc Grad . . . . . . . . . . . . . . . . . 577
Chapter 25
Local Government in Spain, by Angel-Manuel Moreno . . . . . . . . . . . 599
Chapter 26
Local Government in Sweden, by Tom Madell . . . . . . . . . . . . . . . . . . 637
Chapter 27
Local Government in the UK, by Chris Himsworth . . . . . . . . . . . . . . 663
8
LIST OF AUTHORS
(by alphabetical order of their countries)
AUSTRIA: Anna GAMPER, PhD, is Full Professor at the Institut für

öffentliches Recht, Staats- und Verwaltungslehre at the University of Innsbruck
Law School and a full member of the Group of experts on the European Charter
of Local Self-Government (hereinafter, «ECLSG») of the Council of Europe.
Her fields of research include Austrian and comparative constitutional law,
general theory of the State and the Constitution as well as federalism and re-
gionalism.
BELGIUM: Jacques BOUVIER is the Local Secretary of the Municipality
of Schaerbeek and President of the French-speaking association of Administra-
tive Sciences (Association Francophone des Sciences Administratives). He is
also in charge of the training programs at the Regional School of Public Admin-
istration (Ecole Régionale d’Administration Publique) in Brussels.
BULGARIA: Alexander VODENICHAROV, J. S. D., is professor of Ad-
ministrative and Municipal law at the New Bulgarian University of Sofia. He is
the chairman of the Council of juridical science at the Higher Attestation Com-
mission, Council of Ministers of the Republic of Bulgaria; full member of the
Group of experts on the ECLSG of the Council of Europe; member of the Su-
preme Juridical Council of Bulgaria (2002-2007); former Dean of the Law
School, South-Western University. He has written several books on Adminis-
trative and Municipal Law.
CYPRUS: George COUCOUNIS studied law at the University of Thessa-
loniki (Greece) and carried out postgraduate studies at the University College
London. He is a lawyer and legal consultant for various municipalities, com-
munity councils and other authorities in Cyprus. He is a member of the Cyprus
Bar Association and substitute member at the Group of experts on the ECLSG.
Former Director of the Cyprus Petroleum Refinery.
CZECH REPUBLIC: Stanislav KADEČKA, Ph.D., is professor of Admin-
istrative Law at Masaryk University Law School (Brno), where he is since 2010
the head of the Department of Administrative Studies and Administrative Law.
9
list of authors
He is, i.a., the vice chairman of the Public Law task group for the Legislation
Council of the Czech Government and a member of the legislative commission
of the Presidency of the Union of Cities and Municipalities of the Czech Re-
public. He has authored and co-authored several books and articles in the field
of administrative law, and has participated in significant international confer-
ences in that field.
DENMARK: Emil GREVE is PhD fellow at Aarhus University School of
Law, department of Public Law and International Law. Mr. Greve is currently
working on a thesis regarding the Danish Security and Intelligence Service.
Apart from researching, he has taught undergraduates at Aarhus University in
the discipline of case administration in the public authorities. He also provides
contributions on subjects like Human Rights, Freedom of Speech and Legal
Issues regarding Teenagers.
ESTONIA: Sulev MÄELTSEMEES is Professor and Chair of Local Self-
Government and Regional Policy (since 1997); Dean of the Faculty of Social
Sciences of Tallinn University of Technology (since 2004). Former Chairman
of the Tallinn City Council (1992-3), and Rector of the Estonian Institute of
Public Management (1993-7). Since 1998, Dr. Mäeltsemees is a full member of
the Group of experts on the ECLSG. He has also a long experience as legisla-
tion drafter on local self-government and regional management, which include,
i.a., the chapter on local self-government in the Estonian Constitution and vari-
ous other Legal Acts.
FINLAND: Dr. Olli MÄENPÄÄ has been professor of Administrative Law
at the University of Turku from 1982 to 1992 and has held the chair in the Uni-
versity of Helsinki since 1992. Former Dean of the Law Faculty (1998-2003),
he has served as a judge in the Supreme Administrative Court (1994 and 2006),
as Chair of the Council for Mass Media (1999-2003) and of several government
committees. His publications include works in judicial procedure in administra-
tive courts and European administrative law, among other fields.
FRANCE: Robert HERTZOG, doctor in law, is emeritus Professor of pub-
lic law at the University of Strasbourg, and the President of the French Society
of Public Finances; deputy city mayor for 19 years in the urban community of
Strasbourg; expert on local self-government with several international organi-
zations; professor at the ENA; Chairman for 14 years of the Council of INET
(national school for local government high ranking officials); member of differ-
ent national committees on University and Public administration. Research and
publication focus on taxes, public finances and government.
GERMANY: Dian SCHEFOLD, Dr. jur. (Basel 1961), Habilitation (Berlin
1970), 1970-1980 Professor of Public Law, Free University of Berlin (West),
1980-2001 Professor of Public Law, University of Bremen (Germany), Visiting
Professor in many Italian universities. Member and vice-president of the Group
of experts on the ECLSG of the Council of Europe (2001-2011).
10
list of authors
GREECE: Nikolaos-Komninos HLEPAS, Grad. in Law (Athens), PhD

(Bremen), is associate Professor of Regional Government and Self-Government
at the National and Kapodistrian University of Athens. His main teaching and
research topics are: Regional Administration and Local Self Government, Public
Law, Environmental Law and Municipal Law. He has been Deputy Chair of the
Committee that drafted the law on the «Kallikrates» Reform project. Chairman
of the National School of Public Administration and Local Government, in Ath-
ens (since 2010). Full member of the Group of experts on the ECLSG.
HUNGARY: Zoltán SZENTE, Dr. Iur, PhD, is Full Professor at the Széche-
nyi István University of Győr Faculty of Law, Department of Constitutional
Law and Political Science and was a senior research fellow of the Hungarian
Institute of Public Administration (1990-2007). His main fields of interest are:
European constitutional history; comparative constitutional law, parliamentary
law and central-local government relations. He was written more than one hun-
dred scientific publications in several languages. Full member of the Group of
experts on the ECLSG.
IRELAND: Yvonne SCANNELL, M.A., LL.M.(Cantab.) Ph.D., LL.D.(h.c.)
teaches Irish and EU Environmental Law and Regulatory Law in the Law
School, Trinity College, Dublin, Ireland and practices Environmental Law with
Arthur Cox, Ireland’s leading environmental law firm. She has published seven
books and numerous articles on Environmental and Land Use law, including
the leading Irish environmental textbook. Her current research interests in-
clude, i.a., land use planning, habitats regulation and reforms of environmental
regulatory systems.
ITALY: Luciano VANDELLI, PhD, is full professor of Administrative
Law and Local Government at Bolonia University. Director of SPISA (School
of Post-Graduate Studies on Public Administration), 1997-2000. Former Pro-
vincial Vice-President (May 1995-September 1996), Councillor for Institution-
al Affairs in the municipality of Bologna (February 1993-May 1995) and Coun-
cillor on Administrative and Institutional innovation and Local governments of
the Region Emilia-Romagna (2000-2005). He has published extensively on
many Public Law fields, such as local and regional government and decentrali-
sation.
LATVIA: Inga VILKA, Dr.oec., is Associate Professor at the University of
Latvia’s Faculty of Economics and Management, Public Administration De-
partment. Her areas of expertise are local government activities and finances,
regional development and performance measurement of public sector. Substi-
tute member of the Group of experts on the ECLSG.
LITHUANIA: Diana ŠAPARNIENĖ is Associate professor and Head of
the Public Administration Department of Šiauliai University, member of the
Group of experts of the ECLSG. Dr. Aistė LAZAUSKIENĖ is Associate Pro-
fessor at the Department of Public Administration of Siauliai University. She
also teaches Local Government at Vytantas Magnus University.
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list of authors
LUXEMBOURG: Jean-Mathias GOERENS, PhD in Law, is the Honorary

Deputy-President of the Administrative Court and a former Judge of the Con-
stitutional Court of Luxembourg; he is also a former First Government Coun-
cillor at the Ministry of the Interior and a former Professor at the University of
Luxembourg and at the National Institute of Administrative Training.
MALTA: Kevin AQUILINA, Ph.D.(Law) is Professor of Law, Dean of the
Faculty of Laws of the University of Malta, and Head of the Department of
Media, Communications and Technology Law of the same University. He is
author of several books, articles and papers published in edited books. He spe-
cialises on Local Government Law, Constitutional Law, Administrative Law,
Public International Law, Media Law and Environmental Law. Isabelle
CALLEJA, B.A., MSc, PhD (politics) is the head of the Department of Inter-
national Relations at the University of Malta where she lectures, i.a., on Inter-
national Politics, politics and governance, political parties, democratization
studies in the Southern Europe and North Africa, and EU politics.
NETHERLANDS: Ine VAN HAAREN-DRESENS is Assistant professor
in Constitutional and administrative law at the Law School at the Dutch Open
University in Heerlen. She specialises and publishes about Law of decentral-
ized authorities, Legislation and in Human rights. Full member of the Group of
experts on the ECLSG of the Council of Europe.
POLAND: Michał KULESZA is Professor of Administrative Law and Pub-
lic Administration at the University of Warsaw, Faculty of Law and Adminis-
tration, Public Administration Chair. DAWID SZEŚCIŁO, is Ph.D. candidate
at the University of Warsaw, Faculty of Law and Administration, Public Ad-
ministration Chair.
PORTUGAL: Pedro Costa GONÇALVES (Dr. iur.) is Professor at the Fac-
ulty of Law of the University of Coimbra; Executive Director of CEDIPRE
(Centre for Public Law and Regulation Studies) and a practicing Lawyer. He is
the author of an extended number of books and publications on, i.a., Public
Law, Administrative Law, Public Regulation, and Public Contracts Law and
the Director of two leading Portuguese Law Journals. Ana Raquel MONIZ
(Mag. iur.) is Assistant Professor at the Faculty of Law of the University of
Coimbra. She researches at the CEDIPRE on Constitutional and Administrative
Law, with a special emphasis on public goods and administrative rulemaking
power.
ROMANIA: Simina TANASESCU, PhD, is Professor of Public Law at the
University of Bucharest, where she teaches Constitutional Law, EU Law and Lo-
cal government. She is the Romanian representative at the EU Agency for Human
Rights (Vienna), a member of the Group of experts on the ECLSG, and of the
Executive Committee of the International Association of Constitutional Law.
SLOVAKIA: Milan BUČEK, DrCs. is Professor of economic science at the
University of Bratislava, and the head of the department of Public Administra-
12
list of authors
tion and Regional Development. In 1991, he founded the Institute of Public

Administration and Regional Development. He is author or co-author of 10
books, 53 scientific studies, 15 instructional texts for the university level and
several dozens articles. Former Vice-Minister of Economic Strategy, responsi-
ble for Regional Policy. Juraj NEMEC, PhD, is professor of public finance and
public management at the Faculty of Economics, Matej Bel University in Ban-
ska Bystrica, Slovakia. He is also a visiting professor at the Masaryk Univer-
sity Brno, Czech Republic and at the University of Bath, UK.
SLOVENIA: Franc GRAD, JD, LLM, PhD is professor at the Faculty of Law
of Ljubljana University (from 1984) where he teaches, i.a., Constitutional Law,
Electoral Law, Parliamentary Law and Local Government, fields in which he has
published extensively. Former legal adviser at the Slovene Parliament and Slov-
ene Government and former adviser for constitutional affairs at the Office for
legislation of the Government of Slovenia. Member of the group of experts that
prepared the Draft constitution of Slovenia (1990), and several laws on the State
organisation. Member of the Group of experts on the ECLSG, Council of Europe.
SPAIN: Angel-Manuel MORENO, JD, LLM (Harvard Law School), PhD,
is full professor of Administrative Law at Carlos III University of Madrid and
a former senior civil servant at the State public administration. He has pub-
lished several books and academic contributions in Public law domains (i.a.,
local government law, administrative law, EU Law administrative implementa-
tion, comparative government, chemicals regulation, environmental law). Full
member of the Group of experts on the ECLSG of the Council of Europe.
SWEDEN: Tom MADELL (Juris Dr, LLM) is a Professor of Law at the
Department of Law, Umeå University, Sweden, with a focus on teaching and
research in the twilight zone between private law, public law and competition
law. A member of the Group of experts on the ECLSG of the Council of Europe,
he is currently working on the research project ‘Welcome to the twilight zone’
– between Competition and Solidarity: Consequences of EU Law on Scandina-
vian Welfare States, especially in the Field of Services of General Interest.
UNITED KINGDOM: Chris HIMSWORTH, PhD, is Emeritus Professor
of Administrative Law at the University of Edinburgh (Scotland). Between
1974 and 2011 he taught and researched at the University in many areas of
public law, with a special focus on administrative law, the law of local govern-
ment, and the law of devolution in Scotland and the United Kingdom. Full
member of the Group of experts on the ECLSG, Council of Europe.
13
FOREWORD
The present book seeks to provide a general overview of local government

across the European Union (EU). It does not pretend to perform an in-depth or
comprehensive analysis of all dimensions of local authorities, as such an at-
tempt would entail an encyclopaedic effort. The purpose of this collective book
is more limited and humble: to present the basic and structural lines of local
government, following the conceptual thread of self-government or local au-
tonomy.
Therefore, this book is designed primarily for those who wish to have a clear
and synthetic presentation of the legal scheme governing local government in
the present 27 EU member states. Heavy or too sophisticated dogmatic ques-
tions are intentionally avoided, not only for lack of space, but also because the
purpose of the book is different and it is conceived as a sourcebook rather than
as a treatise.
The perspective of the book is a legal one, although references are made,
where needed, to historical or political factors, which will help the reader in
understanding better the regulations in place within each country. As a matter
of fact, the Law is never an abstract entity, but the concretisation of several
historical, political and sociological elements.
The legal situation of local government in each of the current 27 member
states of the EU is presented in a short, up-to-date and synthetic manner, thus
providing a quick overview of the foremost elements in the legal scheme gov-
erning local authorities across Europe. Moreover, for each country sources of
additional information (specialised bibliography, landmark court cases, useful
internet resources) are provided for the reader who would like to go further in
the study of this exciting subject.
This is a comparative legal analysis whose geographical scope is limited to
the EU. The reason for this selection is two-fold: on the one hand, covering the
whole group of «European» countries (a murky notion anyway) would have
entailed much more time, money and effort for this project. On the other hand,
15
foreword
the member states of the EU form a constitutional-political union in which liter-

ally all major features of the public sector and governmental organisation be-
come more and more intertwined. The fact that the EU is a union of States (eine
Staatverbund, in German terminology) does not mean that the whole integra-
tion process is indifferent to the «lower» layers of territorial government. Quite
the opposite is true: local government plays a significant role within the EU
(e.g., in the implementation of many European legal rules), a structure that
proclaims subsidiarity as one of its key conceptual pillars.
Moreover, the Union projects a long shadow over almost every aspect of the
day-to-day lives of thousands of local authorities around Europe, as legal schol-
ars have already well analysed and documented. Just to mention some of these
repercussions, it is worth noting, to begin with, that local authorities are the real
(and sometimes only) addressees of many European directives and regulations,
in fields such as transport, environmental protection or public procurement,
among others. Second, they have a specific voice in the decision-making pro-
cess of the EU, namely through the Committee of the Regions and through
some European Parliament special committees. Third, local authorities play a
key role in the implementation of several cohesion and structural funds, of
which they are some of the most important recipients.
Finally and most importantly, the deep financial and budgetary crisis that is
sweeping Europe is already triggering dramatic changes in the number, size and
types of local authorities, in a desperate need to control the deficit and provide
more efficient governmental structures. Fusions, mergers and amalgamations
of various sorts, the deepening of inter-municipal cooperation, etc. are in the
front line of political discussions and on the front page of every European
newspaper, on a daily basis. All these elements are now taking place as conse-
quences of the current fate that the EU is currently facing, so the «Brussels
problems», at the end of the day, end up affecting our little villages in the
mountains, or the human and financial resources of our massive city districts.
This is why each chapter includes a specific section aimed at analysing the re-
lationship between the local authorities and the EU.
The reasons behind the publication of this collective book are clear and do
not need justification. Simply, as far as we know, a work of this type does not
yet exist in the comparative bibliography. There are, it is true, collective books
that offer a political science perspective or cross-cutting analysis of local gov-
ernment in some European states. Others perform a study of local government
finance, in a narrow number of countries. But there is no book like this one,
written from a legal perspective and including all the member states of the Un-
ion. I hope that it will be a valuable tool for comparative analysis and first-hand
reference.
This collective book consists of 27 chapters, one for each member State.
Each contribution is not a free exercise, but rather follows fixed items and sub-
jects, so that all the different chapters are homogeneous. In order to ensure com-
16
foreword
parability, all national contributions develop the same structural pattern, and
have the same headings or sections. This has been possible because I asked the
authors to frame their individual chapters around a uniform «table of contents»,
which I circulated and which was overall accepted by them. Of course, they
were free to articulate the content of each heading as they deemed appropriate.
Therefore, all the chapters address the key or essential elements of local
self-government in every country, those legal ingredients that may be identified
as the «core» aspects of local autonomy. Deliberately, and as stated above, the
authors do not analyse sociological issues, or other legal aspects within the lo-
cal government regime which are not connected, in one way or another, with
local autonomy.
Every chapter first presents a brief evolution of local self-government in the
analysed country. This exercise is very important to understand correctly some
historical and cultural patterns. Many sharp differences appear in this field. In
some EU countries, local government is a structural element of the social and
political evolution of the country, while in others this is a brand-new phenom-
enon (like in Malta). As concerns the 20th century, many countries saw local
government reduced or even annihilated by centralists dictatorships (from
Spain to Bulgaria, from Slovak republic to Lithuania). As a rule, nowadays the
existence of local self-government is a common feature of all the member states
of the EU, and it is recognised in the Constitutions of most of these countries,
with the notable and understandable exception of the UK, although the notion
is enshrined in the political culture of the country. Key prospective trends (i.e.,
legislative proposals, reform packages) and hot issues or on-going debates are
also mentioned.
The second section of each chapter endeavors to present in a short and clear
way the «recipients» or «subjective owners» of local autonomy. Which are the
units and levels of local government, which are the names of the local authori-
ties and bodies (first tier, second and third tier, if applicable) in the official/na-
tive language, with an approximate translation in English (towns, cities, prov-
inces, counties, parishes, etc). Here, the reader will be able to see the strong
influence of the French word «commune» in different countries to identify the
basic human settlement, although in this book it has been substituted by the
(more English) word «municipality», which is neutral.
The reader will be able to see the sharp differences existing throughout the
EU in terms of number, size and average population of local authorities. The
extremes are, on the one hand, France (with more than 36,000 municipalities)
and the Nordic and Baltic States (and the UK) on the other. Most authors agree
that the process of amalgamation or fusion of municipalities is far from easy,
and it has failed many times.
Third, each chapter identifies and briefly describes the current, basic legal
framework of local government and local autonomy. In this section, the Euro-
17
foreword
pean Charter of Local Self-Government has become, undoubtedly, the most

important legal rule, with a huge transnational influence. All the EU member
states have ratified the Charter, although some countries have filed «declara-
tions» or statements (as the Charter does not allow, from a technical viewpoint,
«reservations») according to which some of its provisions would not be appli-
cable to some local government bodies. This is usually done for second-tier
local authorities which in many countries (like Spain), do not have an elected
council or assembly. The perception of the legal force and the direct applicabil-
ity of the Charter is also a tricky question, and I invite the reader to find out the
different responses that have been elaborated by the domestic courts in the na-
tional jurisdictions. Other topics that are covered are the structure of the legisla-
tion (unitary/complex/uniform/devolved, etc.) and the specific status of the
capital city, where one exists.
In the fourth section (on the competences, powers and services of local au-
thorities) the book addresses one of the «backbones» of local autonomy. A real
self-government clearly requires that local authorities enjoy a realm of actual
powers, a significant capacity to regulate the well- being of the local commu-
nity. At this point, the reader will be able to discover some basic trends. For
instance, the common duality, in many countries, about «own» and «delegated»
competences (from Spain to the Czech Republic) a key construct that has dra-
matic consequences in terms of financing, inter-governmental control and so
forth. Similarly, some countries have developed interesting doctrines to support
the intervention of local authorities: from the «clause générale de competences»
elaborated by the French Conseil d’Etat to the «institutional guarantee», formu-
lated by the German federal system.
In almost every country, local authorities have the power to expropriate pri-
vate property, they have rulemaking powers (always subordinate to the parlia-
mentary legislation), and they have sanctioning powers over individuals and
firms. In many jurisdictions, there are also long lists of local, compulsory or «vol-
untary» (Luxembourg) competences and responsibilities, services and duties.
A look into the basic organisation of local authorities was also necessary,
primarily because this allows us to see that local government, contrary to the
other layers of the governmental machinery, enjoys a direct democratic legiti-
macy. The governing bodies of local authorities, at least the first-tier ones, are
directly elected by the citizens. In all countries, citizens vote for the council,
assembly or deliberative body. In many, they also vote for the mayor. On the
other hand, local autonomy involves, inter alia, the capacity for the local au-
thorities to determine their internal structuring.
Therefore, precise information is provided on the different cogs of the local
organisation. First, the council (its election, number of members, powers, etc).
Then, the executive organ (elected directly –by the citizens– or indirectly –by
the council–, its appointment and dismissal, main powers, etc). Also, inter-
municipal cooperation is analysed: the types, forms and names of the bodies or
18
foreword
structures established for cooperation are presented and discussed. The trend of
inter-municipal is of foremost importance in the current situation, and some
countries (such as France) show an impressive record in this field.
Next, the human resources of local authorities are examined. In some coun-
tries, the different kinds of public employees are considered to be «administra-
tive» civil servants enjoying a special legal status, while in others they are
treated just like any other employees in the private sector. Most countries,
though, combine the two perspectives. As a rule, local authorities have the
power to select and to manage their own human resources. In some countries
(Belgium, Italy, Spain,) there are special types of local employees who are se-
lected or recruited by central/regional governments and who perform (as
«clerks» or «secretaries»), key and exclusive functions in day-to-day local ac-
tivities.
A study like the present one could not omit the analysis of the financial re-
sources of local authorities. If there is an element which provides a real assess-
ment of the actual depth of local autonomy, this is local government finance,
for without financial means the exercise of competences is rendered an illusion.
Thus, the experts present in a concise way how local authorities are funded in
their countries. The basic sources of income are enumerated: taxes and charges
that can be collected by them; transfers from the regional/state government or
from the EU; grants; fines, sale of products or assets, etc. Where possible, these
sources are also quantified or appraised in terms of their sufficiency. Most local
authorities have taxing powers, but, as a rule, they cannot establish taxes freely,
since this is done via a piece of legislation from the state/Land/regional parlia-
ment. In many cases, local authorities may fix the rate of «local taxes», while
in others this is not legally possible. The relative importance of transfers from
regional/Land/state government is also considered. In this area, the result is, at
least, improvable, as in most countries (with the notable exception of the Nor-
dic ones) grants constitute a key or decisive source of income. As long as these
grants are conditioned or «earmarked», this fact signifies an actual reduction of
local autonomy. Unfortunately, the financial health of local authorities is poor
throughout the EU. In many countries, and in spite of prudential rules laid down
in general statutes, local authorities have accumulated an important debt and
are in situations of severe deficits. This could have strong implications for the
short-term survival of some forms of local authorities.
Section eight of each chapter has a look into the property and assets of local
authorities, also an important tool for the carrying out of so many local policies
and services. As a rule, local authorities are entitled to have property. The au-
thors have identified the most usual types of assets and properties of local au-
thorities in their nations. In some countries, local government property is regu-
lated by a special legal regime (along the lines of the «domaine public» in the
French legal tradition) while in others general private or civil law applies, with
some Public-law corrections.
19
foreword
The control and supervision of local authorities’ activities is probably the

very backbone of local autonomy. If local self-government means the capacity
of local authorities to decide free from political intervention of the «higher»
levels of government, any form of «control», «oversight» or «supervision» has
to be carefully analysed. Therefore, each chapter considers what type of control
over the activities of local government bodies can be exercised by regional or
state authorities, and, the crucial point, whether this is solely a control of legal-
ity, or also a control of opportunity (on the merits) or expediency. Many coun-
tries admit, in a more or less concealed way, the control of opportunity by re-
gional or state authorities, especially where «supra-municipal» interests are at
stake. Many different versions may be found throughout the EU, which could
not be fully considered in this short foreword. In some countries, when an upper
level of government challenges a decision, plan, action or any other measure
whatsoever that has been adopted by a local authority, it has the power to sus-
pend the execution and enforcement (that is, to enjoin) such a measure. In some
places, that suspension is automatically granted by the courts, while in others
the central/regional government has a procedural burden to provide evidence
and to convince the court to do so. Also, in some member states it is possible
for an upper level of government to suspend directly the execution or enforce-
ment of a local decision, without the need to seeking judicial review. The role
of courts is duly analysed, and reference is also made to the role of the Ombuds-
man (at the national, regional, or even local level).
In most countries, local autonomy is not simply an abstract construct or a
«desirable» goal, but a clear legal figure with its own means of legal protection.
Consequently, the book also studies this crucial domain. The topics addressed
are the ordinary protection of local autonomy by regular courts (administrative
or civil ones) and, in some countries, even the «constitutional protection»,
which is performed by means of a special appeal before the Constitutional or
Supreme court.
Finally, as this books wishes to concretise its analysis in the member states
of the EU, a special item is devoted to present the relationships between local
government and the EU. By reading those sections, the reader will reach the
conclusion that local authorities and the supranational level of government are
not alien to each other. As stated above, there are «organic», «financial» and
«functional» connections. First, the composition of the EU Committee of the
Regions shows that local governments have a specific voice (albeit a small one)
in the decision-making process of the EU. As the actual composition of the
national delegation in this committee is entirely left to the discretion of the
member states, one can see differences among the various countries as to the
number and importance of local representatives in the said delegations. In some
countries (for instance, Latvia and Luxembourg) all the representatives come
from local government. In any case, the name of this body is somehow mislead-
ing, as it should be renamed as «the committee of regions and local authori-
ties». Second, EU structural funds have played a significant role in local gov-
20
foreword
ernment finances and projects, especially in the «cohesion countries» such as

Spain, Portugal or Ireland, and now in the Eastern and Central European mem-
ber states. Finally, local governments play a prominent role in the actual imple-
mentation of so many directives and other legal rules emanating from the EU,
especially in the environmental sector, as the Irish chapter shows.
The authors of the chapters are highly qualified experts, professors and
practitioners, some of them with practical experience in running local authori-
ties. As anyone will be able to ascertain by reviewing the «list of authors» at the
beginning of the book, the contributors are prominent and authoritative schol-
ars in their countries, and some have even had the opportunity to draft legisla-
tion (including constitutional texts) on matters or local government and decen-
tralisation.
Many authors (myself included) are members of the Group of Independent
Experts on the European Charter of Local Self-Government, established in the
nineties by the Chamber of Local and Regional Authorities of the Council of
Europe. Since its inception, this group has performed a very good job in provid-
ing legal and technical assistance to the different bodies of the Council of Eu-
rope in matters of local government law and democracy. I know the members
from a long time, so attracting some of them to participate in this collective
book (which focuses on a different geographical and political structure than the
Council of Europe) was not too difficult. Some of the other authors were con-
tacted outside the framework of the said group. In general, their reply was also
positive. I am most grateful to all the authors who were willing to participate in
this long-term effort, and who obligingly accepted my comments, require-
ments… and pressures on the deadlines.
This collective work, then, is designed to be used as a handbook or source-
book, by all who wish to have a basic and fresh presentation on local govern-
ment throughout the European Union. I hope that they will find it interesting
and useful, and that it will be the first step into a deeper knowledge of the
changing world of local government.
Angel-Manuel MORENO
Arenas de San Juan (Spain) December 2011
21
Chapter 1:
LOCAL GOVERNMENT IN AUSTRIA
Anna GAMPER
1. BRIEF HISTORICAL EVOLUTION
Since 1849, Austrian municipalities have been recognized legally, including

the legal entrenchment of a certain degree of autonomy even during the monar-
chy.1 The republican Federal Constitutional Act (B-VG),2 enacted in 1920, con-
tained certain principles of local government, but lacked many important provi-
sions that were only inserted into the B-VG as late as 1962 (BGBl 1962/205).
Since that time, several federal constitutional amendments have affected the
municipalities, among them, the possibility to provide instruments of direct
democracy at local level (BGBl 1984/490), to elect mayors directly (BGBl
1996/659), Austrian accession to the EU (BGBl 1994/744), the municipalities’
integration as a third partner (together with the federation and the Länder) in
the arena of fiscal federalism (see below) or inter-municipal cooperation (most
recently, BGBl I 2011/60).
Whereas the classical theory of federalism, at its outset, focused on the rela-
tionship between federation and constituent units («dual system of govern-
ment»), nowadays it is widely acknowledged that local government is a distinc-
tive part of a multi-tier-system,3 even though there are several undeniable
differences between the federal and regional levels, especially, the lack of law-
1
Neuhofer: Gemeinderecht2 (1998) 2 et seq.
2
The Austrian Federal Constitution consists of a main document, i.e. the Federal Constitu-
tional Act (Bundes-Verfassungsgesetz, hereinafter B-VG), but also of a number of additional
federal constitutional acts, single federal constitutional provisions within ordinary federal laws
and several laws dating back to the former Austro-Hungarian monarchy (until 1918), which, in-
cluding certain state treaties, were given the status of federal constitutional law. The number of
these additional sources of constitutional law has been reduced considerably (see BGBl I 2008/2).
3
Paradigmatically, Sec. 40 para. 1 of the Constitution of South Africa: «In the Republic,
government is constituted as national, provincial and local spheres of government which are
distinctive, interdependent and interrelated».
23
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making powers. This changing role of local government in multi-tier systems,

due to increased needs of public services at the level that is closest to the citi-
zens, has received much attention lately.4 According to some authors, a redefi-
nition of the relations between local government and other tiers of government
seems inevitable,5 although this may give rise to tensions, particularly from the
point of view of the regions. Over the last years, Austrian municipalities have
raised several demands in this context with regard to their representation in the
federal second chamber, their general admittance to formal agreements with the
federation and the Länder, and additional financial resources.6 In 2008, a con-
stitutional draft was presented by an expert committee that not only provided a
reform of the federal system, but also of the system of local government.7 Due
to the political refusal by the Länder, however, the reform proposal was not
developed, which meant that the constitutional status quo of local government
in Austria would remain unchanged for the time being.8 In order to facilitate
inter-municipal cooperation, however, a federal constitutional amendment,
proposed by the Federal Council, was passed in 2011 (BGBl I 2011/60). It par-
ticularly enables municipalities to join inter-municipal associations that trans-
gress Land borders, if the concerned Länder formally agree on such cross-bor-
der associations. All inter-municipal associations are required to have
democratic bodies if they perform matters that fall into the autonomous sphere
of municipalities; local matters may be assigned to inter-municipal associations
less restrictedly than before. Moreover, municipalities are allowed to enter into
formal agreements with other municipalities of their own Land (if this is per-
mitted by the respective Land legislation), or even with those of other Länder,
if the concerned Länder conclude a formal agreement regarding this possibility.
2. BASIC FACTS AND FIGURES
According to Art. 2, B-VG, Austria is a federal state that consists of nine

constituent Länder (Burgenland, Carinthia [Kärnten], Lower Austria [Nieder-
österreich], Salzburg, Styria [Steiermark], Tyrol [Tirol], Upper Austria
4
Steytler (ed): The place and role of local government in federal systems (2005); Blinden-
bacher/Pasma(eds): Dialogues on Local Government and Metropolitan Regions in Federal
Countries (2007); Gamper: «Die Stellung der Gemeinden im Vergleich europäischer Bundes-
staaten« in: Europäisches Zentrum für Föderalismus-Forschung Tübingen (ed): Jahrbuch des
Föderalismus 2006 (2006) 66 (77).
5
Steytler, «Introduction», in: Steytler (ed): The place and role of local government in fed-
eral systems (2005) 8; Weber, Bundesstaat 415.
6
Cf. Forderungsprogramm zur Stärkung der Gemeinderechte in der österreichischen Verfas-
sung (22/AVORL-K), http://www.konvent.gv.at/K/DE/AVORL-K/AVORL-K_00022/pmh.shtml.
7
See www.bka.gv.at/site/5732/default.aspx.
8
Bußjäger: «Die Rückkehr zur Normalität – Österreich ein Jahr nach dem Konvent«, in:
Europäisches Zentrum für Föderalismus-Forschung Tübingen (ed), Jahrbuch des Föderalismus
2006 (2006) 370.
24
local government in austria
[Oberösterreich], Vienna [Wien], Vorarlberg). Article 116 B-VG stipulates

that each Land is comprised of municipalities (Gemeinden) and each munici-
pality is both a territorial body of its own, enjoying the right of autonomous
self-government, and recognition as an administrative unit.
The 2,357 Austrian municipalities, most of which are very small (under 10,000
inhabitants), constitute the lowest (third) territorial tier in Austria. Since district
administrative agencies (Bezirksverwaltungsbehörden), which organisationally
are Land agencies but perform both federal and Land tasks and inter-municipal
associations (Gemeindeverbände) are not territorial entities of their own, there is
no other type of territorial entity below the Land tier other than the municipalities.
Municipalities may be subdivided into local districts which are, however, not inde-
pendent entities. Vienna consists of 23 districts whose assemblies are elected and
have some competences of their own. This is due to the exceptional status of Vi-
enna as the capital of Austria and also a Land and a municipality (Art. 108 B-VG).
The Federal Constitution generally does not distinguish between different
kinds of municipalities, and follows the «principle of municipal uniformity»,9
which means that legally, municipalities are regarded as equal, irrespective of
their size, population, and economic situation. Nevertheless, some municipalities
are given a particular status which is determined by the Federal Constitution it-
self. According to Art. 116 para. 3 B-VG, a municipality with at least 20,000 in-
habitants may, if Land interests are not jeopardized, apply for its own statute.
This statute is a specific kind of Land law that requires the approval of the Fed-
eral Government. If within eight weeks, the Federal Government does not inform
the Land Governor of its veto, the statute enters into force. Presently, 15 towns
have statutes of their own, mainly because they are Land capitals or for historic
reasons, but the option is also open to other municipalities if the aforementioned
conditions are met. The difference between «ordinary» municipalities and towns
with their own statute is threefold. Firstly, Art. 116 para. 3 B-VG imposes on the
latter, the obligation to carry out those administrative tasks within their territory
that are usually performed by district administrative agencies. Secondly, the Fed-
eral Constitution uses slightly different terms when speaking of certain local au-
thorities, depending on whether they are «ordinary» municipalities, towns (which
is just a term used for municipalities with less than 10,000 inhabitants, with no
legal distinction) or towns with their own statute (there are 15 of them, including
Vienna and all Land capitals as well as some smaller cities that have a statute for
historical reasons).10 Thirdly, according to Art. 119a para. 5 B-VG, federal or
Land legislation may stipulate that a complaint against an administrative ruling
from a town with a statute (if the ruling has been determined by the town’s high-
9
Neuhofer, Gemeinderecht, 58 et seq.; Oberndorfer, Allgemeine Bestimmungen des Ge-
meinderechts, in: Klug/Oberndorfer/Wolny (eds), Das österreichische Gemeinderecht (2008)
marg. no. 71.
10
See the terminology in Art. 117 para. 1 b) («City Senate« instead of «Local Board«) or
Art. 117 para. 7 B-VG («Magistrat» instead of «Local Office»).
25
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est judicial body), must be placed directly before the Constitutional or Adminis-
trative Court, rather than before the supervisory authority.
Another asymmetry is provided by Art. 127a para. 1 and 3 B-VG according
to which, municipalities with at least 10,000 inhabitants are subject to audits
performed by the Court of Auditors, whereas smaller municipalities must be
audited only under very restricted conditions. Until a recent federal constitu-
tional amendment (BGBl I 2010/98), it was a prerequisite that a municipality
have 20,000 inhabitants to conduct a general audit. Finally, the «principle of
municipal uniformity» does not apply to fiscal equalisation since municipalities
receive different revenues depending on the number of inhabitants (see below).
Furthermore, Art. 120 B-VG provides a possible basis for the future estab-
lishment of so-called «regional municipalities» (Gebietsgemeinden) pending a
constitutional amendment. Unlike the district administrative agencies that are
headed by an appointed senior civil servant with legal qualifications, the «re-
gional municipalities» require directly elected authorities – an idea, which has
been repudiated as a «politicization» of administration.11
3. LEGAL FRAMEWORK OF LOCAL SELF-GOVERNMENT
To begin with, the Council of Europe’s Charter of Local Self-Government

was ratified by Austria in 1988. In accordance with Art. 12 para. 2, Austria de-
clared itself bound by Art. 2, Art. 3, Art. 4 para. 1, 4 and 6, Art. 5, Art. 6, Art. 7
para. 1 and 3, Art. 9, and Art. 10. Following parliamentary approval, the Charter
was published in the federal law gazette (BGBl 1988/357) and thereby became
part of the Austrian legal system. The National Council resolved, however, that
the Charter would need special modification by domestic laws to become di-
rectly applicable. It was emphasized that the Charter was completely in accord-
ance with the prevailing federal constitutional provisions on local government.12
Within a multi-tier system, be it of a federal or highly regionalized nature,
the role and place of local government both vis-à-vis the federal (central) gov-
ernment and the regional governments need specific legal or even constitu-
tional recognition. Accordingly, the B-VG not only explicitly recognizes the
municipalities, but also contains a number of more substantive provisions that
form the constitutional framework for all kinds of ordinary laws that entrench
local government in more detail. From a comparative perspective, the status of
local government in Austria is very well protected, since it has a broad and
explicit constitutional basis.13 Specific rules (Art. 208-112 B-VG) apply to the
11
Kahl, Art. 120 B-VG, in: Rill/Schäffer (eds), Bundesverfassungsrecht (2006).
12
See the hansard in GP XVII RV 90 AB 184 p. 25.
13
However, this goes hand in hand with a reduction of regional power to shape local govern-
ment (Gamper, Stellung 80).
26
capital of Vienna as both a Land and a municipality, to avoid the overlapping

of Land and municipal authorities as well as to determine which constitutional
provisions pertaining to local government in general are applicable to Vienna.
Arts. 115-120 B-VG mainly determine the organisation of municipalities,
their bodies, functions and the relations between them and the federation or the
Länder. Art. 115 para. 2 B-VG generally entitles (and obliges) Länder legisla-
tion to set up more detailed rules pertaining to municipalities, unless compe-
tence on the part of the federation is expressly stipulated.14 Although the Länder
– and not the federal legislature – are generally competent to adopt legislation
on local government, their legislation is bound to the extensive set of rules per-
taining to municipalities that are established by the Federal Constitution.
At the Länder level, both the Länder constitutions and ordinary Länder leg-
islation deal with local government in adherence to federal constitutional rules.
With regard to the Länder constitutions, the Federal Constitution allows some
sub-constitutional space that is called «constitutional autonomy» of the Länder.
According to this principle, the Länder are allowed to legislate freely, also with
respect to local government, providing they do not violate federal constitu-
tional law. Based on the federal constitutional framework for the most part
Land constitutional legislation governs the rearrangement of local territory, lo-
cal elections, local authorities, the representation of local interests in the Land
law-making procedure and the municipalities’ right to initiate legislation, pleb-
iscites and opinion polls.15
The Länder have also adopted a number of ordinary laws that implement the
rules set up by the Federal Constitution and by their own constitutions, including
Local Government Acts, Town Statutes, Intermunicipal Associations Acts, Lo-
cal Election Acts, and Local Civil Servants and Contractual Employees Acts:
(1) Local Government Acts:

Burgenländische Gemeindeordnung (Burgenland Local Government Act,
LGBl 2003/55 as amended by LGBl 2010/33); Kärntner Allgemeine Gemeinde-
ordnung (Carinthian General Local Government Act, LGBl 1998/66 as amend-
ed by LGBl 2010/63); Niederösterreichische Gemeindeordnung 1973 (Lower
Austrian Local Government Act, LGBl 1000-0 as amended by LGBl 1000-13);
Oberösterreichische Gemeindeordnung 1990 (Upper Austrian Local Govern-
ment Act, LGBl 1990/91 as amended by LGBl 2009/102); Salzburger Ge-
meindeordnung 1994 (Salzburg Local Government Act, LGBl 1994/107 as
amended by LGBl 2010/67); Steiermärkische Gemeindeordnung 1967 (Styrian
Local Government Act, LGBl 1967/115 as amended by LGBl 2010/81); Ti-
roler Gemeindeordnung 2001 (Tyrolean Local Government Act, LGBl 2001/36
14
See Art. 116a para. 2, Art. 118 para. 7 and Art. 119a para. 3 B-VG.
15
Koja, Das Verfassungsrecht der österreichischen Bundesländer (1988) 430 ff.
27
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as amended by LGBl 2005/90); Vorarlberger Gesetz über die Organisation der

Gemeindeverwaltung (Vorarlberg Act on the Organisation of Local Govern-
ment, LGBl 1985/40 as amended by LGBl 2008/23); Wiener Stadtverfassung
(Viennese City Constitution, LGBl 1968/28 as amended by LGBl 2009/37).
(2) Town Statutes:

Eisenstädter Stadtrecht (Statute of Eisenstadt, LGBl 2003/56); Ruster
Stadtrecht (Statute of Rust, LGBl 2003/57); Klagenfurter Stadtrecht 1998
(Statute of Klagenfurt, LGBl 1998/70 as amended by LGBl 2008/1); Villacher
Stadtrecht 1998 (Statute of Villach, LGBl 1998/69 as amended by LGBl
2004/12); Kremser Stadtrecht (Statute of Krems, LGBl 101-11); St. Pöltener
Stadtrecht (Statute of St. Pölten, LGBl 1015-12); Waidhofener Stadtrecht
(Statute of Waidhofen, LGBl 1020-11); Wiener Neustädter Stadtrecht (Statute
of Wiener Neustadt, LGBl 1025-22); Statut für die Landeshauptstadt Linz 1992
(Statute of Linz, LGBl 1992/7 as amended by LGBl 2010/60); Statut für die
Stadt Steyr 1992 (Statute of Steyr, LGBl 1992/9 as amended by LGBl 2010/60);
Statut für die Stadt Wels 1992 (Statute of Wels, LGBl 1992/8 as amended by
LGBl 2010/60); Salzburger Stadtrecht 1966 (Statute of Salzburg, LGBl
1966/47 as amended by LGBl 2008/72); Statut der Landeshauptstadt Graz
1967 (Statute of Graz, LGBl 1967/130 as amended by LGBl 2010/42);
Stadtrecht der Landeshauptstadt Innsbruck 1975 (Statute of Innsbruck, LGBl
1975/53 as amended by LGBl 2006/89); Wiener Stadtverfassung (Viennese
City Constitution, LGBl 1968/28 as amended by LGBl 2009/37).
(3) Inter-municipal Associations Acts:

Burgenländisches Gemeindeverbandsgesetz (Burgenland Intermunicipal
Associations Act, LGBl 1987/20 as amended by LGBl 2009/43); Niederöster-
reichisches Gemeindeverbandsgesetz (Lower Austrian Intermunicipal Associa-
tions Act, LGBl 1600-4); Oberösterreichisches Gemeindeverbändegesetz (Up-
per Austrian Intermunicipal Associations Act, LGBl 1988/51 as amended by
LGBl 2002/113); Salzburger Gemeindeverbändegesetz (Salzburg Intermunici-
pal Associations Act, LGBl 1986/105 as amended by LGBl 2010/68);
Steiermärkisches Gemeindeverbandsorganisationsgesetz (Styrian Intermunici-
pal Associations Act, LGBl 1997/66 as amended by LGBl 2008/92).
(4) Local Election Acts:

Burgenländische Gemeindewahlordnung 1992 (Burgenland Local Elec-
tions Act, LGBl 1992/54 as amended by LGBl 2008/14); Kärntner Gemeinder-
ats- und Bürgermeisterwahlordnung 2002 (Carinthian Local Council and May-
or Elections Act, LGBl 2002/32 as amended by LGBl 2008/56);
Niederösterreichische Gemeinderatswahlordnung 1994 (Lower Austrian Local
Council Election Act, LGBl 0350-8); Oberösterreichische Kommunalwahlord-
nung (Upper Austrian Local Election Act, LGBl 1996/81 as amended by LGBl
28
2009/27); Salzburger Gemeindewahlordnung 1998 (Salzburg Local Election

Act, LGBl 1998/117 as amended by LGBl 2009/11); Steiermärkische Ge-
meindewahlordnung (Styrian Local Election Act, LGBl 2009/59 as amended
by LGBl 2010/77): Tiroler Gemeindewahlordnung 1994 (Tyrolean Local Elec-
tion Act, LGBl 1994/88 as amended by LGBl 2008/19); Vorarlberger Ge-
meindewahlgesetz (Vorarlberg Local Election Act, LGBl 1999/30 as amended
by 2009/36); Wiener Gemeindewahlordnung (Viennese Local Election Act,
LGBl 1996/16 as amended by LGBl 2010/31).
(5) Local Civil Servants and Contractual Employees Acts:

Burgenländisches Gemeindebedienstetengesetz 1971 (Burgenland Local
Employees Act, LGBl 1972/13 as amended by LGBl 2009/76); Niederöster-
reichische Gemeindebeamtendienstordnung 1976 (Lower Austrian Local Civil
Servants Act, LGBl 2400-46); Niederösterreichisches Gemeinde-Vertragsbe-
dienstetengesetz 1076 (Lower Austrian Local Employees Act, LGBl 2420-58);
Oberösterreichisches Gemeindebedienstetengesetz 2001 (Upper Austrian Lo-
cal Employees Act, LGBl 2001/48 as amended by LGBl 2010/60); Salzburger
Gemeindebeamtengesetz 1968 (Salzburg Local Civil Servants Act, LGBl
1968/27 as amended by LGBl 2009/116); Tiroler Gemeindebeamtengesetz
1961 (Tyrolean Local Civil Servants Act, LGBl 1970/9 as amended by LGBl
2010/52); Tiroler Gemeinde-Vertragsbedienstetengesetz (Tyrolean Local Em-
ployees Act, LGBl 2001/68 as amended by LGBl 2010/50); Vorarlberger Ge-
meindebedienstetengesetz 1988 (Vorarlberg Local Civil Servants Act, LGBl
1988/49 as amended by LGBl 2009/36); Vorarlberger Gemeindeangestell-
tengesetz 2005 (Vorarlberg Local Employees Act, LGBl 2005/19 as amended
by LGBl 2009/21); Wiener Vertragsbedienstetenordnung 1995 (Viennese Lo-
cal Employees Act, LGBl 1995/50 as amended by LGBl 2010/42); Wiener Di-
enstordnung 1994 (Viennese Local Civil Servants Act, LGBl 1994/56 as
amended by LGBl 2010/42).
Apart from the B-VG, another federal constitutional act is of particular im-
portance to municipalities. Under the Fiscal Constitutional Act (Finanz-Verfas-
sungsgesetz, hereinafter: F-VG, (see below) municipalities are allowed, at least
in principle, to raise taxes autonomously and to receive revenues from taxes
that are either levied by the federation or the Länder, as well as from certain
transfers. Moreover, two constitutional agreements, both of which seek to coor-
dinate fiscal matters among the three tiers, were concluded between the Federa-
tion (Bund), the Länder and the Austrian Association of Towns and the Aus-
trian Association of Municipalities (see below). Normally, this would not be
possible, because Art. 15a B-VG empowers only the federation to conclude
such agreements.16 According to the traditional idea of federalism as a dual
system, municipalities are still precluded from taking part in these covenants,
16
There are 2 types of agreements under Art 15a B-VG: between the Federation and the
Länder, and between different Länder.
29
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although they were allowed in 2011 to enter into formal agreements with the
municipalities of their own Land, if a Land law permits them to do so (BGBl I
2011/60), or with those of other Länder, if the concerned Länder conclude a
specific agreement under Art. 15a B-VG.
With regard to the involvement of municipalities in agreements under Art.
15a B-VG, however, two exceptions were made: the Agreement on a Consulta-
tion Mechanism and the Agreement on an Austrian Stability Pact, allowing
municipalities to be empowered by a specific federal constitutional law to con-
clude agreements with the federation and the Länder.17 The consultation mech-
anism basically provides that if one tier intends to enact a law that would im-
pose costs on one of the other tiers, the latter will have to be informed in
advance. If an agreement cannot be reached in consultation talks – which take
place between representatives of all three tiers –, the tier that generates the costs
will have to bear them.18
On the other hand, the Austrian Stability Pact obliges municipalities to
maintain balanced budgets and the Länder to reach a budgetary surplus, where-
as the federation must not exceed a certain deficit.19 Moreover, Art. 13 para. 2
B-VG obliges the federation, the Länder and the municipalities to strive for
sustainable budgets and to coordinate them among each other.
4. COMPETENCES, POWERS AND SERVICES OF LOCAL

AUTHORITIES
According to Art. 116 para. 1 B-VG, municipalities are not merely admin-
istrative units, but also autonomous bodies with the right to self-government.
Local self-government denotes the right and the ability of local authorities,
within the limits of the law, to regulate and manage a substantial share of
public affairs under their own responsibility and in the interests of the local
population. In addition to their autonomous powers (Art. 118 B-VG) the mu-
nicipalities are responsible for a number of delegated functions (Art. 119
B-VG). If the municipalities perform functions within their autonomous
sphere, they cannot be bound to instructions from federal or Länder authori-
ties, although they are subject to their supervision.20 Within their delegated
sphere of functions, however, they are bound to instructions given by these
authorities.21
17
Weber, «BVG Gemeindebund«, in: Korinek/Holoubek (Hg), Österreichisches Bundesver-
fassungsrecht (2000).
18
Bußjäger, Rechtsfragen zum Konsultationsmechanismus, ÖJZ 2000, 581.
19
Schäffer, Konsultationsmechanismus und innerstaatlicher Stabilitätspakt, ZÖR 2001,
145.
20
Oberndorfer, Bestimmungen marg. no. 61 et seq.; Neuhofer, Gemeinderecht 225 et seq.
21
30
It should be noted, however, that even within their autonomy, municipalities

do not have competences of their own. The tasks that are performed by mu-
nicipalities, (either autonomous or delegated functions) are the competences of
either federal or Land authority that has explicitly conferred these actions to the
municipalities by federal or Länder laws. This occurs because according to the
initial idea of federalism, the distribution of competences will only affect the
federation and the constituent units, while other tiers derive their powers exclu-
sively in a «secondary» distribution via ordinary legislation. If, however, as
sometimes has happened, federal or Land laws fail to confer tasks to the mu-
nicipalities, these pieces of legislation will be unconstitutional, but they remain
in force as long as they are not struck down by the Constitutional Court, accord-
ing to the Austrian system of constitutional review. In any case, municipalities
still cannot act without express legal authorisation.22
All municipal tasks are of an administrative nature, since the municipalities
have neither legislative nor judicial powers. Their administrative competences
include the power to enact regulations, which are general administrative acts
that are normally based on a law without actually being a law,23 and to take di-
rect measures of administrative enforcement and sanctions, pursuant ordinary
legislation. They can also expropriate or restrict the use of private property, as
authorised by law, but these laws must be strictly proportional in terms of pub-
lic interest, suitability, necessity and adequacy.
Art. 118 para. 2 B-VG generally defines autonomous functions in accord-
ance with the principle of subsidiarity, i.e. those tasks which are exclusively or
preponderantly the concern of the municipality and suited to performance by
the local community within its local boundaries. The autonomous sphere also
includes the municipalities’ capacity to act as legal entities under private law
and as independent economic bodies entitled to the possession of all kinds of
property within the general framework of the law, and to engage in economic
enterprises.
Furthermore, Art. 118 para. 3 B-VG enlists particular matters which pertain
to the municipalities’ autonomous sphere, such as the settlement of internal ar-
rangements for the performance of local functions, the appointment of local
22
See VfSlg 6944/1972, 8719/1979. An exception to this rule is the private sector where the
municipality does not require explicit authorisation (Art. 116 para. 2 B-VG; see VfSlg
17.557/2005). Another exception is the so-called «local police regulation» (ortspolizeiliche
Verordnung): According to Art. 118 para. 6 B-VG, the municipality is entitled, in matters pertain-
ing to the autonomous sphere of local functions, to issue local police ordinances on its own ini-
tiative for the prevention of imminent or existing nuisances interfering with local communal life
as well as to declare non-compliance with them an administrative contravention. Such ordi-
nances, however, even though they may be issued directly on the basis of Art. 118 para. 6 B-VG
without an intermediate law, must not contravene federal or Land legislation.
23
Only the aforementioned ortspolizeiliche Verordnung does not require to be based on an
ordinary law.
31
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authorities and local civil servants, local security, traffic, market, and building
police, local fire control, public decency, local sanitary police etc. This is not an
exhaustive list, but it acknowledges the most important fields included with the
general clause.
According to Art. 119 para. 1 B-VG, the delegated sphere of local functions
includes the non-autonomous tasks that municipalities must perform in adher-
ence to the federal and Länder laws that delegate these tasks to them. The mu-
nicipalities are subject to instructions given by federal or Länder authorities.
Within the general framework of the Federal Constitution, the competent legis-
lature is responsible for determining whether or not an administrative task is
delegated to the municipalities. In contrast to the tasks assigned to the munici-
palities’ autonomous sphere, the Federal Constitution neither enumerates the
tasks falling into the delegated sphere nor establishes them in a general clause.
With regard to delegated functions, municipalities have not the right to self-
government, and serve as mere administrative units.
Municipalities may be obliged by law to deliver public services that are of
essential interest to the local community. Examples include sewage systems,
energy supply, public traffic control or waste disposal. General constitutional
limitations, such as the principles of equality, proportionality and efficiency
must be observed, though. Municipalities are also bound by the general fiscal
rule that the revenue derived by a territorial body from fiscal equalization must
be used towards the execution of the functions required of that body.24
5. BASIC ORGANISATION
Under Art. 117 B-VG, the basic authorities of each municipality must in-
clude the local council (Gemeinderat), a representative body elected by those
entitled to vote in the municipality, the local board (Gemeindevorstand), also
known as the city council (Stadtrat) or the city senate (Stadtsenat) in towns
with their own statute, and the mayor (Bürgermeister). The local council and
the local board are multi-member bodies, whereas the mayor is a monocratic
organ. Länder legislation may establish other local authorities25 or authorize
municipalities to do so. Länder legislation may also provide more detailed rules
on the specific functions of local authorities. Also, the Local Government Acts
and Town Statutes commonly contain such provisions.
Details concerning the organisation and competences of local authorities
depend on the respective Local Government Act or Town Statute of a Land,
24
Neudorfer, Zur Zulässigkeit kommunaler Pflichtaufgaben im Bereich der Daseinsvorsor-
ge, JBl 2010, 352.
25
Such as the local office (Gemeindeamt, Stadtmagistrat), the chief magistrate (Ortsvorste-
her), specific commissions, etc.
32
and these rules differ from Land to Land. In practice, the local council and the
mayor are the most important organs. The local council is a general representa-
tive body, which, as the Federal Constitution stipulates, is elected by all local
citizens, also including resident citizens of other EU Member States, entitled to
vote according to the principles of equal, direct, secret and personal suffrage on
a proportional basis.26 Participation of Austrian or other EU citizens in local
elections is determined by specific Elections Acts and by the length of resi-
dency (not their principal domicile) in a municipality.27 The number of mem-
bers of the local council varies according to the number of inhabitants in the
municipality within the same Land, or from Land to Land.
The local council is not a parliamentary body, because it has no legislative
powers. It merely represents the citizens of a sub-state entity, but it is competent
to deliberate and decide on a wide range of issues pertaining to the autonomous
sphere, including budgetary matters. Art. 118 para. 5 B-VG stipulates that the
mayor, the members of the local board and appointed local officials are respon-
sible to the local council for the performance of their functions within the mu-
nicipality’s autonomous sphere. The local council serves as the supreme local
body that oversees the functions exercised in the autonomous sphere. Although
this is not expressly stipulated by the Federal Constitution, the Local Govern-
ment Acts of the Länder regularly vest the local council with residuary compe-
tence to perform all tasks that no other body is explicitly competent to perform.28
The mayor is the authority that represents a municipality externally, particu-
larly in regard to private law matters. If the mayor performs administrative
tasks pertaining to the municipality’s autonomous sphere, he is responsible to
the local council (Art. 118 para. 5 B-VG). Tasks pertaining to the delegated
sphere of municipalities generally must be performed by the mayor (Art. 119
para. 2 B-VG) but can be delegated to other local authorities. The mayor main-
tains his responsibility in certain kinds of matters pertaining to the delegated
sphere of local functions because of their factual connection with actions per-
taining to the municipality’s autonomous sphere. The delegated authorities
must heed the instructions of the mayor. As a rule, the mayor is the president of
the local council and the local board, as well as the head of the local mayor’s
office and local civil servants.
Originally, the Federal Constitution had not explicitly allowed for direct
election of the mayor. Land legislation that provided for such a system was
26
Stolzlechner, Art. 117 B-VG, in: Rill/Schäffer (eds), Bundesverfassungsrecht (2010) marg.
no. 9 et seq.; Gamper, Europäischer Citoyen und europäisches Wahlrecht, in: Gamper (ed), Ent-
wicklungen des Wahlrechts am europäischen Fallbeispiel (2010) 3 (6 et seq.); Pernthaler, Bun-
desstaatsrecht 115 et seq.
27
Oberndorfer/Trauner, Gemeinderatswahlen, in: Klug/Oberndorfer/Wolny (eds), Das
österreichische Gemeinderecht (2008) marg. no. 83 et seq.
28
Steiner, Rechtsstellung und Aufgaben der Gemeindeorgane, in: Klug/Oberndorfer/Wolny
(eds), Das österreichische Gemeinderecht (2008) marg. no. 41.
33
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declared unconstitutional by the Constitutional Court in 1993.29 The Federal

Constitution was amended in 1994, however, to allow the Länder to decide on
a direct election system.30 Art. 117 para. 6 B-VG now stipulates that the mayor
is elected by the local council, unless a Land constitution states that he must be
elected by persons entitled to elect the local council (i.e. the local citizens that
are entitled to vote according to Art. 117 para. 2 B-VG). This explicit provision
expands the constitutional autonomy of the Länder, allowing its own constitu-
tional law to govern whether the mayor will be elected by the local council or
directly by local citizens. So far, six (out of nine) Länder31 have adopted laws
that provide for the direct election of the mayor, although they sometimes ex-
clude towns that have their own statute.
The electoral parties represented in the local council have a claim to propor-
tional representation on the local board (Art. 117 para. 5 B-VG). The Federal
Constitution does not determine which tasks the local board is responsible for,
although it mentions that members are responsible to the local council in the
performance of autonomous tasks (Art. 118 para. 5 B-VG). According to Art.
119 para. 3 B-VG, the mayor may also confer tasks pertaining to the delegated
sphere to members of the local board who, in this case, must heed the mayor’s
instructions and are responsible for any illegality.
In contrast to other municipalities, Vienna is divided into local districts,
the inhabitants of which are represented in sub-municipal district assemblies.
In 2004, the Constitutional Court repealed a provision of the Local Elections
Act enacted by the Viennese Land parliament which entitled non-Austrian
(and non-EU) citizens to vote in the elections for the district assemblies, if
they had permanently resided in Vienna for at least 5 years.32 The Constitu-
tional Court held that the right to elect the district assemblies required Aus-
trian citizenship.
Inter-municipal cooperation has an important role, because Austrian munici-
palities are small and often burdened with the daily task of providing public serv-
ices. Cooperation is seen as a way of avoiding mergers among municipalities
(which has occurred in recent years in some Länder), while at the same time, al-
lowing them to make use of synergistic effects.33 There is a wide range of formal
and informal instruments of inter-municipal cooperation: de facto collaboration,
mutual assistance (round tables of mayors etc), private law contracts, associations
and companies under the Austrian Civil Law Code, companies under company
law, administrative communities and inter-municipal associations under public
29
VfSlg 13.500/1993.
30
BGBl 1994/504 (cf. also Novak, Bürgermeister-Direktwahl [1995]).
31
Burgenland, Carinthia, Salzburg, Tyrol, Upper Austria, and Vorarlberg.
32
VfSlg 17.264/2004.
33
Weber, Interkommunale und überörtliche Zusammenarbeit in Österreich: Verfassungs-
rechtliche und institutionelle Grundlagen, in: Gamper (ed), Interkommunale Zusammenarbeit
und überörtliche Raumplanung (2007) 131.
34
law (Gemeindeverbände).34 The latter is regulated by Art. 116a B-VG35: The mu-
nicipalities themselves may initiate inter-municipal associations, under certain
conditions, with the approval of the respective Land. Approval is granted by reg-
ulation if there is a lawful agreement between the municipalities and if the execu-
tion of tasks, particularly those pertinent to public administration, will not jeop-
ardise the municipalities’ functions as self-governing bodies or their rights. The
association is conceived as means of ensuring expediency, economic efficiency,
and thrift in the interest of the municipalities concerned.
Apart from the «voluntary» inter-municipal association, the federation and
the Länder may also establish these associations by law, to expedite the execu-
tion of local matters, as long as this will not endanger the functioning of mu-
nicipalities as self-governing units and as administrative entities. Moreover, the
participating municipalities must be heard before such an obligatory associa-
tion is established. They must also be granted sufficient authority in the per-
formance of the joint tasks assigned to their autonomous sphere. Since a fed-
eral constitutional amendment passed in 2011 (BGBl I 2011/60), inter-municipal
cooperation has been facilitated to some extent (see above).
6. HUMAN RESOURCES
All Länder (except Vienna and other towns with their own statute) have
enacted legislation that draws a clear distinction between the local executive
bodies and the local office. Article 117 para. 7 B-VG stipulates that the local
office must perform «local business». This provision should not be interpreted
as meaning that the local office will be given authority. Basically, it means that
the local office will assist local authorities in performing «local business»,
meaning all local tasks, regardless of whether they pertain to public administra-
tion, private law, or the autonomous or delegated sphere of local functions. The
local office staff includes civil servants as well as public employees on con-
tract. All local government acts recognize the mayor as the statutory head of
local administrative services, although an internal director of administration
may be appointed as senior officer in charge to ensure efficient management of
local business (with responsibility over the municipal staff). The senior officer
is directly accountable to the mayor. Article 117 para. 7 B-VG requires that the
senior officer of a Magistrat, which is the name of the local office in towns with
their own statute, must be an academic with legal training.
The local government acts differ as to details. Depending on the number of
local citizens, most acts stipulate that the director of administration should be a
34
Havranek/Kemptner: Interkommunale Zusammenarbeit durch Gemeindeverbände und
Verwaltungsgemeinschaften, in: Klug/Oberndorfer/Wolny (eds), Das österreichische Gemeinde-
recht (2008); Neuhofer, Gemeinderecht 549 et seq.
35
Stolzlechner, Art. 116a B-VG, in: Rill/Schäffer (eds), Bundesverfassungsrecht (2001).
35
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full-time professional or even an academic with legal or economic background.

As a rule, local government acts do not specify the exact size of the local ad-
ministrative office, so in small municipalities the office may consist of only one
person who is both senior officer and staff and who is usually called «local
secretary».36 These local officers do not have powers of their own as do local
authorities. They serve as auxiliary bureaucratic bodies, and their services are
very useful in practice.
The Federal Constitution stipulates that a public employee must be allowed
to transfer between services of the federal government, the Länder or the mu-
nicipalities (Art. 21 B-VG). As mentioned before, the appointment of the mu-
nicipal staff and their supervision (excluding some supra-local examination
boards) falls within the autonomous sphere of municipal administration (Art.
118 para. 3 B-VG). This means that municipalities are responsible for all spec-
ified decisions regarding recruitment, career management, continuing educa-
tion, exams, promotion, relocation, dismissal, periods of service etc. These as-
pects are determined by Land legislation, namely the Local Civil Servants and
Contractual Employees Acts, which are enacted by the Länder. The laws regu-
late the career management of municipal staff, including questions of overtime,
gratifications, allowances, promotion etc., and are quite similar to laws that
regulate the position of public employees in federal or Länder government.
7. LOCAL GOVERNMENT FINANCE
As mentioned before, the B-VG does not regulate fiscal relations. Article 13
B-VG explicitly refers to the Fiscal Constitutional Act (Finanz-Verfassungsge-
setz, hereinafter F-VG; BGBl 1948/45 as amended by BGBl I 2007/103), which
is a constitutional law. Pursuant to § 2 F-VG, municipalities must cover the
expenses generated by the performance of their tasks, regardless of whether
they belong to the autonomous or delegated sphere of functions, unless federal
or Länder laws stipulate otherwise. These laws, however, must not contravene
§ 4 F-VG, which embodies the principle of fiscal equality. It also obliges fed-
eral or Länder laws to heed the limits of efficiency of each territorial entity and
the distribution of public tasks between them.37
Pursuant to § 6 F-VG, municipalities are entitled to levy exclusive local
taxes or share joint taxes with the federation and/or the Länder according to
various distribution schemes. According to § 7 F-VG, it is the competence of
the federal legislature to regulate shared federal taxes, declare specific taxes as
exclusively local taxes and to authorize municipalities to levy certain taxes
36
Wolny/Kliba, Struktur und Aufgaben des Gemeindeamtes (Magistrates), in: Klug/Obern-
dorfer/Wolny (eds), Das österreichische Gemeinderecht (2008) marg. no. 5 et seq.
37
Ruppe, § 4 F-VG, in: Korinek/Holoubek (eds), Österreichisches Bundesverfassungsrecht
(2000).
36
based on resolutions issued by the local council. Länder legislation determines

shared Länder taxes and exclusive local taxes (in general) while taking into
consideration the financial viability of municipalities (§ 8 para. 2 F-VG). It may
also authorize municipalities to levy certain taxes based on resolutions issued
by the local council or oblige them to levy certain taxes if the budgetary situa-
tion of municipalities requires it.
The F-VG also provides that financial allocations be granted to municipali-
ties by the federation and the Länder, either in the form of rate support grants
or allotments in accordance with specified requirements (§ 12 para. 1 F-VG).
Under certain conditions, the municipalities may be granted subsidies ear-
marked for specific purposes (§ 12 para. 2 F-VG). Under § 3 F-VG, the Länder
are entitled, to a certain extent, to apportion their needs to municipalities or
municipal associations, provided they are not covered by other revenues.
The Länder have made use of the limited financial scope granted them by
the F-VG in terms of adopting their own Länder Tax Acts and other more spe-
cific acts that include provisions with regard to exclusive local taxes and taxes
shared between the Land and its municipalities. Under the Länder Apportion-
ment Acts, municipalities are obliged to assign the Länder part of their reve-
nues in order to cover its financial needs.38
The main piece of legislation that implements the general rules provided
by the F-VG is the Fiscal Equalisation Act (Finanzausgleichsgesetz, herein-
after: FAG). This is an ordinary federal law that is usually re-enacted every
four years to adapt it to the current financial situation (BGBl I 2007/103 as
amended by BGBl I 2011/56). The federation is given constitutional compe-
tence to enact this law without asking the Länder or the municipalities for
their consent (the federal second chamber does not have the right of absolute
veto in this case), but for political reasons the Länder and the municipalities
are invited to take part in the political negotiations preceding its enactment.39
This is an indicator of increasing «three-tier-federalism» in Austria, although
the federation, on account of its competence, plays the principal role in these
negotiations.40 If the representatives of all three tiers agree to the FAG, the
Constitutional Court will rule in favour of the presumption that the Act is
rational and reasonable. This means that if a municipality feels discriminated
against because of insufficient financial resources, this law can be challenged
before the Constitutional Court, but the Court will presume the constitution-
ality of the FAG, because representative associations had previously given
their political consent.41
38
Wolny/Rader, Gemeindefinanzen, in: Klug/Oberndorfer/Wolny (eds), Das österreichische
Gemeinderecht (2008) marg. no. 101 et seq.
39
Wolny/Rader, Gemeindefinanzen marg. no. 17.
40
Pernthaler, Bundesstaatsrecht 397 et seq.
41
VfSlg 12.505/1990;12.832/1991; 15.039/1997; 16.849/2003. Cf. Ruppe, § 4 F-VG marg.
no. 4 et seq.
37
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In accordance with § 15 FAG, exclusive local taxes, such as real estate tax,
communal tax, secondary residence tax, entertainment tax, fishing and hunting
tax, the tax for keeping animals, for parking cars and several fees for the use of
local facilities, may be established freely by the local council (although within
a certain framework of percentages set by § 15 FAG). Land legislation may
further extend the municipalities’ tax autonomy.
In 2009, the Austrian municipalities’ (without Vienna) share in financial
equalisation amounted to a total of 8,111 million Euros whilst Vienna received
5,540 million Euros. As a part of this total amount, the municipalities (without
Vienna) received 4,741,567,000 Euros from joint federal taxes, whilst Vienna
received 2,551,504,000 Euros as a Land and 1,876,361 Euros as a municipality.42
These figures show that the major part of local finances is derived from shares
in joint federal taxes or from allotments made in accordance with specified re-
quirements. Among autonomous local taxes, the real estate tax is very impor-
tant, so municipalities would now like the federal law-makers to increase it, as
their shares in the joint federal taxes decrease.
Since municipalities are entitled to possess their own property and to run
economic enterprises as legal entities under private law, part of their finances,
the amount of which differs greatly from municipality to municipality, are de-
rived from their private law-related activities.43
8. PROPERTY AND ASSETS
Each municipality is an independent economic entity. Pursuant to Art. 116

para. 2 B-VG, and within the limits of the ordinary laws of the federation and
the Länder, a municipality is entitled to possess property of all kinds, acquire
and dispose of it at will, operate economic enterprises, and manage its budget
independently within the framework of the Austrian Stability Pact. Municipali-
ties are given the right to engage in private law activities as well. Many mu-
nicipalities run enterprises of their own or hold shares, and own real estate.44
The Land Local Government Acts quite often distinguish between three
different kinds of local property (in a broad sense):45 Public assets (öffentli-
ches Gut) comprise local property that is dedicated to public use. Local assets
(Gemeindegut) comprise local property that is dedicated to the use of a se-
lected range of beneficiaries, whereas local property (in the narrow sense,
Gemeindevermögen) comprises the remaining local property. Normally, it is
42
Official statistical data provided by www.statistik.at.
43
Wolny/Rader, Gemeindefinanzen marg. no. 128 et seq.
44
Binder, Wirtschaftsunternehmen der Gemeinde, in: Klug/Oberndorfer/Wolny (eds), Das
österreichische Gemeinderecht (2008).
45
38
the local council that disposes of local property, although the competence
sometimes may be split between several local authorities, depending on the
value of an asset or if is movable or immovable. If the transfer of a given
property surpasses a certain value, approval from the supervisory authority
must be obtained.
9. CONTROL AND SUPERVISION OF LOCAL AUTHORITIES
Although municipalities, within their autonomous sphere are not bound by

the instructions of federal or Länder authorities, they are supervised by the
district administrative agencies in the first instance, and in the last instance, by
the Land Government in representation of the Länder and by the Land Gover-
nor in representation of the federation. However, according to Art. 119a para. 1
B-VG, supervision applies only to lawfulness, i.e. whether or not local authori-
ties infringe laws and ordinances (federal or Land), and in particular, whether
they exceed their sphere of functions, and if they are performing their legal du-
ties. In addition to this instrument of legal control, the Länder can audit a mu-
nicipality’s financial management with respect to thrift, efficiency, and expedi-
ency. Within three months after the result of the audit has been conveyed to the
Mayor for submission to the local council, the Mayor has to inform the super-
visory authority of the measures taken by reason of the result of the audit.
There is a wide range of supervisory instruments:46 The supervisory author-
ity is entitled to information about every kind of local business. Municipalities
are bound to provide information requested by the supervisory authority re-
garding individual cases and to allow on the spot inspections. In so far as the
competent legislature contemplates the dissolution of the local council as a su-
pervisory expedient (which happens only in rare cases), this measure rests with
the respective Land government in exercise of its right of supervision, and with
the Land governor, in exercise of the federation’s right of supervision. The ad-
missibility of substitution is reserved for cases of absolute necessity. Supervi-
sory measures are carried out with greatest possible consideration of third party
acquired rights (Art. 119a para. 7 B-VG).
If municipalities have issued regulations within their autonomous sphere of
function, they must immediately advise the supervisory authority (Art. 119a
para. 6 B-VG), who, after hearing the municipality, will rescind regulations that
are contrary to law and inform the municipality as to the reasons. In this case,
the principle of legality predominates over the principle of local self-govern-
ment (note that Austria did not declare itself bound by Art. 8 of the Charter of
Local Self-Government).
46
Kahl, Art. 119a B-VG, in: Rill/Schäffer (eds), Bundesverfassungsrecht (2007) marg. no.
21 et seq.; Hauer, Gemeindeaufsicht, in: Klug/Oberndorfer/Wolny (eds), Das österreichische
Gemeinderecht (2008) marg. no. 57 et seq.; Neuhofer, Gemeinderecht 333 et seq.
39
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Individual measures taken by a municipality in its own sphere of compe-

tence that also affect supra-local interests considerably, particularly financial
ones, can be bound to the approval of the supervisory authority according to
federal or Länder law. Approval may be denied only if the state of affairs une-
quivocally justifies the preference of supra-local interests (Art. 119a para. 8
B-VG).
On the other hand, a municipality may request that the performance of cer-
tain actions in its autonomous sphere be assigned to a State authority by regula-
tion of the Land government or the Land governor. In so far as such a regulation
assigns competence to a federal authority, it must obtain the approval of the
Federal Government (Art. 118 para. 7 B-VG).
According to Art. 119a para. 5 B-VG, anyone who alleges infringement of
rights by an administrative ruling of a municipality in matters pertaining to its
autonomous sphere of functions, can lodge a special appeal before the supervi-
sory authority (normally, the Land Government on behalf of the Länder and the
Land Governor on behalf of the federation) after having exhausted all proce-
dures for an ordinary appeal and within two weeks after issuance of the decree.
The supervisory authority will rescind the ruling if the citizen’s rights have
been violated, and refer the matter back to the municipality for a new decision
that must be based on the legal opinion of the supervisory authority. If an indi-
vidual believes that a right under private law has been violated, he may sue the
municipality before the ordinary courts.
Local government execution of the federation’s competences may be con-
trolled by the federal Ombudsman as long as the municipality performs tasks
within its delegated sphere of competence. A controversy has arisen as to whether
the performance of autonomous tasks, if they affect federal competences, may
also be controlled by the federal Ombudsman.47 If local administration affects
Land competences, supervision will be exercised by the federal Ombudsman in
the seven Länder that authorised the federal Ombudsman as the competent au-
thority to control their administrations instead of establishing their own Ombuds-
man. The Land Ombudsman is the authority in the Länder Tyrol and Vorarlberg.48
10. PROTECTION OF LOCAL SELF-GOVERNMENT
According to Art. 119a para. 9 B-VG, each municipality is a party to the

control proceedings developed by the supervisory authorities and may lodge an
appeal against the rulings of the supervisory authorities either through the Ad-
ministrative Court or the Constitutional Court (Art. 119a para. 9 B-VG). In the
47
Kucsko-Stadlmayer, Art. 148a B-VG, in: Korinek/Holoubek (eds), Österreichisches Bun-
desverfassungsrecht (2009) marg. no. 13.
48
See Art. 59 of the Tyrolean Constitution and Art. 59 et seq. of the Vorarlberg Constitution.
40
latter case, the municipality may even claim the constitutionally guaranteed
right to local self-government.49 Moreover, a municipality may challenge the
regulation of a supervisory authority before the Constitutional Court, if the
regulation illegally abolishes a local regulation based on alleged illegality.
These constitutional remedies are also mentioned in the Land Local Govern-
ment Acts. A municipality can directly challenge any federal or Land regula-
tion or law before the Constitutional Court (any private person may also file a
case of direct infringement of rights), if it violates its right to local-self govern-
ment insofar as the regulation deprived the municipality of an autonomous task
by either assigning it to the municipality’s delegated sphere or to a federal or
Land authority instead of a local authority.
11. LOCAL GOVERNMENT AND THE EUROPEAN UNION
The Austrian members of the Committee of the Regions are proposed by the
Federal Government at the suggestion of the Länder, the Austrian Federation of
Municipalities and the Austrian Federation of Towns. Nine out of twelve Aus-
trian members are proposed by the Länder, and the remaining three may be
nominated jointly by the two municipal associations.50
According to Art. 23d B-VG, the federation must diligently inform the mu-
nicipalities about EU projects, if these affect their autonomous sphere of action
or other important interests. In this context, the Austrian Federation of Munici-
palities and the Austrian Federation of Towns are explicitly and specifically
empowered to represent the municipalities, although Art. 115 para. 3 B-VG
empowers both associations to represent their interests. Unlike the Länder, nei-
ther of these associations nor the individual municipalities have any formal
rights to bind the Austrian representative to the EU Council to their statements.
While the Land Parliaments are now authorised to receive information about
draft EU legislation and to present the Federal Council with a statement as to
whether they find the draft in accordance with the principle of subsidiarity
(BGBl I 2010/57), the municipalities have not been given this right.
Municipalities often profit from EU structural funds that are coordinated by
the Länder in Austria (e.g. with regard to urban development). Their informal
cooperation (e.g. city twinning) with neighbouring municipalities from other
EU Member States could be formalized and made more systematic within the
framework of a European Grouping of Territorial Cooperation51. It has required
a federal constitutional amendment performed in 2011 to permit inter-munici-
49
Oberndorfer, Bestimmungen marg. no. 172 et seq.
50
Öhlinger, Art. 23c B-VG, in: Korinek/Holoubek (eds), Österreichisches Bundesverfas-
sungsrecht (1999) marg. no. 9.
51
Regulation (EC) No 1082/2006 of the European Parliament and of the Council of 5 July
2006 on a European grouping of territorial cooperation (EGTC), OJ 2006 L 210/19.
41
anna gamper
pal associations between Austrian (!) municipalities that belong to different

Länder (depending on a formal agreement between the concerned Länder,
though). Intermunicipal associations consisting of municipalities belonging to
other states than Austria and entitled to act with imperium, however, would be
quite another, still distant league. Nevertheless, the common needs and chal-
lenges, particularly lying in the request for the delivery of key public services
despite increasingly tight budgets, are shared by Austrian municipalities as well
as municipalities throughout Europe.
12. SOURCES OF INFORMATION: TO KNOW MORE
12.1. Constitutional Court case-law (www.ris.bka.gv.at)
VfSlg 9336/1982
VfSlg 13.235/1992
VfSlg 13.500/1993
VfSlg 15.302/1998
VfSlg 15.938/2000
VfSlg 18.446/2008
VfGH G276/09, 11.3.2010
12.2. Selected bibliography on local government
12.2.1. Books
Pernthaler, Peter & Gamper Anna: Local Government in Austria, in: Nico
Steytler (ed), The Place and Role of Local Government in Federal Systems,
Johannesburg (Konrad-Adenauer-Stiftung) 2005, 65.
Gamper, Anna: Die Stellung der Gemeinden im Vergleich europäischer
Bundesstaaten, in: Europäisches Zentrum für Föderalismus-Forschung
Tübingen (Hg), Jahrbuch des Föderalismus 2006, Baden-Baden (No-
mos) 2006, 66.
Klug, Friedrich; Oberndorfer, Peter & Wolny, Erich (eds): Das österreichis-
che Gemeinderecht, Vienna (2008).
Neuhofer, Hans: Gemeinderecht, Vienna/New-York (1998).
Österreichischer Gemeindebund (ed): 40 Jahre Gemeindeverfassungsnovelle
1962: Aktuelle Rechtsfragen und Entwicklungen der kommunalen Selb-
stverwaltung, Vienna (2002).
42
Österreichische Verwaltungswissenschaftliche Gesellschaft (ed), Selbstverwal-

tung in Österreich: Grundlagen, Probleme, Zukunftsperspektiven, Vienna/
Graz (2009).
12.2.2. Journals
Österreichische Gemeinde Zeitung (ÖGZ)

Recht und Finanzen für Gemeinden (RFG)
Österreichische Bürgermeister-Zeitung (ÖBZ)
12.3. Internet resources
Rechtsinformationssystem, Legal information services (www.ris.bka.gv.at)

Österreichischer Gemeindebund, Austrian Federation of Municipalities (www.
gemeindebund.at)
Österreichischer Städtebund, Austrian Federation of Towns (www.staedte-
bund.at)
Amt der burgenländischen Landesregierung, Abteilung 2 - Gemeinden und
Schulen, Office of the Burgenland Land Government, Department 2 – Mu-
nicipalities and Schools (www.burgenland.at/politik-verwaltung/landesver-
waltung/abteilung2/36)
Amt der Kärntner Landesregierung, Abteilung 3 – Gemeinden, Office of the
Carinthian Land Government, Department 3 - Municipalities (www.ktn.
gv.at/42557_DE-Amt_der_Kaerntner_Landesregierung_-Abt.3_Ge-
meindeabteilung)
Amt der Niederösterreichischen Landesregierung, Abteilung Gemeinden, Of-
fice of the Lower Austrian Government, Municipalities Department (www.
noel.gv.at/politik-verwaltung/landesverwaltung/amt-der-noe-landesre-
gierung/lv_abt_ivw3.html)
Amt der Oberösterreichischen Landesregierung, Abteilung Gemeindeangele-
genheiten, Office of the Upper Austrian Land Government, Municipalities
Department (www.land-oberoesterreich.gv.at)
Amt der Salzburger Landesregierung, Gemeindeabteilung, Office of the Salz-
burg Government, Municipalities Department (www.salzburg.gv.at/ge-
meinden)
Amt der Steiermärkischen Landesregierung, Abteilung 7 Gemeinden und In-
nere Angelegenheiten, Department of the Styrian Land Government, De-
43
anna gamper
partment 7 – Local and Internal Affairs (www.verwaltung.steiermark.at/

cms/beitrag/10008968/9688/)
Amt der Tiroler Landesregierung, Abteilung Gemeindeangelegenheiten, Office
of the Tyrolean Land Government, Municipalities Department (www.tirol.
gv.at)
Amt der Vorarlberger Landesregierung, Gemeindeabteilung, Office of the Vo-
rarlberg Land Government, Municipalities Department (www.vorarlberg.
gv.at)
Amt der Wiener Landesregierung, Office of the Viennese Land Government
(www.wien.gv.at)
44
Chapter 2:
LOCAL GOVERNMENT IN BELGIUM*
Jacques BOUVIER
1.1. The Belgian Constitution: key elements
After proclaiming the independence of the country, the National Congress of

Belgium (the ancestor of the current Parliament) adopted on February 7th, 1831 the
text of the national Constitution, whose 1st article stipulates that «Belgium is di-
vided into provinces». By means of this wording, the national Congress expresses
in an implicit but inevitable way that the local power (represented by the provinc-
es) stands at the very basis of the Belgian state. Consequently, it is historically evi-
dent that, in effect, both provinces and municipalities preexisted before the founda-
tion of Belgium and that they constitute the essential foundation of that state.
This importance of the local level of government is reproduced at several points
of the Constitution. Thus, the Fundamental Law dedicates its title 2 to the «Indi-
vidual liberties», while title 3 deals with the political «Powers». Here, and follow-
ing a classical approach, the Magna Carta depicts the trinity of «legislative power»
(chapter 1), «executive power» (chapter 2) and «the judiciary» (chapter 3). Finally,
chapter 4 of that third title regulates «the provincial and municipal institutions».
This constitutional relevance of local government, which is situated at the same
level with the other three «classical» powers, justifies the assertion of some com-
mentators that local administration in Belgium stands as the real fourth power.
Apart from this key place of local government within the constitutional text,
the Belgian Constitution establishes certain essential elements and principles of
the local administration:
– The management by the municipal and provincial authorities of all affairs
which are of exclusive municipal and provincial interest;
*
Translation from the original manuscript in French by Angel-Manuel Moreno.
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– The exclusive competence of the legislative power to organize provinces

and municipalities;
– The direct election of the members of the municipal and provincial councils;
– The supervisory higher authority (autorité de tutelle) can intervene only
when this is necessary to prevent that the local authorities exceed in the
exercise of their competences or do hurt the general interest;
– The prescriptions on the running of the public register of the civil status,
and of other public, administrative registers;
– The fiscal autonomy of provinces and municipalities.
The Municipal Act, as well as the provincial Acts (as amended) have imple-
mented these various constitutional principles since their adoption in 1836.
The Belgian Constitution has known several amendments since 1831, which
have affected local government in a more or less direct manner. These amend-
ments deal with the following aspects:
– The capacity of local authorities to create associations;
– The power of local bodies to create intra-municipal organs;
– The capacity of local entities to carry out popular, local referendums, con-
cerning matters of municipal or provincial interest;
– The power of local authorities to create urban agglomerations and federa-
tions of municipalities, and their ability to put under this legal regime the
agglomeration where the capital city is placed;
– The creation of 4 linguistic regions in the country. Every municipality in
the nation must be connected with one of such linguistic regions.
Apart from these constitutional developments, the municipal and provincial
institutions also knew several important legislative evolutions in the XIX and
XXth centuries. Let us quote here the following ones:
– The abolition of the municipal right of fiscal «granting» (droit communal
d’octroi) in 1860, and its replacement by a mechanism of general financ-
ing of the municipalities (see, infra, point 7);
– The merger of municipalities;
– The abolition of the communal police (police communale), and its replace-
ment by a local police.
Notwithstanding the importance of this abovementioned legal changes, the
most important public-Law development in the history of the country has been
the inception and the establishment of Federalism in Belgium. Thus, Section 1
of the Belgian Constitution - such as modified in 1980- provides today as fol-
lows: «Belgium is a federal state, consisting of communities and regions». Ac-
cording to this new constitutional depiction, the powers of the Belgian State are
thus awarded to three different, constituent political elements: one federal state
(the kingdom of Belgium) three «Regions» (Flanders, Wallonia and Brussels-cap-
46
local government in belgium
ital) and three «Communities» (the French linguistic community, the Flemish lin-
guistic community and the German-speaking linguistic community).
The organization of these three constitutional cogs and the determination of
their powers are settled either by the Constitution or by statutes adopted with a
special parliamentary majority («organic statutes», lois organiques), which can
be qualified as «para-constitutional laws». This dismemberment of the powers of
the Belgian state has a fundamental importance as regards the local powers: under
the new system of federalism and the process of devolution, the three mentioned
Regions (Flanders, Wallonia and Brussels-capital) became competent to regulate
all matters dealing with the so-called «subordinate powers», that is, provinces and
municipalities. This regulatory power in the hands of the Regions covers, among
others, the following aspects of the legal regime of local authorities: (a) their
composition, organization, competences and functioning; (b) the change or the
rectification of their territorial limits; (c) the composition, the organization, the
competences and the functioning of the institutions of the agglomerations and
federations of cities; (d) the election of the provincial, municipal and intra-munic-
ipal organs; and (e) the disciplinary regime of the mayors (bourgmestres).
As said at point 1, supra, the entities of the local level of government in

Belgium are essentially provinces (second-tier bodies) and municipalities
(«communes» in French, cities and towns), which form the essential and first
tier authorities. There are ten provinces in the country, covering the territory of
the Flemish and the Walloon region. The Brussels region is not covered by a
division in provinces. There are 5 provinces in the Walloon region and 5 prov-
inces in the Flemish region.
On the other hand, there are at present 589 municipalities in the country.
Their size is very uneven, as it may go from 113 hectares (for the smallest) up to
21,375 hectares (for the biggest one) the average surface being thus 5,181 hec-
tares. The number of inhabitants also present strong variations: the actual figure
can move from more than 450,000 inhabitants (for the city of Antwerp) to just
one hundred (in the case of the town of Herstappe). The average figure ranges
around 17,400 inhabitants. It is also important to point that the distribution of the
municipalities among the three regions is not balanced, because the region of
Brussels-capital contains only 19 municipalities, while the Flemish region
counts 308 municipalities and the Walloon region has 262 municipalities.
As said before, the Regions, and not the «central» legislative or executive
powers, are today competent for deciding the organization and the legal regime
of «their» municipalities and provinces. This fact has a crucial legal consequence,
as there is not a single or even a homogeneous regulation of local government in
Belgium. On the contrary, municipalities will thus be organized and regulated in
a different way in Brussels, in Flanders and in Wallonia. At the same time, prov-
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inces will be organized and regulated in a different way in Flanders and in Wal-
lonia (as there is no province within the Region of Brussels-capital). In the light
of this legal variety, it is thus possible to find differences even in terminology, as
we shall find that municipalities can be called cities (villes) or towns (communes).
This is mainly a symbolic difference, whose origin goes back to the Dutch regime
(1815-1830), a time when this diverse names served at making a difference be-
tween rural and urban local authorities.
The relations between provinces and municipalities are hardly regulated in
the Constitution, which confines itself to providing that provinces manage the
provincial interests, while municipalities do run the municipal interests. This
constitutional wording allows supporting the view that there is no supremacy of
one type of local authorities over the other, or that there is even an organic link
among them, whatsoever. A logical way of legal thinking, though, requires to
understand that the municipal administrative regulations do respect the provin-
cial administrative regulations, and that they do not oppose them.
On the other hand, from 1836 the municipal legislation granted the provinces
an important role in the administration of the municipalities, and more specially
a role of administrative supervision (tutelle). Most frequently, this supervision
consisted of a kind of «first-line» role (suspension of municipal decisions, ob-
ligatory reports and opinions, etc.) while the definitive decision corresponded to
the national government. This type of role of provinces in the municipal life is
still maintained in the Walloon and Flemish municipal legislations.
Last but not least, it is important to stress that, although Belgium is institution-
ally articulated around the local powers represented by municipalities and prov-
inces, an important part of the management of local interests is ran by «third-
type» institutions, namely the inter-municipal associations, the public centers of
social action, the areas of police, and even the intra-municipal organs. The latter
represent a real and further decentralization of the municipal organs towards in-
tra-municipal organs, in order to compensate, in certain entities, for the too big
concentration of powers that has arisen from the mergers of municipalities.
3.1. The European Charter on Local Self-Government (ECLSG)
Belgium was one of the countries which allowed the opening for signature
of the ECLSG from 1985. However, the charter was only ratified by the Bel-
gian federal legislator several years later, namely by means of an Act of June
24th, 2000. This piece of legislation did not get published in the national Offi-
cial Journal ( Le moniteur Belge, in French; in Flemish: Belgisch Staatsblad; in
German: Belgisches Staatsblatt) until August 25th, 2004, after the ratification
of the text by the various competent legislative organs in Belgium. The charter
came into effect on December 1st, 2004.
48
Certain number of reservations were formulated by the Belgian legislator on

ratifying the Charter, which deserve attention. Thus, the application of the
Charter is limited to provinces and municipalities, thereby excluding other
types of local administrative organizations, such as the public centers of social
action (centres publics d’action sociale, in French). Moreover, Belgium re-
fused to be bound by articles 3 § 2, 8 § 2 and 9 § 2, 6 and 7, of the ECLSG, for
the following reasons:
(a) as regards article 3 § 2, the reason is that Belgium did not plan at the
time of ratification the fact that the executive, municipal body, be re-
sponsible in front of the assemblies of the elected representatives;
(b) as regards article 8 § 2, because the Belgian constitution itself estab-
lishes the existence of a control of conformity of local authorities’ ac-
tivities with the general interest;
(c) finally, reservations were also made to the application of article 9 § 2, 6
and 7 of the Charter, which deal with the financial resources of local
bodies, either own resources or delegated ones.
Apart from these reservations, by means of the ratification of the ECLSG,
Belgium has accepted the binding character of the Charter’s provisions in Bel-
gian law, since it has granted the consent to be bound by this treaty. The very
existence of the Act of ratification of the Charter (of June 24th, 2000) does not
require any other supplementary legal instrument, so that local authorities are
entitled to demand the respect of the provisions of the Charter. It is important
to notice that both the Walloon and Flemish Regional legislators clearly re-
ferred to the Charter during the adoption of their respective municipal and pro-
vincial «organic» Acts.
3.2. The Constitution and the organic Acts
As pointed above, the Belgian constitution recognizes and protects provinces

and municipalities as local institutions. The Constitution grants them the exclu-
sivity in the management of the provincial and municipal interests and imposes
in particular that the council (in both provinces and municipalities) will consists
of directly elected representatives. The constitution also contains the principle
according to which only the «law» can regulate the provincial and municipal
institutions. On the other hand, the law cannot eliminate all the provinces or all
the municipalities without a prior modification of the Constitution, even if it is
up to the «legislator» to modify the limits of the municipal territories (except
when these modifications of limits entail modifications of the linguistic bounda-
ries). The protection of the provincial institutions is even more guaranteed, since
their number and their legal name are enshrined in the Constitution. Thus, when
it was discussed to eliminate the province of Brabant (which comprised the re-
gion of Brussels-capital) it was necessary to modify the national Constitution.
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Pursuant to the Constitution, from 1836 until the inception of federalism in

the country, the legislator adopted separate legal texts to regulate local authori-
ties: on the one hand, a statute regulating municipalities (loi municipale); on the
other hand, a provincial Act (loi provinciale). Under Belgian constitutional
law, these pieces of legislation have a special nature, called «organic Acts»
(lois organiques), for the reason that they regulate essentially the determination
of the organs of those local bodies, their competencies and the essential admin-
istrative procedures to exercise these competences. As regards the municipali-
ties, the legislator entrusted the King - that is, the Government or Executive
branch- with the mission of codifying the aforementioned municipal law. That
is, to attain the highest possible coordination of the various scattered legal rules
concerning the functioning of the municipality which were in force at the time,
and which had been enacted over different decades. Therefore, a royal order of
June 24th, 1988, ratified by a law of May 26th, 1989, «codified» the aforemen-
tioned law, and was named as the «New municipal Act».
Nowadays, and since the full establishment of federalism and devolution in
the country, the Regions are the bodies competent to adopt the organic acts
regulating both municipalities and provinces, with the sole exception of the
municipalities having a special linguistic status.
Under the current constitutional arrangement, it is therefore possible to
identify in Belgium a group of federal legal rules, known as «New municipal
law» (nouvelle loi communale). However, the legal force of this legal rule is
very limited, as only some of its provisions, in a residual manner, will settle
certain aspects of the management of the municipalities having a special lin-
guistic status. Moreover, certain matters are also regulated by that «federal»
law, like matters of administrative police, which remain in the hands of the
federal government.
Beyond federal law, the bulk of the regulation of the organization and the func-
tioning of local government is therefore determined by three regional legislators:
(a) In the Walloon region, the «Code of democracy and territorial decen-
tralization» (Code de la démocratie et de la décentralisation territoriale
in French);
(b) In the Flemish Region, the Gemeentedecreet;
(c) In the Region of Brussels–capital, the traditional title «New municipal
law» (Nouvelle Loi Communale) has been preserved.
As it can be seen, the Regional legislation of Brussels-capital («New mu-
nicipal Act», nouvelle loi communale) has preserved the traditional name of
this type of local government laws, while in Flanders and in Wallonia new legal
terminologies have been adopted. What is more, the «New municipal Act» en-
acted by the Region of Brussels-capital is in fact modified by «regulations»
(ordonnances), which is the technical name of the legal rules that are approved
by the regional parliament of Brussels-capital.
50
As regards provinces, the Flemish region adopted a specific decree on these

second-tier local bodies, while the Walloon region has included specific provi-
sions on the matter in the above-mentioned «Code of democracy and the terri-
torial decentralization». As regards Brussels-capital, this region has no compe-
tencies on the subject, since the institution of the Province does not exist there
anymore. The only historical reminiscence is the existence of the office of the
«Governor» (gouverneur) and «deputy governor» (vice-gouverneur), whose
missions are regulated by federal rules.
3.3. The status of the capital-city
According to section 194 of the Belgian Constitution, the city of Brussels is

the capital of the country, and the seat of the federal government. It is thus advis-
able not to confuse the city of Brussels and the region of Brussels-capital. The
city of Brussels, as a local authority, is in fact only one of the 19 municipalities
which are present in the region of Brussels-capital. We shall admit however (fol-
lowing the opinion of Prof. Delpérée) that article 194 of the constitution «makes
the object of lax interpretations. Almost all municipalities located within the
Region of Brussels-capital do host political and administrative institutions be-
longing to the federal, executive branch»1. This assertion has even more sense
since, beyond the services of the federal executive, the region of Brussels-capital
and its 19 municipalities also constitute the seat of numerous organizations and
institutions of different nature: parliamentary, executive, regional, communitar-
ian and even international ones (likes the European Union).
Apart from this critical fact, the city of Brussels is not endowed with a spe-
cific administrative or legal status, which would make it different as compared
to any other Belgian municipality or, what is more, to any other municipality
within the region of Brussels-capital. At the most, its status of city-capital gives
it the right to having a privileged system of financing.

AUTHORITIES
4.1. Areas of local competence
The notions of «provincial interest» and of «municipal interest» are of fore-

most importance when it comes to define the domain of competencies of local
authorities in Belgium.
1
«fait l’objet d’interprétations laxistes. L’ensemble des communes bruxelloises accueille
des institutions politiques et administratives qui relèvent de l’exécutif au niveau fédéral».
(Delpérée: Le système constitutionnel de la Belgique, Larcier 1998, page 104).
51
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Indeed, these two areas of activities are obviously essential as regards the
competencies of the provincial and municipal organs. However, it must be no-
ticed that neither the ordinary legislation nor the Constitution define the content
of those key concepts in a general way. Accordingly, one could speak of «un-
named» competencies, by extension of the equivalent expression used in Civil
Law. In reality, the competencies pertaining to the municipal or provincial in-
terest are essentially defined by default, or in a residual manner. The compe-
tence will fit either the municipal or the regional level when the subject – matter
concerns the territory and the citizens of the municipality or those of the prov-
ince, as long as the «legislator» (either the federal, the regional or the commu-
nity one) will not have assumed the matter in a total or partial manner. In this
sense, the organization and the management of the police is an example of a
subject matter which is clearly of municipal interest, but which has been re-
cently re-conceptualized as being of «federal interest». This demonstrates that
the rule of the «provincial» or «municipal» interest is not enough to determine
the existence of a «local» competence, per natura.
Another conceptual element concerns the «attributed» competencies. Al-
though local authorities may get competences and carry out activities of mu-
nicipal or provincial interest that have not being retained by the other territo-
rial levels of government, it happens more regularly than these other levels of
power attribute or grant expressly certain competencies to the municipal au-
thorities. Thus, these competences will be «attributed» (Compétences at-
tribuées ) to the municipal authorities, either: (a) because they are considered
by the delegating authority (the federation, the region or the linguistic com-
munity) as touching the sphere of the municipal interest; or (b) because the
delegating authority understands that the competence will be managed in a
more effective way at the local level. In the case of «attributed» competen-
cies, the local authority will behave either as a decentralized or a de-concen-
trated authority, according to the wording of the delegating legal instrument
and according to the level of precision which will be given by the delegation
so granted.
4.2. Powers
Both provincial and municipal bodies enjoy the legal nature of «public law
authorities». Accordingly, they hold as such a wide array of powers and pre-
rogatives, both in the domain of regulation and in the domain of administrative
adjudication and decision on individual affairs.
As concerns the rule-making powers of local authorities, both the pro-
vincial and municipal authorities have in Belgium the capacity to adopt
regulations (règlements), that is, legal rules which regulate general and ab-
stract matters, rules of social behaviour for the present and for the future, to
use here the traditional definition of the Belgian Council of State (Conseil
52
d’Etat). However, the rule-making powers of local authorities can only be ex-
ercised in the regular domain of the management of the municipal interest when
the local bodies discharge competences that have been attributed explicitly to
them. Among the different fields were administrative, municipal regulation are
usual stand the following ones:
(a) The adoption of regulations in the domain of general administrative po-
lice;
(b) Regulations in areas of «special» administrative police (in French, po-
lice administrative spéciale) such as town planning, environmental pro-
tection, etc;
(c) Regulations concerning the legal status of the staff of the local au-
thority;
(d) Regulations in the domain of municipal taxes and other local fiscal
questions.
Apart from rule-making powers, and like the majority of governmental
agencies in most countries, municipalities and provinces enjoy a wide array of
adjudicatory powers. Therefore, and in the same subject-matters that have been
mentioned earlier, provincial and municipal authorities can adopt administra-
tive decisions (actes administratifs ) concerning questions such as the manage-
ment of the staff, the management of the assets and goods of the local authority,
the management of the territory or the behavior and the activities of the citi-
zens. On the other hand, and since Belgium is a country of Administrative law
tradition, municipal and provincial authorities have the power to impose sanc-
tions to individuals and firms, whenever they breach the local regulations by its
capacity to decide imposing «administrative penalties». These administrative
penalties will be decided either by the political organs of the local authority, or
even just by local civil servants.
4.3. Local services
The services that can be delivered by provinces and municipalities are enor-
mously varied. As a rule, they can be sorted into two classifications: (a) «com-
pulsory» or «optional» services, and (b) being of provincial or municipal initia-
tive or being attributed by another level of government (the federation, the
regions, etc.). In this domain, it is interesting to stress that, in an exceptional
way, the constitution itself entrusts municipalities with the activity of writing
the certificates of marital status (actes d’état civil) and the keeping of the public
register of births, marriages and deaths.
Besides, the municipal legislation imposes on cities and towns broad obliga-
tions of general administrative police, in order to guarantee the rest, the safety of
transit, the healthiness and the cleanliness of the local community. This attribu-
tion of responsibilities result from decrees adopted during the old French revolu-
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tionary times (1789-1790). Under the law it is clear that this allocation of respon-
sibilities is of a compulsory nature. Therefore, when municipalities fail to ensure
these obligations, they can be condemned by the courts to compensate for the
harmful consequences of their negligence or lack of action. On the other hand,
this general obligations on the side of local authorities entail an important dedica-
tion of means, both financial and human resources, particularly in the domain of
the management of the networks of public roads and the public spaces.
Next to it, a wide field of activity is reserved for municipalities in specific
and important areas, such as land use & town planning and environmental pro-
tection, both at the level of rule-making and adjudication. Education is another
decisive domain where municipalities have to intervene necessarily, at least at
a minimal level. Indeed, the development of a public and religion-neutral sys-
tem of education has triggered an important intervention of the local authorities
in this area of competence, which is largely subsidized by the three linguistic
Communities existing in the country, as mentioned supra. In this case, we are
talking about a competence which is compulsory in a partial way, but which on
the other hand is largely regulated by the central authorities (in this case, the
Communities), which grant the subsidies, that are an essential condition for the
exercise of this competence.
Finally, municipalities do carry out a series of initiatives and activities that
can be characterized as «optional» or «voluntary», in different fields such as
sports, economic activity, cultural events, social services, etc. These diverse
competences may adopt a more «compulsory» intensity, as long as they will be
subsidized by the other levels of government (regions, the federal state, etc.). In
particular, programs and initiatives conceived to strengthen the social links in
specific urban communities are very important, since they target at combating
certain types of urban violence.
5.1. Organisation of local authorities
Traditionally, the organs of the municipalities and the provinces constitute a

three-part structure. At the level of the municipality, since 1836, there are coun-
cilors (conseillers) the mayor (bourgmestre) and the aldermen (échevins). At
the level of the province, there is a provincial council (conseil provincial) a
standing committee (députation permanente) and a governor (gouverneur).
As said supra, following devolution, the Municipal and the Provincial Acts
were regionalized in such a way that the organizational reality of local authori-
ties may currently present divergences among regions. Besides, it has already
been pointed out that the province does not exist anymore in the region of
Brussels-capital.
54
The most important organs of municipalities are the council (conseil), the
executive organ (l’exécutif) and the presidency (la présidence), which are here
summarily presented:
(A) The council

According to the wish of the Belgian Constitution of 1831, the provincial
councilors and the local councilors are both directly elected representatives.
This election is made on the basis of an universal ballot, and according to a
proportional system of representation. The number of councilors is determined
by the law, according to the importance of the population. As regards provinc-
es, it goes from 47 members for the provinces of less than 250,000 inhabitants
to 84 members for the provinces of more than one million inhabitants. For the
municipalities, it goes from 9 members for the municipalities of less than 2,000
inhabitants, to 55 members in case of municipalities having more than 300,000
inhabitants.
The Council is generally considered to be the holder of the local «legislative
power». It is true that this body possesses the residual competence in all local af-
fairs, and especially for what concerns the rule-making power. Apart from that,
the council is generally in charge of competences or activities having a predomi-
nant adjudicatory nature, such as the affairs pertaining to the appointment of the
staff members, or the discipline of that staff, or the adjudication of public pro-
curement contracts. Besides, it is also possible to notice that in some areas certain
delegations of competences are possible from the council, in favor of the «colle-
giate body» (see, infra), this tendency being increasingly important in Flanders.
(B) The executive organ

The executive organ of municipalities receives different names. Classically,
the executive body at the municipal level was called «the collegiate body of the
mayor and the aldermen» (in French, Collège des bourgmestre et échevins) and,
at the level of the province «standing committee» (in French, Députation perma-
nente). Nowadays, though, in Brussels and in Flanders the name of the «colle-
giate body of the mayor and the aldermen» has been kept, while in Wallonia the
competences have been granted to the «municipal college» (collège communal).
For what concerns the province, Flanders has kept the classical denomina-
tion of «standing committee» (députation permanente), while in Wallonia this
name has been replaced by that of «provincial college» (collège provincial).
The number of members of the municipal executive is determined according
to the number of regular inhabitants of the city or town. It varies from 2 mem-
bers (in the municipalities of less than 1000 inhabitants) to 10 members in the
municipalities of more than 200,000 inhabitants. In this latter case, and in the
region of Brussels-capital, an additional member can be added to that precedent
figures, for reasons connected to the bilingual status of that region.
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At the provincial level, the number of members of the standing committee

(députation permanente) has been traditionally established at 6, which is still
the case in Wallonia.
For what concerns the «collegiate body of the mayor and the aldermen»
(collèges des bourgmestres et échevins), Flanders has established a specific
system which allows the municipal councils, at the beginning of their term of
office, to determine the number of members of the local collegiate body, within
a minimum and a maximum figure, which is provided by the law.
As a rule, the members of the executive organ are appointed by the council,
among those local representatives being already members of the said council.
A sensitive exception concerns certain municipalities having a special linguis-
tic status. Besides the classic grounds of termination of the office term (resigna-
tion, incompatibility, death), it has to be stressed that the link between the coun-
cil and the executive organ becomes a reality on the basis of a pact of majority,
the foundation of which is obviously the political confidence. Thus, the disap-
pearance of the political confidence between the council and the collegiate
body (by the success of a motion of censure, motion de défiance) can trigger the
end of the mandate of one single member of the executive organ, or of all the
members of that organ.
The essential competences of the collegiate body have an executive nature,
and take place in the running and management of the local administration. Usu-
ally, the competences are exercised in a collective way, and the individual ex-
ercise of a competence (by one single member) is rather exceptional. In face of
this legal consideration, the habit of the individualization of mandates has in
fact settled down and is recognized as such by the courts, in particular in cases
of liability for damages.
Traditionally, the presidency of the local organs was ensured as follows: (a)
The mayor chairs both the city council and the collegiate body of the mayor and
the aldermen; (b) The governor of the province chairs the provincial standing com-
mittee (députation permanente). In the provinces, the members of the provincial
council elect the president among themselves, and the said president chairs the
sessions of the provincial council. It is noticeable to point out that the mayor is
generally «appointed» by the central power, on the proposal of the city council. In
very rare cases, though, the central Government can appoint a mayor other than the
one that was presented by the council, or even not being a member of the said
council. Indeed, in Flanders the possibility exists that the municipal councils may
appoint someone other than the mayor as the president of the council.
5.2. Inter-municipal cooperation
As said earlier, the Belgian constitution entrusts the municipal and provin-
cial organs with the exclusive management of the municipal and provincial in-
56
terests. Thus, the question quickly arose as to which extent the management of
the said municipal or provincial interests could be awarded to organs others
than municipal or provincial organs, that is, in particular inter-municipal or-
ganizations.
Certain inter-municipal bodies and structures were created by the law al-
ready in 19th century, in particular for the capture and the distribution of the
water. However, the Constitution was not amended until 1921 to introduce this
matter. In particular, the Constitution was adapted so that it authorized several
provinces or several municipalities to get together, or to get associated for a
more efficient management of the municipal or provincial interest, with the
caveat that it remains forbidden for the affected provincial or municipal coun-
cils to deliberate in common. Since that time, the management by inter-munic-
ipal associations and joint activities has became dramatically important in a
whole series of domains (social services, culture, sports, technical and eco-
nomic activities, etc). On the other hand, the competence to regulate inter-mu-
nicipal associations and activities belongs to the Regions and not to the central
State. The main concern of regional legislators consists in ensuring that the in-
ter-municipal organization are actually controlled by the municipal political
representatives.
6. HUMAN RESOURCES
Belgian local authorities have different types of personnel (statutory em-

ployees, workers) at their disposal. They are recruited according to the applica-
ble administrative regulations which local entities may approve themselves,
under the control of the supervisory, higher authority (autorité de tutelle, see
infra, point 9). The law establishes that the staff hired by public authorities in
Belgium are statutory personnel (civil servants). This rule applies to all levels
of government and constitutes a general principle of the civil service in the
country. Therefore, it is also applicable to the public employees of municipali-
ties and provinces. Due to different reasons, in particular the increase of the
subsidies granted to the local civil service, local authorities resort more and
more frequently to hiring employees under contract. Today, the most recent
studies show that, in fact, a majority of public employees are hired under con-
tract. Besides, the applicable legislation can require municipalities to provide
for certain specific functions.
Traditionally, several specific staff positions had to be ensured at provin-
cial and municipal level. In the provinces, these were the positions of Secre-
tary (of the provincial council) and of Accountant-Comptroller. In the case of
municipalities, these special positions were that of Secretary (of the local
council) and that of Accountant-Comptroller. This obligation on the side of
local authorities still exists today and, in any case as regards the local civil
service, local bodies enjoy more and more freedom to ensure the carrying out
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of this positions under mandate (especially in the Flemish region and in the of
Brussels-capital). Besides, both the municipal and provincial organic legisla-
tion and the other set of applicable legal rules can indeed also require local au-
thorities to fill certain special staff positions. For instance, within the frame-
work of subsidized programs, the subsidy-granter (the Regions, for instance)
may put as a condition to grant the subsidy that the subsidized local authority
put in place specific structures, with specific staff positions.
For what concerns the daily management of the staff, the competencies of
local authorities remain very large, as long as they respect the limits which they
gave themselves or those imposed by the legislation. Local authorities do re-
cruit freely their staff, adjust their careers and can also put an end to their of-
fices. Contrary to what happens in other countries, in Belgium there are not
employees at the local level which are imposed by a superior authority.
A particular remark must be made as regards the local education. The fact is
that education is a domain which belongs to the different Communities present
in Belgium. These bodies have laid down very detailed rules in this field, not
only as regards the contents of the curriculum in schools, but also about the
status of the teachers, usually local employees. The respect of these conditions
is justified not only by the necessity of obtaining subsidies, but also and espe-
cially by the necessity of local authorities of being able to issue officially ap-
proved certificates, at the end of the educational programs.
In our view, it is evident that, by way of establishing the status of the teach-
ing personnel, the Community authorities have gone rather far away and have
thus limited the power of the local authorities to regulate the status, duties and
obligations of their own personnel.
7. FINANCIAL RESOURCES OF LOCAL GOVERNMENT
From a historical point of view, the financing of local authorities was es-
sentially connected to their fiscal autonomy. The Belgian Constitution of 1831
confirms effectively that both the province and the municipality have a proper
fiscal power and that this fiscal power can be exercised only by the council,
either provincial or municipal. Since 1860, the Belgian state authorities had to
react with regard to a local tax which assimilated to an actual, internal customs
tax, called «droit d’octroi», similar to an excise duty. This local tax was sup-
pressed in 1860 and, in order to compensate local authorities for the loss of in-
come that this abolition might trigger, state authorities established a mechanism
of general financing («financement général», in French) of the municipalities
and the provinces, known under the name of «Fund of municipalities» and
«Fund of the provinces». This type of general financing was recognized during
the reform of political institutions in Belgium, and responsibility for manage-
ment and regulation was entrusted to the three Belgian regions. Therefore, Bel-
58
gian Regions are nowadays responsible for the general financing of the mu-
nicipalities.
Next to the general system of local financing, there is obviously also the
possibility of subsidizing certain number of municipal activities. Again, on the
occasion of the reform of Belgian political institutions, it was clearly specified
that this type of subsidizing can be insured by each of the various levels of
power (federal, state, regions, communities) according to their respective com-
petencies and powers. In the light of the precedent lines, it can be said that in
Belgium the funding of local governments is structured on the basis of three
major prongs: (a) the local, fiscal autonomy; (b) the «general financing», and
(c) the financing by subsidies. It is difficult to identify neatly, in a comparative
way, which is the respective importance of each of these prongs (fiscal autono-
my and general financing, on one hand, and special financing of the other hand),
these sources fluctuate naturally every year. This issue is especially clear in the
case of subsidies for investments. In any case, it can be said that the municipal
tax system remains the essential source of local financing.
The most important local taxes are those hitting real estate properties (taxes
immobilières) and professional activities (taxes sur les revenus professionnels).
Next to it, municipalities may also raise may different local taxes, which may
have a two-fold aim: on the one hand, ensuring a complement to the local fi-
nances and, on the other hand, contributing to the implementation of certain
local public policies, like urban and land use policies (for instance, the tax on
abandoned buildings).
On the other hand, it is necessary to indicate that local authorities may
charge the citizens for the services that they provide to the population. These
local charges or fees are called «redevances» in French. The establishment of
these fees can not only seek income for the local treasury, but can also be cou-
pled in certain cases with wider concerns, as for example the problem of car
parking in cities.
The «general financing» of the municipalities stands as the second source of
funding of the municipalities, at the front of the financing by subsidies.
As said above, the third and last element of municipal financing are subsi-
dies. Certainly, the other levels of government (the state or the regions) may
take the initiative to finance directly, in certain circumstances, works of invest-
ment of which the local powers will take advantage and will manage in the fu-
ture. A good example of this form of financing is represented by certain federal
funds, invested in the municipalities of the region of Brussels-capital, to sup-
port the role of capital of the country that this region is called to bear.
For what concerns the provinces, the same structure of local financing ap-
plies, more or less, to them, with an important difference, in the sense that their
tax system articulates essentially around additional provincial amounts (estab-
lished on top of the real estate taxes) and of diverse provincial taxes. In this
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field, of course, difference may appear among the different regions. For in-
stance, in four out of five Flemish provinces, the different traditional provincial
taxes have been replaced by one single, general provincial tax.
An analysis of the different sources of income in the municipal budgets for
2009 allows to balance the various elements as follows:
– Fiscal income: 50,1%
– Funds and subsidies: 37,3%
– Own resources: 12,6%
These percentages are more or less identical in the three regions of the
country. For what concerns the provinces, we may analyze the situation in the
Flemish and in the Wallonian region. In 2010, the budgets of the Flemish prov-
inces showed the following figures:
– Charges and fees: 4,7%
– Loans and debt: 3,4%
And for the Walloon provinces:
– Charges and fees: 7,9%
– Loans and debt: 2,4%
Like any other governmental body, local authorities can naturally be the
owner or tenant of real estate property and other different public infrastructures.
The most important assets of which local bodies are the owners are doubtless
the public roads and streets. As in other countries, an essential distinction is
made in Belgium between two big types of local property: public domain (do-
maine public) and private domain (domaine privé), each one having a different
legal regime. The properties having the nature of public domain are regulated
by Administrative law, and they are classically considered as been outside the
commerce, that is, they cannot be sold or transferred to private individuals, as
they enjoy a special protection by the law. A particular statute, now integrated
into the judicial code, allows the identification of the local properties pertaining
to this legal category. To qualify as a «public domain» asset, it must be owned
by a municipality and be aimed or allocated to a public use or service (affecta-
tion du bien, in French).
Generally speaking, the trend is to consider that the «affectation» of a given
good to the public domain stands as the exception, since the general civil-law
60
principle governing property rights claims for the free circulation of goods and
assets. Accordingly, the legal presumption for any good or property belonging
to local authorities is that they are or «private domain», not public domain. Lo-
cal properties can be allocated to the public domain either by a specific legisla-
tive provision or by an administrative decision. In the first case, a good example
stands at article 538 of the Belgian Civil Code, which lists several types of local
properties as been of public domain. In the rest of the cases, the «affectation»
to public domain has to be accomplished by means of a specific decision taken
by the competent body, which can be obviously overturned by an opposite deci-
sion of the same authority.
On the other hand, when a local public authority lends or hires a given prop-
erty, its rights and duties are essentially regulated by civil law, and the judge
who will be competent to intervene in any potential legal claim will be the same
as the one who intervenes in any civil dispute between private individuals con-
cerning the same type of lawsuit.
The situation is different in the domain of public domain property: this type
of local property is normally intended to be occupied or used by the public au-
thority exclusively, and therefore its responsibility or obligations have a special
nature, regulated by administrative law.
For a better running of the local services, public authorities decide fre-
quently to allocate to a third, private party, the use of a good belonging to the
public domain. This technique can be accomplished by the mechanism of the
«concession» (concession d’un bien public), which gives the individual the
right to exploit on an exclusive basis a public property, with the payment of a
fee. Belgian legal scholars have discussed about the legal nature of this tech-
nique. The predominant view is that there is a contractual relation between the
local authority and the holder of the concession, but this is a particular type of
contract, which we could identify as a «public contract» in opposition to «pri-
vate contract». This contract will be characterized by the fact that the local
authority can modify or adapt the contractual clauses for reasons of public in-
terest.
Inter-administrative control of local authorities’ actions and decisions takes

different forms and can be exercised by several public administrations. To be-
gin with, and as seen above, federal, regional and community authorities may
decide to subsidize certain activities of the local authorities, and on this ground
they may, in an inherent way, carry out a certain control over the subsidized
local programs and actions. But apart from that, they have also certain specific
powers of administrative control and supervision, called «tutelle» in French. A
distinction must be made between the common «administrative supervision»
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(tutelle) which belongs to the Regions, on the one hand, and the one belonging
to the (three) Communities, and the Federal State, on the other. On the other
hand, we can make a distinction between «regular» o «common» supervision,
and «specific» supervision.
«Regular» or common supervision (tutelle ordinaire) covers the natural ac-
tivity of the local powers in the management of the municipal and provincial
interest and includes all their activities, as long as a given activity is not subject
to a «specific» supervision (tutelle spécifique). This kind of «regular» supervi-
sion is exercised by the Regions, since these bodies are competent to set the
rules governing the local administration, as it has been pointed out supra. On
the contrary, «specific» supervision over municipal and provincial activities
and programs may be exercised by the federal, community and regional au-
thorities, but is strictly limited to controlling how local bodies discharge the
competencies that have been allocated to them by the said «higher» territorial
governments. Different examples will help understanding this idea:
(a) Under the law, the Regions are the competent bodies in the matter or
urban policies and environmental protection. A given region may de-
cide to grant specific competences in this field to the municipalities lo-
cated in the region. In this capacity, the region may supervise or control
how municipal authorities do discharge the competencies received from
the regional government.
(b) The Communities, which are competent in the field of education, can
carry out a certain control on how local governments discharge their
competences in this domain, independently from the fact that the Com-
munites are the main subsidizers of educational programs.
(c) Finally, the federal authorities may control the manner how local pow-
ers exercise their competencies in the field of security, street crime, etc.
A key issue in the domain of administrative «tutelle» is which is its ac-
tual scope and its extension. As a rule, administrative supervision aims at
controlling that the activity of local authorities is in conformity not only with
the law, but also with the general interest. This is a basic principle, enshrined
in the Constitution since 1831, and this key aspect brought Belgium to for-
mulate a reservation in this matter to some provisions of the European Char-
ter of Local Self Government. However, one should not understand that the
control of conformity with «the general interest» purports to a supervision of
pure opportunity. On the contrary, the Council of State has declared that the
general interest is an objective concept which cannot be confused with the
simple «good will» of the supervisory authority. For these reasons, when the
controlling regional, federal or community authority intervenes on a given
local government action or decision, it has to motivate these intervention in
a careful and comprehensive manner, according to the criteria of the general
interest.
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As administrative «tutelle» over local authorities’ actions and decisions is

rather large, it is unavoidable to consider whether it is in contradiction with
the general principle of local autonomy. The fact is that, for the time being,
there is no substantive or particular debate as regards the compatibility be-
tween supervision (tutelle) and local autonomy in Belgium. The principle of
control, and its scope, have hardly evolved since 1831 and are largely ac-
cepted in the institutional habits of Belgium. However, and in a general way,
the «procedures» for carrying out these supervisory powers have been adapt-
ed to allow a greater respect for the autonomy and for the efficiency of the
local powers.
On the other hand, every person whose civil or political rights have been
affected by a decision or by the activity of a local authority has the right to bring
an appeal against the local body in the competent court. This possibility is open
to individuals and to «moral» persons and, in the latter case, both to «private»
and to «public law» entities.
Another element of inter-administrative control which deserves attention is

the question whether the supervisory authorities may suspend a decision taken
by a local body. In general terms, the power to suspend decisions and actions
adopted by the local governments is understood to be an inherent element of the
«regular» or general supervision (tutelle ordinaries). As seen above, this type
of supervision is the one applying to all decisions of local authorities, except
when the law establishes another type of supervision, which is usually more
stringent: for example, when a decision adopted by a local authority needs, in
order to be valid, to be approved by a «higher» level or government (in French,
tutelle d’approbation).
When the general supervision applies, the controlling authority can, at first,
suspend the decision, which opens the door for the local body to either maintain
its position, or to modify the contested decision. If the local authority maintains
its decision, the controlling authority may annul it, and in this case the affected
local authority may go to the courts to challenge this annulment.
When an authority that does not possess the power of administrative su-
pervision wants to counter a given decision adopted by a local authority, even
in the case of urgency, it cannot suspend the said decision by itself, and it
must bring a petition of suspension in the law-courts. It will be up to the ad-
ministrative court to decide whether the suspension should be granted or not.
As a rule, both the measure of suspension taken by a supervisory, administra-
tive authority, and the decision of suspension declared by a court must be
motivated.
Finally, a local authority can, if it so wishes, to create a local «ombudsman»,

which will hear from the citizens complaints of maladministration of the local
bureaucracy.
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10. PROTECTION OF LOCAL AUTONOMY
The special Act of March 9th, 2003, which amends that of January 6th, 1989
has dramatically widened the competencies of the Belgium Constitutional
Court. This court is now competent to analyze the conformity of a given «leg-
islative rule» (either a statute, an administrative regulation, etc.) with the prin-
ciple of municipal fiscal autonomy contained in the constitution (art 170).
Apart from that special judicial review, in Belgium the judicial protection of
local self-government is guaranteed either by the regular courts, under the final
jurisdiction of the Highest Court of Appeal (Cour de Cassation), or by the admin-
istrative courts, and more specially by the Council of State (Conseil d’Etat). The
«regular» courts are competent to refuse the application of «decisions and regula-
tions» which are not in accordance with the laws. This is a pure control of legality.
Therefore, a local authority which is negatively affected by a measure, a
decision or a regulation adopted by a «higher» government (the Community,
the Region or the federal State) which it considers illegal, can bring a lawsuit
before the «regular» courts, seeking a denial of application of the contested
decision. However, the capacity to annul or to quash administrative decisions
and regulations which are not in conformity with the Law is an exclusive com-
petence of the administrative courts and the Council of State. For this reason, if
a local power is affected by an administrative decision taken by a «higher» level
of government, which is deemed to be illegal, it can perfectly introduce a petition
for annulment in the Council of State. These controls of legality do not affect the
general competence of the «regular» courts to declare the responsibility of local
administration officials and bodies.
Belgium, as a full member of the European Union, has representatives with-

in the Committee of the Regions of the said union: 12 regular and 12 deputies
or substitutes. These delegates constitute a representative sample group not
only of regional and community powers, but also of the municipal governments
of Belgium. However, neither the municipalities nor the provinces participate
directly in the decisions adopted by the organs of the European Union. This is
especially true if one thinks that the representatives of Belgium within the
Committee of the Regions, legally speaking, do not need to be representatives
of municipal or provincial powers.
On the other hand, like in many other EU member states, Belgian local pow-
ers are directly affected and involved by the management of different EU funds.
For instance, a province or a municipality can benefit from European structural
funds via the regional European Development Fund (FEDER) or the European
Social Fund (FSE), but is not the immediate interlocutor of the European or-
gans which define the strategy on the subject.
64
The implementation of the financing stemming from these funds falls under
the responsibility of the federal and regional authorities. Once the overall fund-
ing strategy and the budgetary allowance have been decided, the specific fund-
ing makes the object of a shared approach. Seven-year operational programs
are planned by the member states and by their regions, in partnership with the
European Commission. These operational programs describe the fields of ac-
tivity which will be financed. These fields can be geographical or thematic.
Later on, the member states appoint the national bodies that will be responsible
for the management of these funds. In this capacity, they will be in charge of
selecting the projects, of redistributing the funding and of estimating the
progress and the results of the different projects included in any program.
Authorities of certification and audit are also designated, to control and to
verify that the spending is in accordance with the regulations governing these
funds. Within this well-structured framework, Belgian municipalities and prov-
inces can participate in the calls for the different projects, generally launched
by the regions. It is important to note that, depending on the budgetary strategy
that may be adopted within the framework of the several programs, local au-
thorities can have a direct access to financing, provided by the European funds.
In this case, the qualified interlocutors of the local powers are the associations
of cities and towns which are present in the three regions of the country. For
what concerns the actual impact of the regional, European funds in Belgium, a
recent study has stated that the weight of those subsidies, within the framework
of the structural funds and of the social cohesion fund, will amount to 0,5% of
its GDP(gross domestic product) for the period 2011 – 2013.
12.1. Local autonomy in Belgian case law2
(a) Rulings from the Cour de Cassation:

– Ruling of October 24th, 1887, Pasicrisie3 on 1887, I, 37
– Ruling of April 6th, 1922, Pasicrisie on 1922, I, 235
(b) Rulings from the Conseil d’Etat:
– Ruling number 1108 of October 22nd, 1951 (Ville de Comines)
– Ruling number 9763 of December 4th, 1962 (Blieck)
2
We include rulings rendered by the two most important regular Belgian federal courts: the
Cour de Cassation (court of last resort in non-administrative litigation) and the Council of State
(Conseil d’Etat), which is the court of last resort in the domain of judicial control of administra-
tive action. We also include rulings from the Conseil Constitutionnel (constitutional council),
which is the Belgian Constitutional Court.
3
Belgian Court cases reporter.
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– Ruling number 13658 of July 2nd, 1962 (Steenkiste)

– Ruling number 85916 of March 14th, 2000 (Gillion)
– Ruling number 106994 of May 24th, 2002 (City of Huy)
– Ruling number 124147 winnowing basket (horse trailer) 13 oktober
2003 (Zaak Delsard)
(c) Rulings from the Constitutional court:
– Ruling number 13 / 91, of May 28th, 1991.
– Ruling number 95 / 2005, of May 25th, 2005
– Ruling number 89 / 2010, of July 29th, 2010
12.2. Bibliography
Association de la ville et des communes de la Région de Bruxelles-Capitale

(Association of the city and the municipalities of the Region of Brussels-
capital): Nouvelle loi communale (last update: November 2010)
Association de la ville et des communes de la Région de Bruxelles-Capitale:
Manuel pratique des bourgmestres et échevins, 2011.
Association de la ville et des communes de la Région de Bruxelles-Capitale:
Vade-mecum de l’élu local. 2006.
Association de la ville et des communes de la Région de Bruxelles-Capitale,:
Les missions de la commune (last update, January 2007).
Union des villes et communes de Wallonie (Union of cities and municipalities
of Wallonia): La commune, 2006
Vereniging van vlaamse steden en gemeenten (Union of Flemish cities and
municipalities): De Gemeentegids.
Dossier of the «CRISP», issue 65, by Michel Collinge: La commune. August 2006
Die Keure: Praktisch handboek voor gemeenterecht, 10th editie (2009).
Dexia banque: Finances Locales. July, 2010
Collective books
Manuel de droit communal (Manual of municipal law). Editions Nemesis, 1992

Les communes à la croisée des chemins. La Charte, 2003
Mémento communal 2010. Editions Kluwer
Droit communal. Editions UGA, (annual edition)
Collection: La commune. Editions Van den Broele
66
Association of the city and the municipalities of the region of Brussels-capital:

www.avcb.be
Union of cities and municipalities of Wallonia: www.uvcw.be
Association of Flemish municipalities (Vereniging van vlaamse steden en ge-
meenten): www.vvsg.be
Official information and public services in Belgium: www.belgium.be
67
Chapter 3:
LOCAL GOVERNMENT IN THE REPUBLIC
OF BULGARIA
Alexander VODENICHAROV
The history of Bulgarian municipalities and local self-government has its

own specific and peculiar features. Bulgarian municipalities existed even be-
fore the restoration of Bulgarian statehood and the Liberation (1878). At that
time, the municipality was a church - school community and had no public le-
gal powers. The municipality was established as a legal institution by the Con-
stitution of the Principality of Bulgaria, adopted on April 16, 1879. (Prom.
SG.15|1 January 1893). Art. 3 stated that «the territory is divided into adminis-
trative regions, districts and municipalities. A specific law is enacted to regu-
late this administrative division self-government of municipalities». With this
declaration, self-government was initiated in municipalities for the first time.
Its historical evolution is a record of positive and negative phases in the devel-
opment of self-government at the local level. Several laws are significant to this
process, including the Rural Communities Act of 1886, the Urban Communi-
ties Act of 1886, the District Councils Act of 1907, etc. In 1911, the Constitu-
tion was renamed to the Constitution of the Bulgarian Kingdom.
The legal-historical genesis of local self-government is contained in a series
of basic laws of the country that were enacted at different times.
Thus, a special chapter entitled «Local bodies of state authorities» was es-
tablished in the Constitution of the People’s Republic of Bulgaria in 1947
(Prom.SG.284|6 Dec 1947) Article 48 stated that the bodies of national self-
government were the municipal, district and regional public councils, elected
by the population of the respective administrative-territorial unit. These elected
bodies were a kind of symbiosis of state power and self-government, and had
greater impact than earlier figures.
The Constitution of 1971 (Prom.SG.39| May 18, 1971) established a two-
step administrative territorial structure, consisting of municipalities and coun-
69
alexander vodenicharov
ties. «Public council» charters were set up. Electoral authorities in municipali-
ties and counties were considered to be public bodies of state authorities and
national self-government. The Executive Committee was established as an ex-
ecutive body of the Public Councils. The Executive Committee was elected by
the councils and was composed of the councillors.
The Constitution of 1991 (Prom. SG. 56|13 Jul 1991 with amend.), stipu-
lates a broad legal basis for extensive development of local self-government.
The constitution defines the content and forms of manifestation of local self-
government, and establishes the political and legal guarantees for its implemen-
tation. The Constitution also stipulates the constitutional legal status of the ma-
jor governing bodies at local level of government: the municipal council as the
governing body, and the mayor as the executive body.
The territory of the Republic of Bulgaria is divided into 246 municipalities

and regions. Other administrative territorial units and bodies of self-govern-
ment are established by law.
A municipality (in Bulgarian, община - obchtina) is a legal entity and is the
basic administrative territorial unit through which self-government is imple-
mented. Citizens participate in the government of the municipality through
their elected bodies of local self-government and, directly, through referen-
dums or general meetings. The municipality consists of one or more neighbour-
ing settlements, and the territory of the municipality is comprised of all its settle-
ments. The name of the municipality is the name of the settlement that is its
administrative centre. The boundaries of a municipality are established following
a public referendum. Municipalities are entitled to own municipal property, which
is to be used in the interest of the territorial community. A municipality has its own
budget. A municipality is a juridical person and a legal entity. There are 264 mu-
nicipalities in Bulgaria.
A region (област - oblast) is an administrative territorial unit that is respon-
sible for the development of regional policy, the implementation of state legisla-
tion on a local level, and the harmonisation of national and local interests. The
region consists of one or more neighbouring municipalities, and its territory is
determined by the territory of the municipalities included in it. The region is
named after the settlement that is its administrative centre. Regions are estab-
lished according to the following criteria: the physical-geographic specific fea-
tures of the territory; the presence of a town defined as a traditional cultural and
economic centre with established social and technical infrastructure and access
to other settlements of the region. The territory of the Republic of Bulgaria is
divided into 28 regions, whose boundaries and administrative centres are pro-
posed by the Council of Ministers and approved by an edit of the President.
70
local government in the republic of bulgaria
Local self-government is performed at the municipal level through two

elected bodies. The body of local self-government within a municipality is the
municipal council, elected directly by the population, for a term of four years.
The mayor is the body of executive power and he is elected directly by the
population, also for four years. At the regional level, each region is governed by
a governor, who is appointed by the Council of Ministers and is assisted by a
regional administration. The regional governor ensures the implementation of
the state’s policy, safeguards the national interests, upholds the law and ensures
public order, and exercises administrative control over local authorities (see
infra, point 9).
The territorial administrative subdivisions of municipalities are the mayor-
alties and the districts. While municipal councils and mayors are elected in the
municipalities, only mayors are elected in the mayoralties. A «mayoralty»
(кметство - kmetstvo) can be established in the territory of a municipality by
a decision of the municipal council. The mayoralty consists of one or more set-
tlements, and its territory is defined by the territory of the settlements included
in it. The mayoralty is named after the name of the settlement that is the admin-
istrative centre. The requirements for establishing a mayoralty are: stable popu-
lation of over 150 people in the settlements that form the mayoralty and the
capacity to fulfil the functions assigned by the municipality.
Quarters (район - rayon) are established in the capital and in cities with
over 300,000 inhabitants, and may also be established by decision of the mu-
nicipal council in towns with populations over 100,000 people. The territorial
division of the capital municipality and of the cities with populations over
300,000 inhabitants are endorsed by law. At present, there are 24 quarters in
Sofia (София), 6 in Plovdiv (Пловдив), and 5 in Varna (Варна). The territory
of the quarter is part of the territory that defines the boundaries of the town. The
name of the quarter is approved by an act of establishment. To establish quar-
ters, cities must fulfil the following requirements: active population of at least
25,000 inhabitants; capacity to develop regional planning according to current
general urban development plans (including compliance with natural or con-
structed divisions); and available infrastructure in the quarter to meet adminis-
trative, social and sanitary-hygiene needs.
Therefore, there is a two-step administrative-territorial division in Bulgaria.
Administrative territorial units include regions and municipalities and compos-
ite administrative territorial units of the municipalities, consisting of mayoral-
ties and quarters.
Apart from the administrative-territorial units, there are other territorial
units in Bulgaria, which can be called in English «settlements» and «settlement
formations». A settlement (населено място - naseleno miasto) is a historical
and functional territory, with a stable resident population, artificial or natural
boundaries, and social and technical infrastructure. Settlements are identified
as towns (град - grad) and villages (село - selo).
71
At the end of 2009, there were such 5302 «settlements» in Bulgaria, of

which, 255 are towns and 5047 are villages. At the moment, there is a tendency
toward an increase in population in towns: 72% of the population lives in towns
and 28% lives in the villages. Some hundred years ago, the situation was quite
different, with 80% of the Bulgarian population living in the villages.
The «settlement formations» (селищно образувание - selichno obrazu-
vanie) are territories outside the established boundaries of the settlements, and
were developed for specific functions, and defined by artificial boundaries.
They don’t have permanent residents. Territorial units differ significantly from
administrative-territorial units. They don’t have resident elected bodies of self-
government, nor ownership, a budget, administrative staff etc.
The Constitution of the Republic of Bulgaria stipulates that local self-gov-

ernment (местно самоуправление - mestno samoupravlenie) is a constitu-
tional principle. Specifically, art. 2 states that «the Republic of Bulgaria is an
integral state with local self-government (local government). No autonomous
territorial formations exist.» The great political and legal significance of this
constitutional provision is that it is included in Chapter I, which establishes the
«Fundamental Principles».
The fundamental constitutional-legal status of local self-government is stip-
ulated in Chapter VII of the constitution, on «Local self-government and local
administration». It determines the administrative territorial structure of the
country, and declares that: «A municipality is the basic administrative territo-
rial unit at the level of which self-government is practised». It is allowed prop-
erty ownership and its own budget. The mayor is the body of executive power
within a municipality while the regional governor heads the region.
The Constitution settles any doubt regarding the recognition of local self-
governing, by stressing its role in several articles:
– Art. 149 states that «the rule on competence suits between the National
Assembly, the President and the Council of Ministers, and between the
bodies of local self-government and the central executive branch of gov-
ernment» (para. 1, item 3).
– Art. 10 stipulates that all elections, and national and local referendums be
held on the basis of universal, equal and direct suffrage by secret ballot.
– Arts. 140 and 17 explicitly provide for the right of municipal ownership.
On the other hand, the Republic of Bulgaria ratified the Charter of Local
Government on October 3, 1994. The 37th National Assembly passed it on
March 17, 1995 (Prom. SG. 28|28 March 1995. The Charter became effective
on Sept. 1, 1995. The law stipulates that the Republic of Bulgaria is bound by
72
all paragraphs of Part One of the European Charter, with the exception of Art.
7, paragraph. 2.
Art. 5 para. 4 of the Constitution stipulates that any international instru-
ment that is ratified by constitutionally established procedure, promulgated
and made effective in the Republic of Bulgaria, is considered to be a part of its
domestic legislation. These instruments supersede any other domestic legisla-
tion that may be contrary. Therefore, the Charter is a part of the acting laws in
Bulgaria.
On the other hand, several pieces of legislation have been adopted based on
constitutional norms, which can be categorised into three groups. The first one
includes laws that are entirely devoted to interactions within local self- govern-
ment. The second group consists of legislative acts that include a large number
of specific rules, and the third group contains specific provisions relating to the
functioning of municipalities and municipal administration.
Thus, the Act prom. SG. 77/17 Sept. 1991, on local self-government and
local administration is of crucial importance. This statute was enacted on 17.
09. 1991 and has been amended and supplemented several times. It defines the
status of the municipality and its constitutive elements. The law determines that
«the territory of the municipality is the territory of the settlements, included in
it. Disputes over territorial boundaries of settlements are adjudicated by the
courts». The Act determines the status of the municipal councillor, mayor, mu-
nicipal administration, commissions of the municipal council, etc
The name of the municipality is the name of the settlement that is its ad-
ministrative centre, except in cases regulated by law, where the administrative
centres of settlements outside their territory are also administrative centres of
other municipalities. The population of a municipality consists of all its citi-
zens, who have permanent residency in its territory. The law states that the
activity of a municipal council, municipality mayor, of the district mayor, and
of the mayoralty mayor is supported by the municipal administration. Munici-
pal administration is structured according to directorates, departments and sec-
tors. Departments or sectors can also be set up as independent structural units,
outside the formal organisation of the directorates and departments. The mu-
nicipal council may establish the services of the municipal administration for
separate regions, mayoralties, settlements, or in parts thereof, according to
their functions.
It is especially significant that the above mentioned 1991 statute stipulates
the subject content and the scope of local self-government. Local government
is expressed as a right and a real alternative for citizens and the bodies elected
by them, to decide independently on all issues of local importance vested to
them by the law, such as:
1. Municipal property, municipal companies, municipal finance, taxes and
fees, and municipal administration;
73
2. Structure and development of the territory of the municipality and of its

settlements;
3. Education;
4. Health care;
5. Culture;
6. Public works and communal activities;
7. Social support;
8. Protection of the environment and rational use of natural resources;
9. Maintenance and the preservation of cultural, historic and architectural
monuments;
10. Development of sports, recreation and tourism.
The Local Government Act also allows the citizens to participate in the
management of the municipality through bodies elected by them and directly
through referendums and general meetings of the population.
Important significance is given to local self-government in the Law on Ad-
ministrative Territorial Structure of the Republic of Bulgaria (Prom. SG. 63/14
Jul 1995), that regulates the creation of administrative-territorial and territorial
units, as well as the introduction of administrative-territorial changes. It also
stipulates the types of administrative-territorial and territorial units, and regu-
lates the terms and procedures for establishing regions, municipalities, quarters
and mayoralties. An essential element of this procedure is the population’s in-
volvement in local government and the role of the municipal council. An exam-
ple of this is displayed in the procedure for establishing a municipality, which
is triggered by a citizens’ request and includes a local referendum. The same
key steps are established in case of changes in municipal boundaries.
Related to the above law on administrative structure is the Law for the Ter-
ritorial Division of the Capital Municipality and of the Big Cities (Prom. SG.
66/25 Jul 1995, as amended). This statute settles the territorial division of the
Capital municipality and of cities with population over 300,000 people:Plovdiv
(Пловдив) and Varna (Варна). The Law on Direct Citizen Participation in Gov-
ernment and Local Self-Government (Prom. SG, 14|12 June 2009, as amended)
regulates the conditions, organization and procedures for citizen participation in
local referendums, citizens’ initiatives at the local level and the General Assem-
bly of the population.
The Law on Spatial Planning (Prom. SG. 1/2 Jan 2001, as amended) explic-
itly denotes that municipal councils and the mayors of municipalities are part of
the framework of local competencies that determine policy and implement ac-
tions in spatial planning in municipalities. The Law of Civil Registration (Prom.
SG. 67/27 Jul 1999, as amended) gives municipalities and mayors a vital role
in the domain of civil status. The acts for civil status (marriages, births, deaths,
etc.) are compiled by the official for civil status of the municipality or the may-
74
oralty of the territory where the events have taken place. The mayor of the
municipality is in charge of the civil status registry for the territory of the mu-
nicipality.
Another relevant piece of legislation is the Act on Municipal Property
(Prom. SG. 44/21 May 1996, as amended), since it governs issues such as the
acquisition, management and disposition of municipal property, unless a spe-
cial law provides otherwise. Other pieces of legislation are also essential to lo-
cal self–government, like the Act on Concessions, (Prom. SG. 36/2 May 2006,
amended); the Regional Development Act, (in effect as of 31.08.2008, Prom.
SG. 50/30 May 2008, amended); the Act on Public Education, (Prom. SG.
86/18 Oct 1991, amend.); and the Civil Service Act (Prom. SG. 67/27 Jul 1999
amended).
Sofia is the capital of Bulgaria, but has no specific legal status. Art. 8 of the
Law of local Self-Government and Local Administration states that the capital
city is an administrative – territorial unit and also has a regional statute that al-
lows self government and the implementation of state policy for the develop-
ment of the capital
4. COMPETENCES, POWERS AND SERVICES OF LOCAL AUTHORITIES
In each municipality, the council and the mayor have a wide range of legal
competences and powers that are described in several laws.
To begin with, local authorities have the power of eminent domain and may
expropriate private property for municipal needs that cannot be met otherwise,
pursuant to the Law on Municipal Property. This action must be based on a
development plan, in force, that provides for the construction of local infra-
structures or buildings and must follow, if necessary, preliminary and fair mon-
etary compensation. Whole private properties or portions of them may be seized
if they are directly affected by the construction or have become inadequate for
development according to sanitary, safety, hygiene and fire safety regulations.
Detailed development plans are adopted by the municipal council, regard-
less of their scope. Fair monetary compensation is determined according to
market prices of properties of similar specifications, located in the proximity of
the alienated property, and according to the use of the properties prior to execu-
tion of the detailed development plan.
The municipal council has also regulatory powers. Art. 21, para. 2 of The Law
of Local Self-Government and Local Administration states that, in execution of
its powers the municipal council will approve rules, regulations, instructions, de-
cisions, declarations and notifications. Only regulations, instructions and deci-
sions have a regulatory nature. In issuing ordinances, the municipal councils may
establish administrative penalties for the wrongdoers. The council determines the
75
administrative corpus delicti and the corresponding punishments stipulated. The

breach of an ordinance can trigger monetary fines up to 5000 levs, and for sole
traders and legal persons, there are property sanctions up to 50,000 levs. A second
breach can also incur temporary deprivation of the right to engage in certain pro-
fessions or activities. The local authority’s power to impose administrative sanc-
tions is implemented entirely through administrative channels. The punitive de-
crees are issued by the mayor of the municipality or his deputy in a decision,
compiled by officials. In general, administrative liability is personal.
For what concerns services, the municipal administration provides a very
large group of administrative services to the population, that include a broad
range of topics.
The governing body in a municipality is the municipal council. Citizens

elect directly the members of the council by secret ballot, for a term of four
years. Elections are general, equal and direct. All Bulgarian nationals are eligi-
ble to vote if they are 18 by/or on election day, have not been legally denied the
right to vote, are not serving a prison term, and have resided in the municipality
for at least 12 months.
The right to elect municipal councillors and mayors is also extended to eve-
ry national of a Member State of the European Union, who is 18 by/or on elec-
tion day, has not been legally denied the right to vote nor is serving a prison
term, is a continuous or permanent resident of the Republic of Bulgaria, has
resided in the municipality for a minimum of 12 months, and has not been de-
nied the right to vote in the Member State in which he/she is a national. The
voter must also submit a written declaration, prior to the elections, stating his/
her wish to vote in the resident municipality. Bulgarian citizens who have no
other nationality other than one of EU Member State, are 18 by/or on the elec-
tion day have not been legally denied the right to vote, are not serving a prison
term, and have resided in the respective municipality for at least 12 months,
may be elected municipal councillor or mayor.
Individuals who are not Bulgarian citizens but are nationals of an EU Mem-
ber State have the right to be elected municipal councillor, providing they meet
the requirements listed in the preceding paragraph, and have stated, in writing,
their will to be elected.
Elections for municipal councillors are held on a proportional system. The
number of the municipal councillors is determined according to the number of
inhabitants per municipality as follows:
– up to 5000 inhabitants – 11 councillors;
– up to 10 000 inhabitants – 13 councillors;
76
– up to 20,000 – 17 councillors;

– over 160,000 – 41 councillors;
– the Capital municipality – 49 councillors.
The municipal council has many important competences. Among others, it
has the power to:
1. Create permanent and temporary commissions and elect their members;
2. Approve the total number and the structure of the municipal administra-
tion in the municipality, district and mayoralty, by proposal of the may-
or of the municipality;
3. Elect and dismiss the chairman of the municipal council;
4. Determine the mayor’s remuneration according to norms in effect, and
the resources to pay personnel salaries from the municipal budget, at the
proposal of the mayor of the municipality;
5. Adopt and amend the annual budget of the municipality, and implement
control and approve pertinent reporting;
6. Determine local fees;
7. Approve decisions on the acquisition, management and disposal of mu-
nicipal assets and determine the mayor’s (district and mayoralty) spe-
cific competences;
8. Approve decisions to create, transform and terminate commercial com-
panies with municipal assets and elect representatives of the municipal-
ity in these companies.
9. Decide on the usage of bank loans, lend no-interest loans, incurr mu-
nicipal debt by concluding loan contracts, and issue municipal securi-
ties or municipal guaranty bonds according to law.;
10. Approve decisions on creating and approving development plans and
their changes for the territory of the municipality or parts of it, pursuant
to legislation on spatial planning.
11. Approve strategies, projections, programmes and plans for municipality
development, in consonance with European policies for development of
local communities;
12. Determine requirements for individual and corporate body activities in
the territory of the municipality to ensure the protection of ecological,
historical, social, etc. characteristics of the settlements, and guarantee
adequate engineering and social infrastructure;
77
13. Approve decisions regarding the establishment and termination of mu-

nicipal foundations, and the management of granted property;
14. Approve decisions regarding the municipality’s participation in asso-
ciations of local authorities in the country and abroad, as well as in
other non-profit corporate bodies, and determine representatives of the
municipality;
15. Create districts and according to law;
16. Propose administrative – territorial changes in the territory and the
boundaries of the municipality;
17. Approve decisions for the naming and re-naming of streets, squares,
parks, engineering facilities, residential zones, resorts and resort locali-
ties and other sites of municipal significance;
18. Discuss and approve decisions on proposals by mayors of districts and
mayoralties on issues within their competences;
19. Approve decisions to conduct referendums and general meetings on is-
sues within its competences;
20. Approve the symbol and seal of the municipality.
For the execution of its powers, the municipal council approves rules, regu-
lations, instructions, decisions, declarations and notifications, and adopts regu-
lations for the organisation and activity of the municipal council, its commis-
sions and its interaction with the municipal administration. The municipal
council may elect an ombudsman who will safeguard the rights and legal inter-
ests of citizens in their dealings with local government and local administra-
tion.The organisation and activity of the ombudsman is controlled by regula-
tions adopted by the municipal council. The ombudsman is elected and
dismissed by a majority of 2/3 of the total number of municipal councillors.
The chairman of the council is elected among the members of the municipal
council by secret ballot. The candidate who receives more than one half the
votes of the total number of councillors will become chairman. The municipal
council may elect one or more deputy chairmen of the council. The chairman of
the council has many executive functions, as he: (a) summons the council to a
session; (b) oversees the preparation of the sessions of the council; (c) presides
over the sessions of the council; (d) coordinates the work of the permanent
commissions; (e) support the councillors in their activity; (f) represents the
council before external persons and organisations.
The mayor and the mayor of the mayoralty constitute the executive branch
of municipalities. Both figures are elected directly by the population for a term
of 4 years. Elections for mayors are held according to the majority system.
Mayors of quarters in the municipality of the capital and of cities having
quarter division are elected by secret ballot by the municipal council, following
a proposal from the mayor of the municipality. They serve for the term of office
of the municipal council.
78
The meeting for the election of quarter mayors is held within 14 days after the
first meeting of the newly elected municipal council. The elected candidate must
obtain more than half the total number of the votes from the municipal council-
lors. If none of the candidates receives the necessary votes to be elected, the chair-
man of the municipal council must convene a new meeting within 14 days.
The mayor of the municipality has many important powers and competenc-
es in the day-to-day running of the local authority. Thus, he or she must:
1. Manage all executive activity of the municipality;
2. Direct and coordinate the activity of the specialised executive bodies;
3. Appoint and discharge deputy mayors of the municipality, the mayors
deputies, heads of the municipal budget units, chiefs, and employees of
the municipal administration;
4. Impose disciplinary measures under law;
5. Assume the responsibility to maintain public order and issue written
orders to be carried out by the local police
5. Ensure correct management of the municipal budget;
6. Ensure fulfilment of long term programmes;
7. Ensure execution of the acts of the municipal council and submit semi-
annual reports to the municipal council on their implementation;
8. Ensure the fulfilment of the tasks, ensuing from laws and acts of the
President of the Republic of Bulgaria and of the Council of Ministers;
9. Monitor the legality of actions by the mayors of mayoralties and dis-
tricts in fulfilment of their functions; and impose any corresponding
administrative penalties;
10. Maintain connections with political parties, public organisations and
movements, and other bodies of local government in the country and
abroad;
11. Ensure the proper running of the civil registry by written order to the
mayors of mayoralties where civil registries are maintained or to the dep-
uty mayors or other official persons of the municipal administration;
12. Represent the municipality before individuals and corporate bodies, and
in court.
13. Ensure the organisation and technical support of the municipal council
and participate in its sessions with the right to vote.
On the other hand, the mayor of municipality is to present a management
program for the period of the mandate to the municipal council, within three
months after taking oath. The program must contain the general objectives,
priorities, activities, deadlines for fulfilment and expected results. The mayor
of municipality will also submit to the municipal council an annual report on
accomplishments of the program, no later than 31 January.
79
Municipalities may voluntarily join together to solve mutual problems and to

achieve mutual goals. To protect their common interests and to maintain and de-
velop local self-government, municipalities can establish national and regional
associations. At present, the following association have been established: the Na-
tional Association of Municipalities of the Republic of Bulgaria (Национално
сдружение на общините в Република България - Natsionalno sdrujenie na
obchtinite v Republika Balgaria) with members from the 264 municipalities in
the country, and 10 regional associations (see point 12.3, infra). The National
Association of the Municipalities has the right to represent its members before
state bodies; to develop proposals to change and improve the legal scheme of lo-
cal government; to prepare statements and proposals regarding the draft budget of
the country; to implement contacts and interactions with similar organisations
from other countries; to participate in international associations; and to imple-
ment other functions, determined by a law and by the foundation act.
Municipal cooperation cannot be institutionalized, however, municipalities
may cooperate with each other, and with regions and legal or natural persons to
establish associations to achieve objectives of mutual interest and to implement
actions pursuant to their competences. The objective of municipal cooperation
is to improve the quality of administrative services, to provide public services
to the population and to contribute to the development of their respective re-
gions through an effective use of existing resources.
The general principles of implementation of municipal cooperation are: vol-
untary action, mutual interest, active choice, flexibility and dynamism, and
transparency and responsibility.
Municipal cooperation is carried out under a signed cooperation agreement,
which is subject to approval by the municipal council. The cooperation agree-
ment must include a number of items, established by the law (parties under the
agreement; the scope and subject of the agreement; the objective of the agree-
ment; parties’ rights and obligations, etc.)
Finally, the non-profit associations in which the municipality participates,
may also carry out activities for public benefit.
6. HUMAN RESOURCES
The municipal council approves the total number of employees and the in-
ternal structure of the local administration, on the proposal of the mayor. Mu-
nicipal human resources are comprised of two categories of employees: civil
servants and contractual employees.
The legal status of civil servants is governed by the Civil Service Act. Their
status does not differ from that of any other civil servants who works in the
public administration. They perform their functions according to their official
80
legal relation with the administration, that is established in a Memorandum of

Appointment, issued by the mayor. The labor relation is for an indefinite period
of time unless otherwise indicated by law.
As a public employee, a municipal employee will generally occupy a per-
manent position in the local government and will assist the municipal council
and the mayor in performing their functions. Mayors and their deputies, and
those who perform technical functions in the administration, are not catego-
rized as civil servants. However, depending on the character of the official ob-
ligations and the degree of the professionalism, managers and experts who are
not civil servants may work as in local administration. Managers who occupy
the positions of Secretary of the municipality, chief of a general directorate,
head of directorate or head of an inspectorate are usually senior civil servants
of the municipal administration.
Experts can be called on to implement a service that supports the functions
of local self- government in the municipality. As municipal employees in their
capacity as civil servants, experts may be appointed providing they meet the
following requirements: (a) to be a Bulgarian citizen, a citizen of another EU
Member State, of another state that is a party to the Agreement on the European
Economic Area or a citizen of the Confederation of Switzerland; (b) to have
reached the legal age to work; (c) not been indicted for committing a crime that
requires imprisonment, or not been deprived, by due order, the right to assume
a certain position; and (d) to meet the specific requirements under laws and
regulations to hold the position.
The second category of local public employees are those persons who work
under labour contracts, and their legal status is governed by the Labour Code.
They perform their functions based on an individual employment contract. The
employer under this kind of contract is the mayor.
Civil servants of the municipal administration must pass a competitive exam
before they can be issued a service contract. No competitive system is used for
individuals who will work under an employment contract. None of the employ-
ees in the municipal administrations are directly appointed by the central ex-
ecutive authorities of the country.
The financial activity of municipalities is governed by several laws and reg-

ulations, and the following are of particular importance:
– The Law on Municipal Budgets (Prom. SG. 33/24 Mar 1998, amend.).
This law regulates the drafting, adoption, implementation, completion and
accounting for municipal budgets, budget ratios between the municipali-
ties and the central budget and the regime of the non-budget resources of
the municipalities.
81
– The Law on the Municipal Debt, in force form 01.06.2005, (Prom. SG.
34/19 Apr 2005, amended). This law regulates the conditions and the pro-
cedure for incurring in municipal debt and issuing municipal guaranties,
and specifies the types of municipal debt.
– The Lаw of Local Taxes and Fees, (Prom. SG. 117/10 Dec 1997, amend-
ed) defines the nomenclature of local taxes and fees.
Financial resources of local government are directly and immediately relat-
ed to the drafting, adoption, implementation, completion and accounting for the
municipal budgets. There are also non-budget resources of the municipalities.
The municipal budgets and the non-budget resources are administered by local
government bodies.
Art. 141, par. 1 of the Bulgarian Constitution stipulates that the municipality
will have a budget of its own. The municipal budget is an independent financial
account for the receipts and expenditures of the municipality for one budget
year. The municipal budget allocates and provides resources financing local or
delegated by the state activities. The financing of the local and delegated by the
state activities is carried out by the municipality to the interest of the local com-
munity and by observing the principles of lawfulness, expediency, effectiveness,
efficiency and publicity. The municipal budget is public and is monitored by the
municipal council and by other competent bodies, according to the Law.
The budget includes three groups of revenues of the municipality: The first
group includes own revenue from local taxes; local fees; services and rights
conceded by the municipality; municipal property; fines and sanctions; inter-
ests and forfeits; and other non-tax revenue. The second group includes revenue
from state transfers for subsidies; subventions; interest-free credits from the
central budget granted for financing expenses, including for the Value Added
tax, until their reimbursement under approved projects and programmes, fi-
nanced by the European Union. The third group includes revenue from trans-
fers between administrators of budget credits.
The budget revenue is derived from the collection of local taxes, local fees,
services and rights provided by the municipality, the management of municipal
property, the fines and real estate sanctions and interest, forfeits and other non-
tax revenue.
The expenditure section of the municipal budget includes budget credits for
financing local and state-delegated activities. The activities delegated by the
state and the standards of their cost, quantity and quality assessment are deter-
mined jointly by the respective minister, the National Association of the Mu-
nicipalities in the Republic of Bulgaria and the Minister of Finance, and they
eventually adopted by the Council of Ministers.
The law determines the standards used to calculate the total amount of re-
sources appropriated to municipalities and their distribution to finance state-
delegated activities for the given year. By decision of the municipal council, a
82
subsidy for state-delegated activities may be increased by using revenues from

the municipality in an amount equal to the subsidy.
As for expenditures, the municipal council determines the funds needed to
finance current and capital expenses for local activities, according to the types
of activities, and any state activity that must executed in compliance with stand-
ards. It will also examine expenses on interest, fees and commissions associat-
ed with the municipal debt. Payment of the principal of the municipal debt is
stipulated in the section on financing the deficit.
The municipal council adopts an ordinance that contains information on the
budget, the fulfillment of its objectives and accountability in its management.
The following local taxes are reflected in the municipal budget:
1. real estate tax;
2. inheritance tax;
3. donations tax;
4. tax on onerously acquired property;
5. tax on vehicles;
6. patent tax;
7. tourist tax;
8. other local taxes determined by law.
The municipal council issues an ordinance that determines the amount of tax-
es and relative terms and conditions, procedures, and any limitations for local
taxes and fees. The law defines the upper and lower limits of local tax, and allows
the City Council to establish the specific amount. If by the end of the preceding
year the municipal council has not determined the amount of local taxes for the
current year, taxes will be collected based on the amounts applicable as of 31
December of the preceding year. No adjustments to the amount and or method of
determining the local taxes will be allowed during the course of a year.
On the other hand, municipalities collect local fees for the following activities:
a) household waste;
b) use of markets, market-places, fairs, side-walks, squares and street lanes;
c) use of nurseries, baby food kitchens, kindergartens, specialized institu-
tions that provide social services, campuses, dormitories and other mu-
nicipal social services;
d) technical services;
e) administrative services;
f) acquisition of a cemetery plot;
g) possessing a dog;
j) other local fees determined by a law.
83
The municipal council fixes a price for all the services and benefits provided
by the municipality, with exception of above, the fees are set in compliance
with the following principles: reimbursement of full expenses to the municipal-
ity of for the service provided; creation of conditions to expand the offered
services and improve their quality and to achieve a more equitable way to exact
payment of local fees. The municipal council must adopt an ordinance that in-
forms the public about local fees and prices for services.
Art. 140 of the Constitution states that municipalities are entitled to own
property, that will be used in the interest of the territorial community. On the
basis of this provision, the Municipal Property Act (Prom. SG. 44/21 May
1996, as amended) was adopted, and sets forth the guidelines for the acquisi-
tion, management and disposition of municipal property, in absence of special
legislation.
The following assets are considered to be municipal property:
1. Properties and chattels defined by law;
2. Properties and chattels conceded in ownership to the municipality under
law;
3. Properties, whose ownership is restored to the municipality under condi-
tions and by order, under law;
4. Properties and chattels granted or bequeathed to the municipality;
5. Properties and chattels acquired by the municipality through voluntary
work and/or pecuniary resources of the population;
6. Properties and chattels acquired by the municipality through legal trans-
action, prescription or other means, determined by law.
Municipal property may be public or private. Public municipal property in-
cludes: properties and chattels, determined by law; real estate designated to imple-
ment the functions of the bodies of local government and local administration, and
other properties of local significance, designated for the permanent enjoyment of
the public, as determined by the municipal council. Private municipal property is
all other municipal property and chattels. Benefits and revenues from the property
and chattels of public municipal property are privately owned by municipalities.
Real estate and chattel designated as public municipal property, lands be-
longing to municipal land funds, and forests and lands of the municipal forestry
fund cannot be acquired by prescription, nor can they be alienated and trans-
ferred in ownership to third persons. Properties considered public municipal
property, can be encumbered with limited property rights as determined by law.
The acquisition, management and disposal of municipal ownership, are carried
out under the general management and control of the municipal council.
84
The municipal council issues an ordinance to determine the procedures for

the acquisition of the right of ownership, of limited property rights, provision
or management, and lease and administration of municipal properties. The
powers of the mayor of a municipality or a region and the mayors of mayoral-
ties and deputy-mayors is also contained in an ordinance of the municipal coun-
cil that is subject to the provisions of the Law of Municipal Property and those
of other special laws.
The regional governor exercises control over the legality of the decisions
and measures issued by the municipal councils, unless otherwise provided by
law. The governor can recall unlawful measures for new consideration by the
municipal council or to dispute them before the pertinent administrative court.
The appeal suspends the enforcement of individual and general administrative
acts and the application of sub-legislative legal acts, unless otherwise resolved
by the court. These powers are granted by Art. 45, para.4 of the Law of Local
Government and Local Administration.
The regional governor can suspend illegal acts adopted by the mayors, within
14 days after being notified of the act. The governor’s control is limited only to
aspects of legalitity of the contested decision. Any issues beyond this jurisdiction
fall under the category of expediency or opportunity. Both the lawfulness and the
expediency of an administrative decision may be contested by a complaint, ac-
cording to the rules laid down by art. 32, para. 2 of the Administration Act.
On the other hand, citizens and organizations have the right to contest an
administrative measure of the municipal council or the mayor before the ad-
ministrative court, if they believe that their rights, freedoms or legitimate inter-
ests have been breached or threatened. The term «organization» refers to a legal
entity or an association of legal entities or natural persons that is identified as
such by law. The administrative decision may be contested before the court
without prejudice of the right of the claimant to file a petition to the regional
governor.
For what concerns maladministration, the Ombudsman of the Republic of
Bulgaria has specific functions regarding municipal councils and mayors of
municipalities. Pursuant to the Law of the Ombudsman (effective as of
01.01.2004. Prom. SG. 48/23 May 2003, amend.) the Ombudsman may inter-
cede in a case when action or lack of action affects or violates the rights and
freedoms of the citizens by the state and municipal bodies and their administra-
tions, as well as by persons to whom public services are assigned.
Specifically, the Ombudsman accepts and considers complaints and warn-
ings of any violation of rights and freedoms by government bodies or other
government affiliated persons; inspects complaints and other indications of vi-
85
olations; sends written replies to petitioners within a stipulated period of time;

proposes and recommends restoration of violated rights; acts as an intermediary
to reconcile differences between the administration and the injured party; and
proposes and recommends the removal of the reasons and conditions that
prompted the violation of rights; and other actions. The Ombudsman may act
on his/her initiative if there is evidence that existing conditions do not guaran-
tee the protection of citizens’ rights and freedoms.
The municipal council may elect an Ombudsman, who will safeguard the
rights and legal interests of citizens before the bodies of local government. The
organization and activity of the Ombudsman are controlled by regulations
adopted by the municipal council. The Ombudsman is elected and dismissed by
a majority vote of 2/3 of the total number of municipal councilors.
10. THE PROTECTION OF LOCAL GOVERNMENT
There are different ways of protecting the interests of municipalities depend-

ing on the legal instrument that affects them. In the case of laws that violate the
principle of local self-government and its various particular manifestation, the
Constitutional Court is called upon to establish the constitutionality of those
laws. If an individual or general administrative act establishes obligations or
directly affects the rights, freedoms or legal interests of municipalities, com-
plaints may be processed by administrative order before sending them to the
immediate superior administrative body. Municipalities may also lodge a com-
plaint against an administrative decision issued by other governmental agencies.
Both the lawfulness and the suitability of an administrative decision may be
contested by complaint. The prosecutor may lodge a protest only against the
lawfulness of the administrative decision affecting the municipality.
If the case is complicated by factual or legal matters, a commission may be
called to investigate the case. The commission consists of at least three mem-
bers, one of which holds a law degree and the remaining two must be specialists
in their fields. At lease one of specialists cannot be working for the administra-
tion involved. The commission will review the case file and the written of evi-
dence sustaining the complaints and objections, or request new evidence if nec-
essary, and will present a grounded written opinion on the lawfulness and the
suitability of the contested administrative act. Within two weeks after receipt of
the file, if it is an individual case, or one month, if it is collective case, the com-
petent reviewing body will issue a grounded decision after examining both
sides of the case, and will declare the contested act void, or partially or wholly
repealed if it is unlawful or unsuitable, or dismiss the complaint or the protest.
The competent authority to review the case must resolve the matter on its
own merits, unless the act falls within the specific competence of the lower
body. If the administrative body has unlawfully refused to issue a document to
86
the competent municipal authority for review of the complaint, or the plaintiff
demands that it be issued, a period of time will be established for the document
to be presented. The parties other interested interveners will be immediately
notified as to the decision of the competent municipal authority that has re-
viewed the case. Once the case has been ruled on by the competent municipal
authority, the municipality may take the case to court.
Art. 135, par. 3 of the Constitution states that а municipality is a legal entity
and may participate in judicial proceedings. The Constitution affirms that a mu-
nicipal council is free to challenge any act that encroaches on its rights, before a
court (Art. 145). A municipality may participate in a claims procedure to recover
a lawful right if it is violated, or to determine the existence or non-existence of a
legal relationship or right, if clarification is needed. Civil cases in which the mu-
nicipality is a claimant, are under the jurisdiction of the district or regional lower
courts. Proceedings for civil cases are regulated by the Code of Civil Procedure
(effective as of 01.03. 2008, Prom. SG. 59/20 Jul 2007, as amended).
Municipalities may also file law suits against administrative decisions taken
by the competent state bodies, affecting their rights, freedoms or legitimate in-
terests or unlawfully delegation duties. These proceedings fall under the juris-
diction of the administrative courts.
Administrative courts hear cases involving the issuing, amendment, cancel-
lation or annulment of administrative adjudications; the declaration of invalidity
of municipal agreements; protection against ungrounded actions and inactions
of the administration; protection against unlawful enforcement; compensation
for damages from unlawful acts, actions and inactions of administrative bodies
and officials; etc.
The municipality may request that the court establishes the existence or the
non-existence of an administrative right or legal relationship when the municipal-
ity has an interest in this and has no other means of protection. The lawfulness of
an administrative decision affecting municipalities may also be contested before
the court. The ruling will take into consideration the following aspects:
1. The initial, individual administrative adjudication, including the refusal
to issue it;
2. The decision of the higher administrative body, cancelling or amending
the contested adjudication under item 1;
3. The decisions concerning requests to issue documents that are vital to the
recognition, exercise or redemption of rights or obligations.
The administrative decisions may be challenged in their entirety or in sepa-
rate parts. The grounds for contesting administrative decisions on behalf of the
municipalities include, among others: (a) lack of competence; (b) lack of con-
formity with established legal forms; (c) essential breach of administrative and
procedural rules; (d) contradiction with material legal provisions; (e) non-com-
pliance with the purpose of the law.
87
Municipalities have also the right to contest administrative decisions that

breach or threaten rights, freedoms or legitimate interests or raise obligations. The
act may be contested before the court and will not extinguish the right to demand
a reply by administrative order, unless this right is not permitted under the law.
If the municipality, as a legal entity, suffers material damages from a crime
that is subject to prosecution, it has the right to participate in the criminal pro-
ceedings as a private prosecutor. It may also file a civil claim for compensation
for damages and establish itself as a civil claimant in court proceedings.
The Bulgarian delegation in the EU Committee of the Regions consists of

12 delegates and 12 alternate members. All members are elected and respected
municipal mayors. It is particularly significant that the President, Vice Presi-
dents and members of the board of the National Association of Municipalities,
as well as the Chairmen of regional associations of local authorities may also
take part in it.
The National Association of Municipalities performs the functions of the
delegation secretariat. This was an appropriate management decision, since the
decisions of Congress and the good practices of local authorities in other coun-
tries quickly find their way to Bulgarian municipalities where they are imple-
mented. The National Association succeeded in promoting and acquiring posi-
tive experiences, effective actions and innovation processes for good governance
at the local level. This National Association’s activity helps to improve the ef-
ficiency of activities by municipal councils and municipal administrations, and
enriches and deepens the concept of local self-government.
Bulgarian representatives actively participate in the activities of the Con-
gress of the Regions and in its working groups. The reports presented by dele-
gates at the meetings of these subsidiary bodies are usually received with great
interest.
12.1. Landmark decisions of the Constitutional Court
DECISION № 15 of December 21, 2010 on the Constitutional case № 9 of

2010, (Prom. SG 5 of 14. 01. 2011);
DECISION № 13 of December 15, 2010 on the Constitutional case № 12 of
2010, (Prom. SG 5 of 14. 01. 2011);
DECISION № 6 of 29 September 2009 on the Constitutional case № 7 of 2009,
(Prom. SG. 80 of 09. 10. 2009);
88
DECISION № 1 of March 7, 2006 on the Constitutional case № 8 of 2005

(Prom. SG. 23 of 17. 03. 2006);
DECISION № 12 of November 21, 2002 on the Constitutional case № 16 of
2002(Prom. SG. 112 29. 11. 2002);
DECISION № 2 of January 18, 2001 on the Constitutional case № 10 of 2000,
(Prom. SG. 9 of 30. 01. 2001);
DECISION № 9 of 21 September, 2000 on the Constitutional case № 6 of 2000,
(Prom. SG. 80 of 03. 10. 2000);
DECISION № 12 of August 24, 1999, on the Constitutional case № 12 of 1999,
(Prom. SG. 77 of 31. 08. 1999).
12.2. Selected bibliography
Балабанова, Христина: Местно самоуправление и местна администрация

Варна, ТедИна, 1996.
Великова, Мария: Политики и практики в местното самоуправление:
Местна финансова е инвестиционна политика, Варна: Унив. изд. Вар-
ненски свободен унивeрситет. «Черноризец Храбър», 2008.
Величков, Иван; Елена, Ставрова: Финансиране на местните органи за са-
моуправление, София, ЕкоПринт, 2004.
Воденичаров, Александър: Общинско право, Благоевград, Югозападен
университет «Неофит Рилски», 2001.
Каменова, Цветана, ред: Правен режим на социалните дейности в община-
та, София, Национално сдружение на общините, 2002.
Къндева - Спиридонова, Емилия. ред. Администрация на местното упра-
вление, София, Национално сдружение на общините, 2001.
Местно самоуправление и местна администрация.: Сборник нормативни
актове. София: Сиби, 2008.
Миланов, Живко: Местното самоуправление, София, Юриспрес, 2001.
Монев, Петко: Местно управление и самоуправление, Варна, Наука и ико-
номика, 2004.
Сивков, Цветан: Общината, София, Сиби. 2002.
Спасов, Борис: Общинско право, София, Юрпспрес, 2003.
Стефанова, Милена: Местна власт и местно самоуправление, София, Ари-
адна, 2003.
Хаджолян, Масис: Взаимодействие на териториалните органи на изпълни-
телната власт на местното самоуправление и на техните администрации
89
(правни аспекти), Варна, Варненски свободен унивeрситет. «Чернори-

зец Храбър», 2002.
Чавдарова, Гинка: Система на общинските финанси и насоки за нейното
реформиране, София, Национално сдружение на общините, 2005.
Чавдарова, Гинка: Капацитет на местните власти за участие в планиране-
то и изпълнението на проекти по структурните фондове на Европей-
ския
Съюз, София: Национално сдружение на общините, 2007.
National Assembly of the Republic of Bulgaria: http://www.parliament.bg/

President of the Republic of Bulgaria: www.president.bg
Council of Ministers of the Republic of Bulgaria: www.government.bg;
Ministry of Regional Development and Public Works: www.mrrb.government.bg;
Ministry of finance: www.minfin.bg
Ministry of the Interior: www.mvr.bg
Constitutional court: www.constcourt.bg
Supreme Administrative Court: www.sac.government.bg
National association of Municipalities in the Republic of Bulgaria (NAMRB):
www.namrb.org; e-mail: namrb@namrb.org
Regional association of municipalities Trakia: www.ram-trakia.org
Regional association of Mountain Municipalities in the Republic of Bulgaria:
www.bulmonte.org
Association of South Western Municipalities: www.aswm.net
Union of the Bulgarian Black Sea Local Authorities (UBBSLA): www.ubbsla.org
Regional association of Danube River Municipalities: en.adodunav.org
Yantra regional Association of Municipalities: www.veliko-turnovo.com/yan-
tra/ ram-yantra.eu
Association of Municipalities of Southern central district «Hebar»: www.he-
bar-bg.org
Regional Municipalities Association «Maritza»: www.maritza.info/EN/
Regional Association of Municipalities «Central Stara Planina»: www.rso-csp.org
90
Chapter 4:
LOCAL GOVERNMENT IN CYPRUS
George COUCOUNIS
1. BRIEF HISTORIAL EVOLUTION
1.1. Before independence
The municipality as an institution, in Greek: demos (δήμος, pl. δήμοι), ex-

isted in Cyprus during the Ptolemaic Period and the Roman Period.1 Cyprus
was governed by a General - Governor and the existence of municipalities indi-
cates that towns had a degree of autonomy to decide on various issues of their
concern. During the Ottoman occupation (1571 A.D. – 1878 A.D.) and particu-
larly after the reform of 1839 A.D. (tanzimat) and the Emperor’s order of 1856
A.D. (humayun), Cyprus was given some local autonomy. Each of its 16 sub-
districts had a local council with basic functions.2
As a result of the British colonisation of Cyprus (1878 A.D. – 1960 A.D.),
Law IV/1879 was enacted, allowing the whole island of Cyprus to become a
single region, ruled by the High Commissioner.3 The most important legislation
was Law VI/1882, which provided for the existence and function of munici-
palities and municipal councils in each town. Also important was Law
VIII/1885, which regulated the duties, rights and powers of the municipalities,4
under the control of the British. In this period there were different types of local
government units:
1
«Μεγάλη Κυπριακή Εγκυκλοπαίδεια» 4ος Τόμος, Φιλόκυπρος Εκδοτική Εταιρεία
ΛΤΔ, 1986 (in English «Great Encyclopedia of Cyprus», 4th Volume, Filokypros Publishing
Company Ltd, 1986)
2
idem
3
��
«Η Τοπική Αυτοδιοίκησις εν Κύπρω», Κρίτων Τορναρίτης, Λευκωσία 1972 (��
in Eng-
lish «Local Self-Government in Cyprus», Criton Tornaritis, Nicosia 1972)
4
«Μεγάλη Κυπριακή Εγκυκλοπαίδεια» 4ος Τόμος, Φιλόκυπρος Εκδοτική Εταιρεία
ΛΤΔ, 1986 (in English «Great Encyclopedia of Cyprus», 4th Volume, Filokypros Publishing
Company Ltd, 1986)
91
george coucounis
(A) The Municipalities: The previous laws on municipalities were abol-

ished and substituted by the Municipal Corporations Act 26/1930. The
six towns of Cyprus were declared urban municipalities and the ten
large villages were declared rural municipalities. Each municipality
constituted a legal entity consisting of the mayor, deputy mayor, mem-
bers of the municipal council, and citizens.
(B) The Village Authorities: The village authority consisted of the
«Mukhtar» (chairman) and the «Azas» (members), who were elected
by the male inhabitants of the village. The Mukhtars Law XV/1891
abolished the electoral system and introduced the appointment system.5
In 1931, the Village Authorities Law was passed, and regulated the ap-
pointment and duties of Mukhtars and Azas.
(C) Village Health Commissions: In 1936, the Public Health (Villages) Act,
Cap. 259 was passed and established a Village Heath Commission in
every village where the law applied. The Commission was composed of
the «Mukhtar» and the «Azas» from each village.
(D) The Improvement Boards: In 1950, certain villages were declared
«improvement areas» by the Act 12/1950, and were later governed by
the Villages (Administration and Improvement) Act, Cap. 243. The du-
ties of the board surpassed those of the village authority and included,
among others, the power to issue by-laws.6
1.2. Independence an the Constitution
Cyprus became an independent Republic on 1 October 1960, a member of

the Council of Europe in 1961, and a member of the European Union on 1 May
2004. During this period, the most important developments concerning local
government may be summarised as follows:
1.2.1. Provisions for Separate Municipalities
One of the main issues Cyprus faced following its independence was the
separation between Greek-Cypriots and Turkish-Cypriots municipalities, which
was addressed and regulated in the Cyprus Constitution.7 Article 173 provided
5
��
«Η Τοπική Αυτοδιοίκησις εν Κύπρω», Κρίτων Τορναρίτης, Λευκωσία 1972 (�� in��
��
Eng-
lish. «Local Self-Government in Cyprus», Criton Tornaritis, Nicosia 1972)
6
��
«Η Τοπική Αυτοδιοίκησις εν Κύπρω», Κρίτων Τορναρίτης, Λευκωσία 1972 (�� in��
��
Eng-
lish. «Local Self-Government in Cyprus», Criton Tornaritis, Nicosia 1972)
7
«Σύνταγμα Κυπριακής Δημοκρατίας» – Ανδρέα Νικόλα Λοϊζου, Λευκωσία 2001,
ISBN��
: 9963-8654-0-2 (��
in��
��
English��
.«��
The��
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Constitution��
��
of��
��
the��
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Republic��
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��
Cyprus��
» – Andreas��
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Nic-
ola Loizou, Nicosia 2001)
92
local government in cyprus
that separate municipalities would be created in each of the five largest towns
of Cyprus. The council of the Greek-Cypriot municipality was to be elected by
the Greek-Cypriot voters and the council of the Turkish-Cypriot municipality,
by the Turkish-Cypriots. This provision was temporary, subject to review,
within four years, by the President and Vice-President of the Republic.
Meanwhile, the Constitution (article 178) declared that a special provision
should be made that would allow, as far as possible, proportional representation
of the Greek and Turkish communities in the municipalities’ governing bodies.
It also made provisions for the separate taxation of the members of each com-
munity (article 174), the issuing of permits by the municipalities (article 175),
the enactment of laws regarding town planning (article 176), and the compe-
tences of the municipalities (article 177).
1.2.2. Inter-communal conflicts
The establishment of separate municipalities aggravated the tension be-

tween the two communities existing in the island (Greek-Cypriots and Turkish-
Cypriots). As a result, inter-communal fighting erupted in December 1963,
leading the Turkish-Cypriots to regroup in enclaves in certain towns and vil-
lages. Moreover, the Turkish-Cypriots abstained from participating in any gov-
ernmental function, and Turkish-Cypriot who were members of the House of
Representatives intentionally did not participate in the House meetings. Since
then the buffer zone, known as the «Green Line», divides Nicosia, the capital
of Cyprus. These events created an unforeseen and emergency situation leading
to a constitutional deadlock.
1.2.3. The doctrine of necessity
Faced with these circumstances, the doctrine of necessity was invoked,

which gave legitimate power to pass laws to only the Greek-Cypriot members
of the House of Representatives, and no participation by the Turkish-Cypriot
members. The issue was raised before the Supreme Court of Cyprus in the land-
mark decision of The Attorney-General of the Republic v. Mustafa Ibrahim and
others8, regarding the constitutionality of a law passed by the Greek-Cypriot
members of the House of Representatives. The Supreme Court of Cyprus de-
cided that despite the constitutional deadlock, the State prevails and there is a
need for proper government.
In 1964, based on the doctrine of necessity, the Municipal Corporations
Law, Cap. 240, was re-enacted, making provisions for the municipalities, their
(1964) C.L.R.195
8
93
george coucounis
competences for municipal administration and various other matters. The Vil-
lages (Administration and Improvement) Act, Cap. 243 remained in force, as
well as the Village Authorities Act of 1931, Cap. 244.
1.3. The Establishment of the Current Laws and proposed legislation
The cornerstones of the institution of local self-government in Cyprus are

the Municipalities Act 111/1985 and the Communities Act 86 (I)/1999, which
govern and regulate the municipal and community councils’ functions. In the
short future, chances are that local self-government will be strengthened by
new legislation that will give more powers and competences, now vested in
the State, to local authorities. The main aim is to make local self-government
capable of meeting the needs of a modern, complex and multi-cultural soci-
ety. The reform will establish groups of local authorities as legal entities of
public law, merge municipalities and communities, and establish district
councils, which will form the second tier of local self-government. A new law
on local authorities was submitted by the Minister of the Interior to the House
of Representatives in February 2011, to be passed and enacted under the
name of «The 2011 Local Authorities and Complexes Act». Another new
piece of legislation was presented to the House of Representatives to be en-
acted, and refers to the creation of District Councils, which will form the
second-tier of local self-government. With the ratification and enactment of
the proposed law still pending, it is worth mentioning the following innova-
tive provisions:
1.3.1. Complexes
One of the fundamental reforms is the establishment of «complexes» by

municipalities and/or communities, which will contribute to strengthening and
supporting local authorities. The local authorities and the complexes will be
legal entities of public law. The creation of complexes is aimed at the proper
use of resources and improvement in the quality of services provided to the lo-
cal population, especially in small communities where there are insufficient
resources or staff. Cooperation between municipalities and communities will
be promoted, local authorities will operate in a more transparent manner, and
the public will be encouraged to participate more in local affairs.
1.3.2. Voting Rights, Participation and Transparency
Another innovation is the granting of the right to vote to any citizen of a

third country who has acquired an immigration permit or the status of a long
term resident. On the other hand, every council of a local authority or complex
94
will encourage and promote the participation of its inhabitants in local affairs as
well as search, identify, record and resolve problems in the area. The inhabitants
will be provided with information on existing problems and the actions and deci-
sions to be taken for their solution. A council or complex will not only consult
with the local bodies and the interested groups, but also with the inhabitants dur-
ing the preparation and decision taking phases on issues of broader interest. The
right of all inhabitants to access services provided by the local authority or the
complex, respectively, will be ensured. The issue of transparency regarding the
actions of a local authority will also be addressed. Every municipal council and
the council of a complex will be empowered to introduce and operate a support
service to provide the public with information about the municipality, the com-
plex and their services, the various projects executed and the handling of com-
plaints and applications. Provisions will also be made for their examination, the
outcome of which will be notified to the public. It is stipulated that annual assem-
blies will be held to exchange information and to promote discussion about local
affairs.
1.3.3. Creation of District Councils – The Second-Tier of Local

Government
New legislation on the creation of District Councils has been submitted by

the Minister of the Interior, with the approval of the Council of Ministers, to
the House of Representatives. These councils will form the second-tier of lo-
cal self-government, and become the pillars of the regional development plan.
The legislation will be introduced and enacted immediately after the local
elections of December 2011, which will be established through the representa-
tion of all municipalities, complexes and the district unions of communities.
As of 2016, however, the 19 members of each District Council will be elected
directly by the registered voters of every district and, and once the District
Councils are formed, members will elect the President and the Vice-President
of the Council.
Local government in Cyprus consists of two types of authorities: «mu-

nicipalities» and «communities». The governing bodies are, respectively, the
Municipal Council and the Community Council. Generally speaking, munici-
palities constitute local government in urban and tourist centres, whereas in
rural areas this role is played by the communities. The central government
assigns the administration of certain affairs of a town or a village to the offic-
ers elected by the local citizens, the mayors, the presidents of the communi-
ties and the members of the councils, to exercise the powers vested in them
by law. It is a democratic notion to give citizens the right to manage the local
95
george coucounis
affairs affecting their daily life, through the elected officers, who cannot be
substituted by the central government.9
On the other hand, Cyprus is divided into six Districts, each of which con-
sists of a number of municipalities and community councils. The Districts are
named after their capital town, which are also the largest cities in the country:
Nicosia (in Greek: Λευκωσία -Lefkosia), Limassol (in Greek: Λεμεσός -
Lemesos), Larnaca (in Greek: Λάρνακα -Larnaca), Paphos (in Greek: Πάφος
-Pafos), Famagusta (in Greek: Αμμόχωστος - Ammochostos) and Kyrenia (in
Greek: Κερύνια - Kerynia). The municipalities of Famagusta and Kyrenia
have been displaced due to the Turkish invasion of Cyprus in 1974.
The District has an administrative role and is headed by the District Officer
who is a senior civil servant, appointed by the Government. His duty is to coor-
dinate and liaise with the activities of all the Ministries in the District, and is
accountable to the Ministry of the Interior.
As for figures and types of local authorities, there are 33 municipalities and
492 communities in Cyprus.10 The following is a summary of the existing Dis-
tricts and their municipalities and community councils.
– District of Nicosia: 11 municipalities, three of which are semi-occupied
and an additional three are occupied by Turkish troops; and 135 communi-
ties councils, 39 of which are occupied by the said troops since the inva-
sion of the island in 1974.
– District of Limassol: five municipalities and 106 community councils.
– District of Larnaca: four municipalities, one of which is semi-occupied
and 50 community councils, out of which, two are occupied.
– District of Paphos: four municipalities and 99 community councils.
– District of Famagusta: seven municipalities mostly occupied, out of which
one is semi-occupied and four are occupied; and 66 community councils,
60 of which are occupied.
– District of Kyrenia: the smallest District, consisting of three municipalities
and 36 community councils, all of which are occupied.
The occupied municipalities and communities are in fact displaced from the legal
process. They maintain their legal status, although their mayors and councils have
temporarily been displaced and relocated in areas controlled by the Republic. How-
ever, the communities cannot apply the powers vested in them by the national Law.
9
«Σύγχρονη Γεωγραφία της Κύπρου – Πληθυσμός και Οικισμοί της Κύπρου» Τόμος
4, Γιώργος Καρούζης, ΣΕΛΑΣ Κέντρο Μελετών, Ερευνών & Εκδόσεων, Λευκωσία
1999, ISBN 9963566650 (in English «Contemporary Geography of Cyprus – Population and
Settlements in Cyprus», Volume 4, Giorgos Karouzis, SELAS Centre of Studies, Research &
Publications, Nicosia 1999).
10
Union of Cyprus Municipalities: www.ucm.org.cy, Union of Cyprus Communities: www.
ekk.org.cy, District Administration Offices: www.moi.gov.cy/da
96
The capital of Cyprus is Nicosia,11 the island’s largest city and the leading
administrative, commercial and educational centre. The Byzantines chose it as
the new capital of Cyprus in the 10th century AD, because of its central loca-
tion.12 It has been the capital of Cyprus since then, and now it stands as the only
divided capital city in Europe. It should be noted that the municipality of Nico-
sia has no special status compared to the other municipalities in Cyprus.
3.1. The European Charter of Local Self-Government (ECLSG)
In accordance with article 52 of the Constitution, the ECLSG was ratified by

Act 17/1988,13 and incorporated into domestic law with two reservations: ex-
emption of the provisions of articles 5 and 7(2), referring to the Protection of
Local Authority Boundaries, and financial compensation for people who serve
in office. Regarding the reception of the Charter in the domestic legal order, the
Charter became effective immediately after its ratification. As an international
treaty and according to article 169 (3) of the Constitution,14 the Charter takes
precedence over municipal law or any other domestic law enacted subsequent
or prior to the ratification. This does not mean that the Charter repeals domestic
legislation, rather it renders domestic law inapplicable, because since it is an
international regulation, it does not adhere to the principles of interpretation
applied to ordinary laws. The Charter is governed by the Vienna Convention on
Treaties, which Cyprus ratified by Law 62/1976.
This issue was examined by the Supreme Court in the case of Toulla Mal-
achtou etc –v- Christodoulos K. Armefti and Another,15 whereby reference was
made to article 169.3 of the Constitution, which provides that treaties, conven-
tions and international agreements concluded in accordance with the Constitu-
tion, have precedence over domestic law as of the date of their publication in
the official Gazette of the Republic, and providing such treaties, conventions
and agreements are applied by the other party, and are subject to reciprocity.
Thus, a convention under Cyprus’ legal structure, as set out in the Constitution,
has a higher status than any other law enacted before or after the convention.
11
Municipality of Nicosia: www.nicosia.org.cy
12
«Μεγάλη Κυπριακή Εγκυκλοπαίδεια», 9ος Τόμος, Φιλόκυπρος Εκδοτική Εταιρεία
ΛΤΔ, 1986 (in English. «Great Encyclopedia of Cyprus», 9th Volume, Filokypros Publishing
Company Ltd, 1986).
13
«Ο περί Κοινοτήτων Νόμος» Ένωση Κοινοτήτων Κύπρου, Λευκωσία 1999 (in
English «Communities Law» , The Union of Cyprus Communities, Nicosia 1999).
14
«Σύνταγμα Κυπριακής Δημοκρατίας» – Ανδρέα Νικόλα Λοϊζου, Λευκωσία 2001,
ISBN: 9963-8654-0-2 (In English. «The Constitution of the Republic of Cyprus» – Andreas
Nicola Loizou, Nicosia 2001).
15
(1987) 1 C.L.R. 207.
97
george coucounis
The only body of law superior to the international agreement is the Constitu-
tion, which according to article 179.1, is the supreme law of the land.
The place and hierarchy of the Charter in the Cypriot legal order must be
briefly discussed. In Cyprus, legal rules are classified according to the follow-
ing hierarchy: (a) European Union Law, (b) Constitution, (c) doctrine of neces-
sity (d) conventions, and (e) ordinary laws. The 5th amendment16 of the Consti-
tution gives EU law supremacy over the Constitution and any other law in
Cyprus, as ruled by the Supreme Court of Cyprus17. In the Malachtou case18, the
court ruled that a provision of a treaty or a convention is self-executing and
directly applicable, if the rights or obligations imposed thereby are comprehen-
sively defined to the extent of making them, without further addition or modi-
fication, enforceable before a court of law.
Furthermore, in the case of Παντελίδης –ν- Λεαντζή19, the Supreme Court
ruled that the European Charter, although ratified by law, was not directly ap-
plicable, because its wording was 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 entities in a manner that these rights and freedoms could be
raised before national Courts. Consequently, although the Charter is governed
by the application of monistic principles and integrated in Cyprus’ domestic
legal system, and overrides any other Cypriot law, in practice, its provisions are
not directly appicable. According to the Supreme Court, the Charter is too
vague in terms of the definition of the rights and obligations that can be di-
rectly raised against domestic law.
As for the Judicial Protection of the charter in Cyprus courts, Judicial pro-
tection in Cyprus is guaranteed under article 146 of the Constitution, which
allows citizens or local authorities to appeal before the Supreme Court, if they
have reasons to believe that they have suffered harm by internal/domestic leg-
islation that contradicts the Charter. On the other hand and according to the
Pantelides case (see footnote 19), the provisions of the Charter are not self-
executing, so it is up to the constitutional bodies and, in particular, to the legis-
lative bodies of the Republic to implement the Charter and make it effective in
domestic law.
3.2. The Municipalities Act
The establishment and functioning of all municipalities are governed by the

Municipalities Act 111/1985, as amended. The municipalities existing on the
16
As introduced by Law 127(I)/2006.
17
Civil Appl. 65/2009, dated 1/02/2011.
18
id note 15.
19
(1991) 3 Α.Α.Δ. 293 (in English Pantelides v. Leantzi, (1991) 3 C.L.R. 293).
98
date this law was enacted were regarded as established in accordance with the
law. Provisions were made for the establishment of new municipalities, the
merger of a municipality with its neighbour, improvement area or village, and
the elimination of existing municipalities. «Communities» with a population of
more than 5,000 inhabitants or possessing the economic resources to function
as a «municipality» may conduct a local referendum, subject to the approval of
the Council of Ministers, to decide whether they want to become a
«municipality».20
All municipalities can register as members of the Union of Cyprus Munici-
palities to operate as a representative body of municipalities on a national and
international level. Their main aims are to promote local government in the
context of municipalities, examine issues related to local government, collect
and provide information and express views and opinions on legislation. The
Union is administered by its own officers and employees.21 Municipalities are
legal entities under public law, and have their own boundaries. Citizens of mu-
nicipalities are either Cypriot citizens or citizens of member states of the Euro-
pean Union, with established residence in the municipality.22
3.3. The Communities Act
The other type of local authority in Cyprus is the community, governed by a

community council, and established by the Communities Act 86(I)/1999, as
amended. Community councils administer all the local affairs of the communi-
ties and exercise the powers vested in them by law.23 A community is a village
or complex of villages that includes the town parish and an improvement area.24
Members of the community are citizens of the Republic or a citizen of another
Member State of the European Union, with permanent residence in the com-
munity. All members of the community are registered25 in the community reg-
istry. A complex consists of two or more neighbouring communities that merge
following a referendum conducted in the affected communities.
All communities can be registered as members of the Union of Cyprus Com-
munities, a body which represents nationally and internationally the Communi-
ties of Cyprus. The Union promotes and protects the rights and interests of the
communities, collects and provides information and expresses views on legisla-
tion and other pertinent activities.26 Each community council is represented in
20
Part II of the Municipalities Law.
21
Article 7B of the Municipalities Law.
22
Part III of the Municipalities Law.
23
Part III of the Communities Law.
24
Part I of the Communities Law.
25
Part II of the Communities Law.
26
Article 9A of the Communities Law.
99
george coucounis
the Union of Cyprus Communities and the District Union of Communities by

the president of the community, unless the council, with the president’s con-
sent, decides otherwise. The Union is administered by its own officers and has
its own staff.

AUTHORITIES
4.1. Municipalities
Although the municipal council has the autonomy to decide on various mat-
ters, this is not considered full autonomy. By law, the council cannot apply
regulations stated in Chapter (Schedule) No. 2 of the Municipalities Act, until
the council issues its own local ordinances and regulations. The tasks and issues
to be discussed at the meetings of the council are established and governed by
regulations issued by the council.27 The members of the council participate in
the meetings of the council and in various committees.
According to the Municipalities Act28, the Council of Ministers approves
each municipal council, investing them with the right to issue, amend and/or
revoke specific regulations that define procedures for municipal employee re-
cruitment, their service structure, salaries, benefits, duties and responsibilities.
The Council of Minister is also to approve municipal decisions, such as money
deposits, some of the council’s duties and responsibilities, the acquisition of
real estate, the issuance of permits and fees, and the regulation of weights,
measures and the testing of goods. The Council of Ministers is not required to
approve the issuance of municipal regulations regarding fees and charges.
The members of the council and the deputy mayor receive compensation
and other allowances as provided for in the municipality’s annual budget, which
is approved by the Council of Ministers.
The Municipalities Act29 outlines the duties of the municipal council regard-
ing, for example, town planning, water supply management, sewer and drain-
age systems, construction, maintenance, street naming and lighting, clean up
and upkeep and grooming of municipal areas, public health protection, the es-
tablishment and operation of slaughterhouses, police control, and parking. Fur-
thermore, this statute empowers the municipal council to handle municipal
funding, the purchase of immovable property, the establishment of municipal
markets and the promotion of cultural and intellectual activities. This legal
27
Part V of the Municipalities Law
28
Article 87, Part VII of the Municipalities Law
29
Article 84, Part VII .
100
rule30 also invests the municipality with the power to enter into contracts with
another local authority, to carry out projects for the common good and under-
take jointly provide services.
In addition, the municipal council operates independently as the Sewerage
Board, with the mayor acting as chairman. Specific duties are stated in the Sew-
erage Systems Act 1/1971, as amended, and include the construction, supply,
maintenance, expansion and operation of the sewerage systems. The Board’s
staff and services are independent, and their salaries are funded by taxes. Al-
though planning control is generally exercised by the government through the
Town Planning and Housing Department, pursuant to Town and Country Plan-
ning Act 90/1972, the municipalities of Nicosia, Limassol, Larnaca and Paphos
have been granted planning powers for their area.
4.2. Community Councils
The powers of the councils are defined by the Municipalities Act31, and they
are similar to those of municipalities, but because of the community councils’
limited functions, there are some differences. For example, the council pro-
vides water for domestic use, constructs and maintains drainage and sewer sys-
tems, street and bridge lighting, maintains community hygiene and cleanliness,
and names or re-names roads, squares and public places as approved by the
District Officer. The council is also authorized to enter into loan agreements,
with the approval of the District Officer, create or administer industrial areas,
charge an annual contribution to community property owners for services pro-
vided, the organization of educational, cultural, artistic, sporting and other
events, and the establishment, maintenance and improvement of parks, gardens
and other public places.32
The Government provides essential administrative and technical assistance,
as well as necessary services to most communities throughout the District Of-
fices. Wealthy communities are exempted from this assistance. Community
revenue consists of state subsidies, taxes and fees collected from residents
within the community boundaries. The financial resources derived from the
collection of these taxes and fees are limited. Consequently, development pro-
jects are financed largely through subsidies granted by the central govern-
ment33, while other grants and subsidies are obtained from European Union
funding.
30
Article 86.
31
Article 83, Part IX.
32
Part IX , Communities Act.
33
Union of Cyprus Communities: www.ekk.org.cy
101
george coucounis
5.1. Municipal Authorities
Every municipal council has a mayor and 8-26 members, depending on the
number of the voters. The members are directly elected by the municipality’s reg-
istered voters. The mayor and the council members serve a term of 5 years, and are
elected on the same day in December, by separate ballot. Voting is compulsory,
and every citizen of the Republic or of any other member country of the European
Union, who has reached the age of 18, resides permanently in the area of the mu-
nicipality, is registered to vote, has attained the age of 18, is eligible. Any regis-
tered voter, who is at least 25, may run for mayor (or for member of the council if
he is at least 21), and has not been declared ineligible by law. A person of a certain
status or holding a prominent public position, if elected, must resign prior to as-
suming office. The deputy-mayor is elected by the members of the council. A
citizen of any Member State of the European Union may run as council member,
but not for the office of mayor, unless he has acquired Cypriot nationality.34
5.1.1. The Mayor
The mayor35 is the only executive authority who represents the municipality
in all official activities and presides at the council meetings, the Management
Committee and various committees. He also prepares the agenda, convenes the
meetings, executes the decisions of the council, and is in charge of all the serv-
ices of the municipality. He also orders the collection of municipal taxes and
issues financial orders against the budgets or the approved credits. He also acts
as Marriage Officer; and exercises other competences or authorities entrusted
to him by law or municipal regulation. In case of absence or incapacitation, the
deputy-mayor replaces the mayor. The mayor receives an annual salary, ex-
pense allowance and other allowances that the council deems necessary as pre-
scribed in the annual budget, which is approved by the Council of Ministers.
5.1.2. Committees
The Management Committee is the highest municipality committee, whose

members are appointed by the council. The mayor and deputy-mayor also par-
ticipate in the committee. The competences of the committee are defined in
article 47 of the law, and include the preparation and submission of the mu-
nicipality’s budgets, annual reports and accounts, assistance and consultancy to
34
Part IV, Municipalities Act.
35
Article 46, Part V, Municipalities Act.
102
the mayor in the execution of his duties, the coordination of the tasks of several
committees and the execution of other duties entrusted to the committee by the
council or the mayor. The municipality’s annual accounts are audited by the
Auditor General of the Republic. Other municipal committees may be estab-
lished by the council, but will have only advisory capacity and no executive
role.
5.2. Community Councils
The community council consists of the president of the community and the
members of the council ranging from 4 -8 members, depending on the number
of voters. Elections take place on the same day as the municipality elections
and similar rules and procedure apply. Parishes within the municipalities have
presidents and deputies, but no community councils. The Council of Ministers
may not call for elections in certain communities for reasons of public interest.
If this occurs, the Minister of the Interior has power to appoint the president of
the community, the deputy and other members of the Council.36
5.2.1. The President
The president of the community convenes the monthly meeting of the coun-
cil or whenever he considers it necessary or in response to a written request of
1/3 of the council members. There is a quorum if half of the members are
present and, in the case of a tie vote, the president has the tie-breaking vote. The
president also must enforce the decisions of the council and, if he fails to do so,
the Minister of the Interior will appoint the District Officer to enforce them.
The president of the community is entitled to receive a compensation according
to the Law. He has a wide range of competences including representing the
community in all official activities, maintaining law and order, registering
births and deaths, issuing certificates for movable or immovable property and,
in general, exercising all the duties and powers vested in him under law. 37
5.2.2. The council members
The members of the community council have the obligation and the right to
execute all the powers provided for under law, including the power to issue
regulations, upon approval by the Minister of the Interior and have them pub-
lished in the Official Gazette of the Republic. These regulations refer to the
36
Part IV, Communities Act.
37
Part V, Communities Act.
103
george coucounis
procedure to recruit community employees, their service structure, salaries and

benefits, duties and responsibilities and any other relevant matter.38 Further-
more, with the consent of the Chief of Police and the approval of the Minister
of the Interior, the community council has the power to issue regulations re-
garding traffic, parking places, the installation of parking meters, the setting of
pedestrian crossings and any other issue relating to traffic in the community,
and have them published in the Official Gazette.39
6. HUMAN RESOURCES
According to the law40, the municipal council has the authority to create
senior staff positions, such as the town secretary, the municipal engineer, the
municipal treasurer, the municipal medical officer, the municipal sanitary in-
spector or any head of any department declared by the council as independent,
to assist in the coordination and clear prescription of tasks within the munici-
pality. The qualifications of the municipal officers and employees for appoint-
ment, their service structure, rights, obligations and salaries are generally the
same as those applied to Public Servants. The law makes a clear distinction
between officers and workmen. The appointment of workmen is governed by
law41 and implemented by a committee consisting of members of the council
and chaired by the mayor.
At the communities level, the council has the power to regulate the general
terms of service, duties and disciplinary procedures, number of posts, service
structures and salaries of community employees.42 Also, the Council may ap-
point qualified non-members of the Council to fill the position of secretary and
any other vacant post. In this regard, there is a legal distinction between those
special council officers and regular public employees.
The main sources of revenue of municipalities are municipal taxes, fees and
duties (professional tax, immovable property tax, hotel accommodation tax, fees
for issuing permits and licenses, fees for waste collection, fines etc), as well as
state grants and subsidies. One third of the annual grant is equally divided among
all municipalities and the remaining two thirds are divided proportionally, ac-
cording to the total number of inhabitants of each municipality. Also, central
38
Part VI, Communities Act.
39
Article 84, Part IX of the Communities Act.
40
Article 54, Part V of the Municipalities Act.
41
Article 56 Part V of the Municipalities Act.
42
Part VI of the Communities Act.
104
government usually finances projects for major infrastructures that municipali-

ties may undertake, although this depends on each individual project.43
Municipalities are responsible for keeping the required books, statements
and accounts, according to established accounting principles and standards.
The Management Committee must prepare two municipal budgets, one for ex-
penditures and a second for revenues, and both must be approved by the Coun-
cil of Ministers. The «Development Estimate» describes the planned expendi-
tures for the next year’s development projects. The grant issued to the
municipality is conditioned by the financial situation of the municipality and
the nature of the project. Thus, it may be argued that amendments may take
place before the approval of the one of the two budgets prepared every year,
namely the «Development Estimate». The Council of Ministers must approve
the «Annual Current Estimate», for ordinary revenue and municipality expen-
ditures. Both budgets are prepared and approved annually and the financial
management of the municipalities is audited by the Auditor General.
As regards communities, for each fiscal year beginning 1 January, each
council prepares and submits an annual budget that includes the planned reve-
nues and expenditure, to the District Office for approval. A copy of the budget
must be also sent to the Auditor General. The council maintains a community
fund in which all revenues are deposited and expenses are paid. The council
must keep books, accounts and statements according to established accounting
principles and standards.44
In minicipalities, any sale or exchange of real estate property owned by the

municipality must be previously approved by the Council of Ministers. The
municipal council has no autonomy or authority to manage the municipality’s
property on its own. It may, however, sell or exchange any of the municipali-
ty’s movable property without prior approval of the Council of Ministers.45
Contracts entered into by the municipalities must be in writing and are signed
by the mayor and two councilors following authorization by the council. The
council also has the authority to approve the leasing of any of the municipali-
ty’s movable or immovable property, the contracting of loans and their terms
and conditions, and any inheritances, bequests or donations.
At community level, the council can own movable and immovable property
and, when required by law, it must register the immovable property in the name
of the community at the Land Registry. The council also has the power to de-
43
Union of Cyprus Municipalities: www.ucm.org.cy
44
Part VIII of the Communities Act.
45
Articles 62 & 63, Part V of the Municipalities Act.
105
george coucounis
cide on the sale, exchange and lease of any movable or immovable community
property. Council decisions regarding immovable property are effective only if
supported by 2/3 of the council members and are approved by the Minister of
the Interior. In the ordinary course of its property transactions, the council,
represented by its president, may enter into a written or oral agreement. In any
other instance, however, the agreement must be in writing, bear the seal of the
council and the signature of the president and two authorized members.46
9.1. Governmental and inter-administrative control
According to relevant legal provisions, in some areas governmental admin-

istrative supervision and control over municipalities’ and communities’ affairs
is strict. Evidence of this is the required approval or prior authorization by the
Minister of the Interior or the Council of Ministers for certain functions and
activities of local authorities. For example, the municipal council must get the
approval of the Council of Ministers in order to issue, amend or revoke certain
regulations,47 or sell or exchange immovable property.48 Similarly, the Minister
of the Interior must approve these kinds of actions with regard to communities.
Other evidences of supervision are: (a) the municipality’s two budgets must
be approved by the Council of Ministers; (b) the municipalities’ financial man-
agement must be audited by the Auditor General.49 In addition, the District
Officer, as the government’s local representative, is given ample powers of
supervision by the Communities Act.
In terms of citizen control, a person can protect his/hers rights by submitting
a planning appeal against a decision taken by a local authority, to the Council
of Ministers through the Minister of the Interior.50
9.2. Judicial control
According to article 146 of the Constitution, a citizen may challenge any

decision, act or omission of a governmental body, which negatively affects his/
her own interests, before the Supreme Court of Cyprus.51 Likewise, and in ac-
46
Part VII of the Communities Act.
47
Article 87, Part VII of the Municipalities Act.
48
Article 63, Part V of the Municipalities Act.
49
Article 65-67, Part V and Articles 80-82 of Part VI of the Municipalities Act.
50
Κ.Δ.Π. 119/2005 (in English Administrative Regulatory Act 119/2005).
51
Improvement Board Strovolos v. Republic (1983) 3 C.L.R. 434, affirmed by the Plenary
Session of the Supreme Court in Δήμος Έγκωμης ν. Δημοκρατίας (1997) 3 Α.Α.Δ. 346. (In
English. Municipality of Engomi v. The Republic (1997) 3 C.L.R. 346).
106
cordance with art. 146 of the Constitution, any affected person may file an ac-
tion for annulment before the Supreme Court of Cyprus if a local authority
passes an act or commits an omission that is contrary to the provisions upheld
by the Constitution or by any law; exceeds or abuses in the exercise of the pow-
ers vested in them; or acts (or fails to do so) in a manner that affects directly and
adversely affects a person’s legitimate interests.
On the other hand, attention should also be given to the action of the Euro-
pean Union Court of Justice. Several provisions of the European Union treaties,
as well as directives and regulations, apply also to local authorities within the
European Union, including those in Cyprus. For example, the ECJ ruling on the
Helmut Muller case52 made it clear that procurement rules are applicable to a
local authority if the action is performed for its direct economic benefit and if it
has defined the action in such a way that exceeds mere planning powers.
9.3. The role of the Ombudsman
The figure of the Ombudsman53 (referred to as the «Commissioner of Ad-

ministration» in Cyprus) is an independent official based in Nicosia. His office
and authority derives from a specific piece of legislation: the Commissioner of
Administration (Ombudsman) Act of 1991.54 According to this statute as
amended, the Ombudsman has the power to examine a complaint and issue an
opinion as an independent judge. The Ombudsman has wide jurisdiction that
includes matters involving local authorities of the Republic. Most of the com-
plaints addressed to the Ombudsman relate to real estate property and actions
or omissions of local government55. In fact, these complaints make up 29% of
all complaints received, and generally refer to delays and the failure to inform
citizens who are affected by the actions of local authorities. The Ombudsman
examines a complaint to determine the nature of the issue and if it relates to
matters of public interest, and then initiates an investigation. The Ombuds-
man’s officers and assistants can conduct on-site visits to gather additional in-
formation and examine the issues relevant to the complaint. In some munici-
palities, officers will receive complaints and forward them to the Ombudsman.
The investigation procedure depends on the nature of the complaint. The
investigator-officer may write a letter to the authority against which the com-
plaint was filed, or conduct an on-site investigation if the complaint involves
immovable property or local authority matters, or visit the authority to collect
information and review the relevant administrative file. There is no specific
procedural protection of the local authority against which the complaint can be
52
C-451/2008.
53
The Office of the Ombudsman, www.ombudsman.gov.cy
54
Law 3/91 as amended.
55
Local Authorities are subjected to the Ministry of Interior.
107
george coucounis
made. The Ombudsman normally maintains contact with the chief executive of
the municipality, but in some municipalities, officers are designated who liaise
with the Ombudsman. Local authorities are obliged to heed the Ombudsman’s
decision, and if this is not done, the Ombudsman will inform the Council of
Ministers of the act of disobedience. If the Ombudsman determines that the
problem is systemic, local authorities may be asked to adopt a different ap-
proach. Complaint offices are designated in public buildings to make it easier
for citizens to exercise their right to complaint.56
10. PROTECTION OF LOCAL SELF - GOVERNMENT
In addition to general laws, the Constitution of Cyprus (article 146) specifi-

cally provides for adequate protection of local authorities in the event of a con-
flict between central and local administrations. Where a legitimate interest of a
local authority is affected by an action or an omission of an agency of the cen-
tral government, the concerned local authority is entitled to bring the case be-
fore the Supreme Court of Cyprus for protection.57 In the case, Improvement
Board of Strovolos, the Supreme Court of Cyprus stated that local authorities
are expected to act in the best interest of the locality they serve.
At times, conflicts may arise between the superior needs and interests of the
country and those of the local entity. When this happens, legal means must be
sought to resolve the conflict between central and local administrations, so de-
pending on the case, the local authority can appeal to the organs of central
government to review the legality of the measures taken by the central govern-
ment that affect the interests of local government.
Cyprus participates in the European Union’s Committee of the Regions

(CoR) with six permanent members and 6 six substitutes, who promote and
support the interests of Cyprus’ local self-government at the assemblies of the
CoR. These political assemblies give regional and local levels a voice in EU
policy and legislation. The Union of Cyprus Municipalities established an of-
fice in Brussels in July 2005 immediately after Cyprus joined the European
Union. Its mission includes: (a) engaging in active support of the Cyprus’ mu-
nicipalities, (b) promoting and protecting the interests and aims of the members
of the European Union on an international level, (c) providing services to the
European Union and its members, and (d) supporting Cyprus’ participation in
the Committee of the Regions.
56
The Office of the Ombudsman: www.ombudsman.gov.cy
57
Improvement Board of Strovolos v. The Republic (1983) 3A C.L.R. 434.
108
12.1. Case-law
The Attorney General of the Republic v. Mustafa Ibrahim and others (1964)
C.L.R.195
Toulla Malachtou etc. v. Christodoulos K. Armefti and Another (1987) 1 C.L.R.
207
Παντελίδης –ν- Λεαντζή (1991) 3 Α.Α.Δ. 293 (In English. Pantelides v.
Leantzi (1991) 3 C.L.R. 293)
Αναφορικά με την αίτηση του Χρίστου Ματσιά από τη Σουαζιλάνδη
για την καταχώρηση για έκδοση διατάγματος certiorari, Πολ. Αίτ.
65/2009, ημερ. 1/02/2011. (In English. The case of Christos Matsia from
Swaziland on the filing of a certiorari order, Civil Appl. 65/2009, dated
1/02/2011)
Improvement Board of Strovolos v. Republic (1983) 3 C.L.R. 434,
Δήμος Έγκωμης ν. Δημοκρατίας (1997) 3 Α.Α.Δ. 346. (In English. Mu-
nicipality of Engomi v. The Republic (1997) 3 C.L.R. 346)
Helmut Müller GmbH v Bundesanstalt für Immobilienaufgaben, C-451/08.
12.2. Bibliography
«Μεγάλη Κυπριακή Εγκυκλοπαίδεια» 4ος Τόμος, Φιλόκυπρος Εκδοτική

Εταιρεία ΛΤΔ, 1986, (In English. «Great Encyclopedia of Cyprus», Vol-
ume IV Filokypros Publishing Company Ltd, 1986).
«Μεγάλη Κυπριακή Εγκυκλοπαίδεια», 9ος Τόμος, Φιλόκυπρος Εκδοτική
Εταιρεία ΛΤΔ, 1986, (In English. «Great Encyclopedia of Cyprus», Vol-
ume IX, Filokypros Publishing Company Ltd, 1986).
«Σύγχρονη Γεωγραφία της Κύπρου – Πληθυσμός και Οικισμοί της
Κύπρου», Τόμος 4, Γιώργος Καρούζης, ΣΕΛΑΣ Κέντρο Μελετών,
Ερευνών & Εκδόσεων, Λευκωσία 1999, (In English. «Contemporary Geog-
raphy of Cyprus – Population and Settlements of Cyprus», Volume 4, Giorgos
Karouzis, SELAS Centre of Studies, Research & Publications, Nicosia 1999).
«Η Τοπική Αυτοδιοίκησις εν Κύπρω», Κρίτων Τορναρίτης, Λευκωσία
1972, (In English. «Local Self-Government in Cyprus», Criton Tornaritis,
Nicosia 1972).
«Σύνταγμα Κυπριακής Δημοκρατίας» – Ανδρέα Νικόλα Λοϊζου,
Λευκωσία 2001, ( In English. «The Constitution of the Republic of Cy-
prus» – Andreas Nicola Loizou, 2001, Nicosia 2001).
109
george coucounis
«Ο περί Κοινοτήτων Νόμος» Ένωση Κοινοτήτων Κύπρου, Λευκωσία

1999 (In English. «The Communities Act» The Union of Cyprus Communi-
ties-Nicosia 1999).
www.ucm.org.cy (Union of Cyprus Municipalities)

www.ekk.org.cy (Union of Cyprus Communities)
www.nicosia.org.cy (Municipality of Nicosia)
www.moi.gov.cy (Cyprus Ministry of Interior)
www.cyprus.gov.cy (Cyprus Government Web Portal)
www.ombudsman.gov.cy (The Office of the Commissioner for Administra-
tion, Ombudsman)
www.limassolmunicipal.com.cy (Municipality of Limassol)
www.cylaw.com (The Cyprus Source of Legal Information)
www.coucounislaw.com (George Coucounis LLC, Lawyers – Legal Consult-
ants)
110
Chapter 5:
LOCAL GOVERNMENT IN THE
CZECH REPUBLIC
Stanislav KADEČKA
Modern Czech territorial self-government was established in 1848, at the

time of a revolution that led to the end of feudal administration and the begin-
ning of territorial administration based on ideas of natural law. Thus, the incep-
tion of territorial government was connected with the end of feudal absolutism
and with the establishment of constitutional monarchy, following the key prin-
ciple that the essence of a free State is an independent municipality.
At the turn of the 19th and 20th century, the territory of the Czech Republic
was a part of the Austrian-Hungarian Empire. The constitutional grounds of
this union were laid down in the Constitution of December 1867. After declar-
ing the independence of Czechoslovakia in October 1918, that constitutional
Act became of foremost importance and kept the continuity with Austrian-Hun-
garian law and public administration. Thus, the territorial self-government
(municipalities, districts and provinces) of the newborn State was identical to
the original (Austrian-Hungarian) one.
In November 1918, the interim constitution of the Czechoslovak Republic
was adopted. This document did not regulate the issue of the territorial self-
government though. It was succeeded by the Czechoslovak Constitution of
February 1920, which stated only that the composition and competences of
self-governing unions would be regulated by special acts. Consequently, in
1927 a new Act on the organization of public administration was adopted. It
abolished the existing representative districts and their bodies. Moravia and
Silesia were united in one Moravian-Silesian province and new self-governing
districts were established. This new territorial organization remained in force
until 1945 (without considering the protectorate period). In 1945, the local,
district and provincial national committees were constituted as interim bodies
of government.
111
stanislav kadečka
Legal regulation of local self-government in the period of the First Czecho-

slovak Republic was represented by provincial local codes (Czech, Moravian,
Silesian) adopted in the 60s’ of the 19th century. These codes were very similar
to each other and were based on the Imperial General Act on Municipalities of
1862. This Act stated basic rules for the structuring of local government, in-
cluding a determination of the municipal bodies (municipal council and board),
the municipal competences («independent» and «delegated» ones) and the ba-
sic rules for State control. In 1927, a new Act on the organization of political
administration was passed.
A period of more than 40 years of socialist State and law took place in the
country between 1948 and 1989. It implemented a system of «national com-
mittees» instead of the original organisation of territorial self-government.
Moreover, the new Constitution of the Czechoslovak Republic of May 1948
destroyed parliamentary democracy at the State level, as well as territorial
self-government. The new system of national committees (local, district and
regional) existed only as bodies of the territorial State administration, in a
system of subordinate and superior hierarchy. The next step in the legal regu-
lation of the national committees was the adoption of the Constitution of the
Czechoslovak Socialist Republic and the new Act on National Committees of
1960. The last socialist regulation of national committees was the 1967 Na-
tional Committees Act.
After the «Velvet Revolution» in November 1989, the socialist constitu-
tion was changed, and both the democratic State of Law and territorial gov-
ernment were restored (1990). The reform of territorial government repre-
sented a return to the pre-war principles. The new 1990 Constitution
abolished the system of national committees as bodies of the State adminis-
tration. On the other hand, a new regulation of local autonomy was estab-
lished. In place of the abolished district national committees, new district
authorities were set up as monocratic, territorial bodies of State administra-
tion with a general competence (self-government was not established at the
district level). Moreover, the regional national committees were also abol-
ished, without replacement. Their agenda was delegated to the district au-
thorities and the central State administration bodies. In connection with the
new Constitution, the new Municipalities Act was adopted in 1990. This le-
gal rule is based on the so-called «mixed system», which means that the
units of territorial self-government, in a regime of functional duality, per-
form their own competences (independent competences) and delegated com-
petences (belonging to the State administration).
In the context of the dissolution of the Czechoslovak Federation and the
subsequent establishment of the Czech Republic, the new Constitution of the
country (still in force) was promulgated in December 1992. It guarantees the
self-government of the territorial units by providing that: «The Czech Repub-
lic is subdivided into municipalities, which are the basic territorial self-gov-
112
local government in the czech republic
erning units, and into regions, which are the higher territorial self-governing
units». The newest principal development of the Czech local and regional
autonomy was represented by the reform of territorial government, performed
mainly in 1997-2002. In the first phase, the Constitutional Act of 1997 estab-
lished 14 regions, but their legal regulation was not adopted until May 2000.
At the same time, a new Act on Municipalities and an Act on District Au-
thorities were adopted. The first phase of territorial government reform fin-
ished on the day of elections to the regional councils, in November 2000.
Regional councils and bodies were established. The second phase of the re-
form consisted in terminating the activity of the old district authorities by the
end of 2002 and in delegating their competencies to the new local and re-
gional authorities.
The reform of 1997-2002 has established a new structure and organiza-
tion of public administration, but it has not implemented an ideal territorial
government. The most problematic issues are: the lack of rationality; grow-
ing financial demands of local and regional authorities; and the lack of ef-
fectiveness of the current system (see further sections of this contribution).
At present, the main problem is realisation of the so-called smart govern-
ment, that should ensure effective public administration and friendly public
services. Thus, at present there are not significant discussions about organi-
zational reforms.
The Czech Republic is subdivided into municipalities, which are the basic
units of territorial government, and into regions, which are the «higher territo-
rial self-governing units».1 Every part of the territory of the Czech Republic is
a part of one municipality. Nowadays there are 6246 municipalities in the
Czech Republic, which are dived into different types:
– (common) municipalities (obce) (5447 municipalities)
– market town (městyse) (206)
– cities (města) (569)
– statutory cities (statutární města) (23)
– the Capital City of Prague (hlavní město Praha).
Whereas the designation of «market towns» and «cities» has got only a for-
mal character, without any other legal consequences, the «statutory cities» may
have their territory subdivided into smaller self-governing units: the city dis-
tricts or city boroughs.
1
The Czech legal terminology uses the wording «territorial self-governing units» instead of
«local and regional authorities», but both are used interchangeably here (editor’s note).
113
stanislav kadečka
Moreover, municipalities are also divided, according to their range of dele-

gated competences (as deconcentrated units of the State administration), into:
– common municipalities (all municipalities, obce),
– «municipalities with a commissioned municipal office» (obce s pověřeným
obecním úřadem) (388 municipalities),
– «municipalities with extended powers» (obce s rozšířenou působností)
(205 municipalities).
The number of municipalities in the Czech Republic is quite high. The struc-
ture of municipalities according to their number of inhabitants is clear:
– up to 200 inhabitants: 24.7% of municipalities
– from 200 to 499 inhabitants: 31.7%
– from 500 to 999 inhabitants: 21.5%
– from 1,000 to 1,999 inhabitants: 11.4%
– from 50,000 to 99,999 inhabitants: 0.2% (15 municipalities)
– over 100,000 inhabitants: 0.1% (6 municipalities).
Statistics show that roughly 56% of the Czech municipalities have less than
500 inhabitants, and that about 78% of the Czech municipalities have less than
1,000 inhabitants.2
Apart from municipalities, in the Czech Republic there are also 14 «higher
territorial self-governing units» (regions, kraje), for instance the Capital City of
Prague (Hlavní město Praha) or the Central Bohemian Region (Středočeský
kraj). The situation of these regions, from the viewpoint of their inhabitants, is
diverse: whereas three of the biggest regions (The Capitol City of Prague, Cen-
tral Bohemian Region and Moravian-Silesian Region) have roughly 1,25 mil-
lions of inhabitants each, the smallest one (Carlsbad Region) has only 0,31
million of inhabitants. Significant differences may also be found in the regions’
areas and population density.3
One should not confuse «regions» with the many State territorial bodies
existing in the Czech Republic, whose powers and competences emerge
from special acts. Among these bodies can be mentioned the following ones:
Tax Offices and Financial Directorates; Customs Offices and Directorates of
Customs; District Social Security Administration; Survey and Cadastral In-
spectorates and Cadastral Offices; Labour Offices; and Regional Hygiene
Offices.
2
Source: Malý lexikon obcí ČR 2010, Praha : Český statistický úřad 2010, http://www.czso.cz
3
Source: Malý lexikon obcí ČR 2010, Praha : Český statistický úřad 2010, http://www.czso.cz
114
The first overarching legal document to be discussed in this sectrion is the

European Charter of Local Self-Government (ECLSG), adopted within the
Council of Europe in Strasbourg in October 1985. It was signed by the Czech
Republic in May 1998. After the Parliament of the Czech Republic gave its
consent to this convention, the President of the Czech Republic ratified it and
the Charter was published in the Czech Collection of Laws (under No. 181/1999
Coll.). For the Czech Republic it entered into force on 1st September 1999. On
ratification of the ECLSG, the Czech Republic formulated this declaration:
«In the meaning of Article 12, paragraph 1, of the Charter, the Czech
Republic considers itself bound by 24 (twenty-four) paragraphs of Part I of
the Charter, of which 13 (thirteen) paragraphs are named in Article 12,
paragraph 1, thereof. The Czech Republic does not consider itself bound by
the following provisions: Article 4, paragraph 5; Article 6, paragraph 2;
Article 7, paragraph 2; Article 9, paragraphs 3, 5 and 6».
The status of the ECLSG in the Czech legal system is expressed in the binding
decision of the Czech Constitutional Court of February 2003, which states that:
«The Charter is not a common international treaty on human rights,
there are no rights of individuals, but rights of community (of citizens) and
so it protects collective rights(…)the rules laid down by this Charter, which
create a European standard of local self-government, are hardly self-execut-
ing(…)The Charter definitely does not guarantee an absolutely free local
self-government (…)the ineffectiveness of the instruments of the Charter is
not important with regard to its binding character. The Charter is not only a
declaration, it is a real international treaty binding its Parties (…) the gen-
eral concept of the Charter open an area for political appreciation of the
Party’s legislator in relevant law-making. The Constitutional Court is not
entitled to consider this political appreciation, it only considers if there is no
violation of the limits defined by the Charter.
Besides the above mentioned International law basis, there are also consti-
tutional grounds for territorial autonomy, as this figure is regulated in several
provision of the Constitution of the Czech Republic and in the preamble of the
Charter of Fundamental Rights and Freedoms.4
Thus, art. 8 of the Czech Constitution expressly stipulates that «the right of
autonomous territorial units to self- government is guaranteed». Self-govern-
ment is an important element of a democratic State of Law, and so it is pro-
tected by the Constitution («Any changes in the essential requirements for a
democratic state governed by the rule of law are impermissible», art 9.3), which
bans the abuse in interpretation («Legal norms may not be interpreted so as to
4
The Czech Republic is defined by the Constitution as a sovereign, unitary, and democratic
State, governed by the rule of law, founded on the respect for the rights and freedoms of the man
and the citizens. The Czech Republic shall observe its obligations resulting from international law.
115
stanislav kadečka
authorize anyone to do away with or jeopardize the democratic foundations of

the state»). The closer determination of territorial self-government at the con-
stitutional level is laid down in several provisions of Chapter VII of the Czech
Constitution, titled the Territorial Self-Government:
1. «The Czech Republic is subdivided into municipalities, which are the
basic territorial self-governing units, and into regions, which are the
higher territorial self-governing units. Municipalities shall always form
part of a higher self- governing region. Higher self-governing regions
may be created or dissolved only by a constitutional act». Therefore, the
Czech Constitution defines the inner division of the Republic as a unitary
state into self-governing municipalities and regions. The number and the
geographical area of those higher are to be regulated by legislation.
2. «Territorial self-governing units are territorial communities of citizens
with the right to self-government. A statute shall specify the cases when
they shall be administrative districts». This definition highlights three
features that create a core of the municipality or region: a territorial base,
a personal base and self-governing base. The important provision in this
context is Art. 21 par. 1 of the Charter of Fundamental Rights and
Freedoms, which protects «the right of citizens to participate in the ad-
ministration of public affairs either directly or through the free election
of their representatives».
3. «Municipalities shall be independently administered by their representa-
tive body. Higher self-governing regions shall be independently admin-
istered by their representative body. Members of representative bodies
shall be elected by secret ballot on the basis of a universal, equal, and
direct right to vote. Representative bodies shall have a four-year elec-
toral term. The powers of representative bodies shall be provided for
only by statute. Representative bodies of municipalities shall have juris-
diction in matters of self-government, to the extent such matters are not
entrusted by statute to the representative bodies of higher self-governing
regions». The Czech Constitution stipulates a privileged role of repre-
sentative bodies. The other bodies of municipalities and regions are de-
rived from a council and they do not have constitutional grounds.
4. «Territorial self-governing units are public law bodies which may own
property and manage their affairs on the basis of their own budget». The
essential feature is that, besides territory, the community of citizens and
the right on self-government, economic independence is also important.
5. The Czech Constitution contains the grounds for so-called delegated
competences of municipalities and regions: «the exercise of state admin-
istration functions may be delegated to self-governing bodies only if such
is provided for by statute».
6. Moreover, the Czech Constitution entitles local authorities to issue legal
regulations. These powers are recognised in two situations (identical for
116
municipalities and regions): firstly, in the exercise of local autonomy

(independent competences), secondly in the case of delegated state ad-
ministration (delegated competences). The constitutional ground for
municipal and regional law-making in the area of self-government is
Art. 104 par. 3 of the Czech Constitution, which states that: «Repre-
sentative bodies may, within the limits of their jurisdiction, issue gen-
eral binding ordinances». The general ordinances of municipalities and
regions (issued according to Art. 104 par. 3) reflect the right to self-
government, that may be restricted by the State only in the cases stipu-
lated by the Constitution. On the other hand, the constitutional ground
for municipal and regional law-making in the area of delegated state
administration (delegated competences) is Art. 79 par. 3 of the Czech
Constitution, which states that: «bodies of territorial self-governing
units may issue regulations on the basis of and within the bounds of a
statute».
7. The abovementioned provisions are protected by a special constitutional
device, stipulated in Art. 87 par. 1 c) of the Czech Constitution: «The
Constitutional Court has jurisdiction over constitutional complaints by
the representative body of a territorial self-government against an un-
lawful encroachment by the State». This so-called «local constitutional
complaint» can be submitted by municipal or regional councils if they
claim that the State unlawfully interfered with their right to self-govern-
ment (see point 10 below).
Apart from the above presented constitutional provisions, local autonomy in
the Czech Republic is regulated by a group of statutes (repeatedly amended),
the most important being, i.a., the following ones:
1. The Municipal Police Act, No. 553/1991 Coll. (zákon o obecní policii).
This statute regulates the establishment and the supression of the Mu-
nicipal Police, its organization and activities, as well as the status, duties
and mandate of the municipal police officers.
2. The Municipalities Act, No. 128/2000 Coll. (zákon o obcích). This key
act regulates the status and competences of municipalities and their bod-
ies, and the forms of State control over the exercise of independent and
delegated competences by municipalities.
3. The Regions Act, No. 129/2000 Coll. (zákon o krajích). This act regu-
lates the status and competences of regions and their bodies, and the
forms of State control over the regional exercise of independent and del-
egated competences.
4. The Elections to Regional Councils Act, No. 130/2000 Coll. (zákon o
volbách do zastupitelstev krajů). This act regulates the electoral regime
for regional councils, and the range of judicial review of those elections.
5. The Capital city of Prague Act, No. 131/2000 Coll. (zákon o hlavním
městě Praze). This act regulates the status of the Prague as the Capital of
117
stanislav kadečka
the Czech Republic, as a region and a municipality, and the status of the
city districts. Moreover, it regulates its competences, bodies and the
forms of State control over the exercise of independent and delegated
competences by the Capital City.
6. The Elections to Municipal Councils Act, No. 491/2001 Coll. (zákon o
volbách do zastupitelstev obcí). This act regulates, in conformity with
EU law, the requirements for the exercise of the right to vote and to be
elected in the elections to the municipal councils, and the range of judi-
cial review of such elections.
7. The Officers of Territorial Self-Governing Units Act, No. 312/2002 Coll.
(zákon o úřednících územních samosprávných celků). This statute regu-
lates the employment regime of the personnel of local and regional au-
thorities.
Apart from this parliamentary legislation, there are several Government de-
crees as well as Ministries’ ordinances (mainly from the Ministry of the Interi-
or). All these regulations have only an executive character. For example, we
may mention here two of them: the Government’s Decree on the salary and
relationships of the employees of State agencies, other bodies and municipali-
ties; and the Ministry of the Interior Ordinance on specific professional eligibil-
ity of employees of territorial self-governing units.

AUTHORITIES
Modern territorial government in the Czech Republic is structured as a two-

tier public administration, embodied in municipalities and regions. They per-
form not only independent competences (so-called autonomous self-govern-
ment) but also delegated competences (when they act as deconcentrated State
administration, that is, discharging State tasks). This key distinction has impor-
tant legal consequences (see below). The independent competences are autono-
mous powers to act, inherent in the right to self-government and recognised in
the Constitution, under which the territorial government is autonomously ad-
ministered by the respective council. These independent competences may be
interfered by the State only if this is necessary for the protection of the law and
then only in the manner stipulated by law. On the contrary, the delegated com-
petences of regions and municipalities are functions deconcentrated by the
State administration, given to regions and municipalities by sectoral legislation
on the basis of the Article 105 of the Czech Constitution.
It should be noted that, even if all municipalities in the Czech Republic (as
well as regions) are equal as far as self-government is concerned (the extent of
their independent competences is identical), there are three types or degrees of
municipalities from the perspective of the delegated competences (see below).
118
Legal regulations of municipal and regional competences are rather similar, but
there is one essential difference: in the case of delegated competences, the re-
gional authority behaves as a second (appellate) instance and also controls mu-
nicipal bodies when they perform delegated competences.
The independent competences of municipalities include matters that lay in
the interest of the local community as well as matters that are stipulated by
law. Moreover, the independent competences of municipalities include, in par-
ticular, the matters stipulated under sections 84, 85 and 102 of the Municipali-
ties Act. Therefore, the municipality also attends to the fostering of conditions
for the development of social care and to the satisfaction of the needs of its
citizens. This includes, in particular, meeting the needs for housing, the pro-
tection and development of health care, transport and communications, infor-
mation, education and training, general cultural development, and the protec-
tion of public order.
In addition to their independent competences, all municipalities in the
Czech Republic have delegated competences. However, the extension of those
delegated competences differs according to the type of municipality (as pre-
sented at point 2, supra). Thus, the so-called «municipality with a commis-
sioned municipal office» has also delegated competences in those fields that
are not given to a «common» municipality. The delegated competences are
carried out by the «municipality with a commissioned municipal office» not
only in relation to its own territory but also in relation to the administrative
«district» (the «district» is a geographical subdivision of the country that in-
cludes territories of other municipalities). The same rule applies to the so-
called «municipality with enlarged powers». However, this does not mean any
subordination among municipalities (even in the case of the performance of
State administration).
When carrying out delegated competences, the municipal bodies are gov-
erned by acts and other legal regulations, like resolutions and directives of the
central government agencies. These governmental resolutions and directives
may not impose obligations on the bodies of municipalities, unless these obli-
gations are stipulated by the law. Moreover, the municipality actions in the
field of delegated competences are also governed by draft measures and deci-
sions of the regional offices, which may inspect local authorities in the per-
formance of delegated competence. As noted, delegated competences are con-
veyed to local authorities by specific, sectoral legislation, and not by the
Municipalities Act. Nowadays, there are some 150 different sectoral statutes
that delegate the performance of different types of State administration duties
and tasks to municipalities, for example in the following areas: register of in-
habitants; social security; social and legal protection of children; education;
monument preservation; nature conservation and landscape protection; agricul-
ture; transportation; crisis and emergencies management; spatial planning and
Building Code, etc.
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stanislav kadečka
5.1. Introduction
The legal regime of the internal structuring of local authorities (contained in

the Municipalities Act, the Regions Act and the Capital City of Prague Act) is
quite homogeneous: the municipality is autonomously governed by the mu-
nicipal council. Other municipal bodies are the municipal board; the mayor; the
municipal office and special municipal bodies. Differences appear in certain
types of municipalities. Thus:
(a) The «market towns» (městyse, of which there are 206 in the country) are
run by the market town council; other market town bodies are the mar-
ket town board, the mayor of the market town, the market town office,
and special market town bodies.
(b) The «statutory cities»(statutární města, of which there are 23 in the
country) are run the city council, while other bodies of such a city in-
clude the city board, the Lord Mayor, the city office, and other special
bodies. Statutory cities are internally divided into «city districts», or
«boroughs». The former are governed by the council of the city district.
Other bodies of such bodies include the city district board, the mayor of
the city district, the city district office, and special bodies of the city
district. The city borough of a statutory city is governed by the council
of the city borough, and other bodies include, i.a., the city borough
board, the mayor of the city borough and the city borough office.
5.2. The municipal council
The municipal council consists of councillors, whose number shall be deter-

mined for each term of office by the municipal council (not later than 85 days be-
fore the polling day) in accordance with the Municipalities Act and considering, in
particular, the number of inhabitants (5 to 55 members). The mandate of a member
of a municipal council shall commence on his appointment; the appointment is
made on completion of the election. A member of the municipal council executes
his mandate in person and in accordance with his oath and he shall not be bound
by any order. The municipal council shall make decisions in the scope of the inde-
pendent competences of the municipality. A resolution or a decision of the mu-
nicipal council shall be deemed valid if a majority of all members of the municipal
council votes for this resolution or decision. A municipal council shall meet as
necessary, at least once every three months. Meetings of the municipal council are
held in the territorial district of the municipality and are open to the public. Meet-
ings of the municipal council are convened and –usually– chaired by the mayor.
The municipal council may establish committees (although the financial and
controlling committee is obligatory). The committees carry out the tasks dele-
120
gated to it by the municipal council and submit their opinions and proposals to
the said council. The committees are accountable to the municipal council for
its activities. The number of members of a committee shall always be odd. On
the other hand, the municipal council may establish «commissions» as initia-
tive and advisory bodies. These commissions shall submit their opinions and
proposals to the municipal board. A commission shall also be an executive
body if it receives delegated competence pursuant to the Municipalities Act. As
a rule, the commissions are accountable for its activities to the municipal board,
but they are accountable to the mayor in matters concerning the performance of
delegated competence.
The main competences of the municipal council are, inter alia:
– to approve the programme for the development of municipality,
– to publish generally binding regulations of the municipality,
– to call for a local referendum,
– to establish and abolish committees, to elect their chairpersons and other
members, and to recall them from their office,
– to elect the mayor, vice-mayors and other members of the municipal board
(boardlors) and to recall them from their office; to set the number of mem-
bers of the municipal board and the number of members of the municipal
council, to establish and abolish committees, to elect their chairpersons
and other members and to recall them from their office,
– to establish and abolish the municipal police force,
– to decide on the co-operation of the municipality with other municipalities
and on the form of this co-operation,
– to make decisions on the establishment and names of parts of the munici-
pality, and on the names of streets and other public places.
5.3. The municipal board
The municipal board is the executive body of the municipality and is ac-
countable to the municipal council for its activities. Unless stipulated otherwise
by law, the municipal board may not make decisions within the scope of dele-
gated competences. Unless stipulated otherwise by the Municipalities Act, the
powers of the municipal board shall be exercised by the mayor in those mu-
nicipalities lacking a municipal board.
The municipal board consists of the mayor, the vice-mayors (vice-chairper-
sons) and other members of the board, elected from the ranks of the members
of the municipal council. The number of members of the municipal board shall
be odd and shall be a minimum of five and a maximum of eleven members,
with an important caveat: the number of members of the municipal board shall
not be more than one third of the number of councillors. There is no municipal
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stanislav kadečka
board in municipalities whose municipal council has fewer than 15 members.

The municipal board meets as necessary and its meetings are closed to the pub-
lic. The approval of a majority of all members of the municipal board is re-
quired for a resolution or decision to be deemed valid. The municipal board
prepares proposals for meetings of the municipal council and ensures the fulfil-
ment of resolutions adopted by the municipal council. The municipal board
shall ensure decision-making in other matters belonging to the scope of inde-
pendent competence of the municipality, unless these matters are reserved for
the municipal council.
The main competences of the municipal board include, inter alia:
– to set the distribution of powers at the municipal office, to establish and
abolish departments and divisions of the municipal office,
– to appoint and recall the heads of department of the municipal office,
based on proposals by the secretary of the municipal office,
– to establish and dissolve, as necessary, commissions of the municipal
board; to appoint and recall their chairpersons and members,
– to inspect the fulfilment of tasks by the municipal office and commissions
within the scope of independent competence of the municipality,
– to set the total number of employees of a municipality,
– to levy fines in the domain of independent competence of the municipality.
5.4. The mayor
The municipal council elects the mayor and the vice-mayor (or vice-may-
ors) from among its members. The mayor and vice-mayors must be citizens of
the Czech Republic. They are accountable to the municipal council for the per-
formance of their office.
The mayor, who represents the municipality in external affairs, convenes
and, as a rule, chairs the meetings of the municipal council and the municipal
board. With the approval of the director of the regional office, the mayor may
appoint and recall the secretary of the municipal office and specify his salary.
The mayor also carries out the tasks of an employer, concludes and terminates
employment relations with local employees and sets their salary, unless there is
a secretary of a municipal office in the municipality (see below). The mayor
shall also ensure the performance of delegated competence in the municipality
if there is no secretary of the municipal office and shall make decisions on af-
fairs in the scope of the municipality’s independent competences entrusted by
the municipal board.
The vice-mayor shall deputise for the mayor. The municipal council may
elect more than one vice-mayors and authorise them to carry out certain tasks.
The vice-mayor appointed by the municipal council shall deputise for the may-
122
or when the mayor is absent or during periods in which the mayor does not
perform his office. In cases stipulated by separate Acts, the mayor shall estab-
lish special bodies of the municipality for the purposes of performing delegated
competence, and appoint and recall the members thereof.
5.5. The municipal office
The municipal office consists of the mayor, the vice-mayors, the secretary
of the municipal office (if this position is established) and employees of the
municipality. The mayor is the head of the municipal office. The municipal
board may establish departments and divisions for individual sections of ac-
tivities of the municipal office in which the employees of the municipality are
incorporated. In the domain of independent competences, the municipal office
shall fulfil the tasks bestowed on it by the municipal council or municipal board
and shall assist in the activities of committees and commissions. The municipal
office shall also carry out delegated competences, with the exception of matters
that belong to another body of the municipality.
The position of secretary of the municipal office, who is an employee of the
municipality, shall be established in «municipalities with a commissioned mu-
nicipal office» and in «municipalities with extended powers» (on this concepts
see supra). Other municipalities may establish the position of secretary of the
municipal office. The secretary of the municipal office is accountable to the
mayor for the fulfilment of the tasks of the said office in the framework of both
independent and delegated competences. If the position of secretary of the mu-
nicipal office is not established or if no secretary of a municipal office is ap-
pointed, the tasks of this secretariat shall be carried out by the mayor. The sec-
retary of the municipal office shall attend meetings of the municipal council
and municipal board and shall be entitled to cast an advisory vote. He/she may
not hold positions in political parties or movements.
A municipality may cooperate with other municipalities in the performance

of their independent competence. Cooperation among municipalities shall be
carried out by different ways, and in particular:
a. on the basis of an agreement concluded for the purpose of fulfilling a
specific task,
b. on the basis of an agreement for the creation of a voluntary association of
municipalities («dobrovolný svazek obcí»),
c. by the establishment of a separate legal person by two or more munici-
palities.
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stanislav kadečka
Municipalities may also cooperate with local authorities of other countries

and they may be members of international associations of local bodies. Moreo-
ver, Czech associations of municipalities may conclude cooperation agree-
ments with associations of municipalities of other countries. The subject of
cooperation may only be activities that are in the realm of activities of the as-
sociation of municipalities which concluded the cooperation agreement.
Municipalities whose bodies carry out delegated competences in the same
administrative district of a «municipality with extended powers» may conclude
a public-law agreement whereby the bodies of one municipality shall carry out
delegated competence or part of such competence for the bodies of another
municipality (or other municipalities) which is (which are) party to the public-
law agreement. The consent of the regional office is required to conclude a
public-law agreement. On the other hand, several «municipalities with extend-
ed powers», whose bodies carry out delegated competences in an administra-
tive district of a regional office, may conclude a public-law agreement for the
joint provision of delegated competences, but in this case the conclusion of
such an agreement is subject to the approval from the Ministry of the Interior,
which shall issue his decision after discussing the issue with the competent
Ministry or with another competent central government agency.
6. HUMAN RESOURCES
The human resources of local and regional authorities are employed under
the (private law) Labour Code,5 as modified by the Officials of Territorial Gov-
ernments Act. This statute regulates in detail the employment relationship of
officials of local and regional authorities and their requirements in terms of
education, but does not apply to public employees such as, among others, em-
ployees who perform only auxiliary service or manual work. Especially, it reg-
ulates:
– the prerequisites for the creation of employment of the official and the
conditions for appointing officials,
– the public call and the recruitment process,
– the special regulation of employment,
– the basic obligations of public employees.
The mayor is the head of the municipal office (see above).6 The position of
secretary of the municipal office, who is an employee of the municipality, shall
5
State public employees working at the territorial State agencies are employed exclusively
under the terms of the (private law) Labour Code. Although a State Service Act was adopted in
2002, it is still not in force.
6
As stated above (see supra, point 5.3) the municipal board discharges most of the key
competences in the matter of personnel management.
124
be established in «municipalities with a commissioned municipal office» and in

«municipalities with extended powers» (other municipalities may establish this
position on an optional basis). The secretary of the municipal office, who is ac-
countable to the mayor, shall fulfil the tasks of the statutory body of an em-
ployer, in relation to the employees of the municipality working at the munici-
pal office, and set the salary of all such employees.
The income of municipal and regional budgets in the Czech Republic in-
cludes primarily:
– the revenue from their own property, property rights and economic activities,
– the revenue from their own administrative activities (including revenue
from the exercise of deconcentrated State tasks in the form of tariffs), and
the income from collected penalties and levies,
– the revenue from local charges,
– the revenue from taxes or a proportions of taxes,
– subsidies from the State budget and funds, or subsidies from the budget of
the «higher territorial self-governing units».
– financial gifts and contributions.
In the Czech Republic, the so-called «tax and charge» income is the most
important source among the abovementioned types of revenue. For instance, in
2006 this kind of income represented 54% of the total income of municipal
budgets. This includes a proportion of shared taxes and the exclusive tax in-
come.
Under the tax laws and regulations, municipalities in the Czech Republic
share some percentages in the national revenues:
1) 21.4% of the national collection of the value added tax (VAT), the per-
sonal income tax, and the corporate tax; and 60% of the State revenue
coming from the personal tax on business income.
2) 30% of the personal business tax, according to the place of residence of
the taxpayer.
3) 1.5% of the personal tax on non-business income.
For what concerns Regions, they share 8.92% of the State revenue derived
from the VAT, the personal tax on non-business income and the corporate tax.
They are also entitled to a participation in the revenue coming from the tax on
personal business income. The proportion of each municipality in the shared
taxes is mainly determined (94% of it) by applying a group of objective and
technical criteria, such as the number of residents, or the municipality’s size.
The most important tax revenue of municipal budgets is undoubtedly the pro-
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stanislav kadečka
portion of the shared taxes, which represents more than two thirds of the tax
revenue of municipalities. Each region’s participation in the shared taxes is
determined by the financial importance of the competences delegated to the
regions by the State in the framework of the public administration reform.
Municipalities have also exclusive taxes, like the real estate tax and the cor-
porate income tax. As for regions, their only exclusive tax revenue is the reve-
nue of corporate income tax, if the taxpayer is a resident of the respective re-
gion. Among the exclusive tax revenues of local and regional authorities, some
charges and levies may also be mentioned, especially the so-called local charg-
es, which are imposed by municipality’s binding ordinances. However, this
source of income does only represent about 5% of the tax income of munici-
palities.
A general assessment of the situation of municipal and regional income in
the Czech Republic should take in consideration the following two aspects:
first, almost one third of municipal income and roughly two thirds of regional
income are represented by subsidies, coming especially from the State budget
and funds. Second, the taxing powers of self-governments (i.e. the authority to
decide autonomously on the amount of tax revenue) is relatively small. It really
exists only at the municipal level, and only in the field of the real estate tax,
since municipalities may establish one local coefficient of 2, 3, 4 or 5, by a local
regulation, for all realty assets within the territory of the municipality. There-
fore, municipalities can only minimally influence the taxing revenue, and the
regions cannot even influence it at all.
This critical view can also be supported by the fact that the Czech Republic
has not committed itself to be bound by the provisions of Article 9, Paragraph
3, Paragraph 5 and Paragraph 6, ECLSG, which establish e.g. that «at least part
of the financial resources of local authorities shall derive from local taxes and
charges, within the limits of statute, of which they have the power to determine
the rate». Moreover, the bigger cities receive, in a rather unfairly way, almost
a quadruple of income per one inhabitant in comparison with the smallest mu-
nicipalities.
As autonomous public-Law bodies, municipalities and regions in the Czech

Republic necessarily have their own property, which they administer them-
selves. It follows, though, that the State is not liable for the management and the
obligations of a local or regional authority, unless it contractually undertakes
that obligation. The municipality or region maintain legal relations in its own
name and bears responsibility arising out of these relations.
In the Czech Republic, and contrary to other EU countries, the right of local
and regional authorities to administer their own property is principally exer-
126
cised on the basis of private-Law regulations, especially by the Commercial

Code and the Civil Code. At the same time, it is necessary to point out (in ac-
cordance with the judicial practice of the Constitutional Court of the Czech
Republic) that even if municipalities and regions act in matters of private law it
is not possible to ignore the fact that they are essentially governmental bodies.
Therefore, their acts cannot be considered just as if they were, for example,
private undertakers. For that reason, even if local property and its administra-
tion are mainly regulated by private law, the legal scheme on the matter ex-
pressly establishes some special public-Law restrictions and duties. Among the
former stand, for example, the prohibition to guarantee other persons’ obliga-
tions; among the latter stand, for instance, the duty to publish the local body’s
intention to deal with real estate at least 15 days before the decision is made, by
putting an announcement on the official notice board, so that those interested
persons could express their opinions and submit their offers.
Local and regional bodies are also obliged under the Law to protect their
property from damage, misappropriation, theft, misuse or unauthorised use.
The property of local and regional authorities must be used purposefully and
economically in accordance with their interests and tasks. In this sense, the said
authorities are obliged to pay attention to the maintenance and development of
their property and assets. They must also keep records of their patrimony. Local
bodies may exercise, in good time, its right to indemnity and its right to confis-
cate unjust enrichment. Local authorities are also obliged by the law to con-
stantly monitor whether their debtors meet their obligations, and to ensure that
their creditor’s rights are neither limited nor extinguished.
On the other hand, there has been a long debate in the Czech Republic about
a further development of public-Law restrictions and duties in the area of the
management of local property (especially because of efforts to fight corruption)
but we hold the view that such a process would not only endanger the real (eco-
nomic) autonomy of local and regional authorities but it would also be ineffec-
tive and increase the administrative load of self-governments.
It is also worth making reference to the opinion of the Council of Europe
expressed in the Recommendation No R. (98) 12 on supervision of local au-
thorities’ action in which it is recommended (only): (a) to strengthen the trans-
parency of local authorities’ action and to ensure, in general, the public nature
of decisions about financial costs to be borne by the community, as well as the
real possibility for citizens and legal persons concerned to have access to these
decisions; (b) to recognize the essential role of political supervision by citizens.
As mentioned above, the point of departure for the Czech municipal and
regional systems is the so-called mixed (or merged) model, in which regions
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stanislav kadečka
and municipalities exercise, on the one hand, a delegated power from the State
and, on the other hand, its own (or independent) power. The latter is an autono-
mous power, enshrined in the right to self-government and in the applicable
constitutional provisions. These independent competences may be interfered
with by the State only if this is necessary for the protection of the law and can
only be controlled in the manner stipulated by legal procedures. On the con-
trary, when municipalities and regions discharge delegated powers, they act as
deconcentrated State agencies, according to laws and regulations adopted on
the basis of Art. 105 of the Czech Constitution. Therefore, the scope of State
control over local authorities’ actions depends on which type of competences
those bodies are discharging.
The regulation of the State supervision and control over the performance of
competences by municipalities and regions is contained in several statutes: the
Municipalities Act, the Regions Act, the Review of Finances of Territorial Self-
Governing Units Act, the Financial Control in Public Administration Act and
the Code of Administrative Procedure. In this domain, Czech Law distinguish-
es several situations, which are summarily presented:
1) Supervision of the local measures adopted in the framework of inde-
pendent competences: Should a general regulation of a municipality con-
tradict the law, the Ministry of Interior may decide to suspend the effects
of the said regulation and shall submit a proposal for repealing it to the
Constitutional Court. In case that another type of local measure (a reso-
lution, a decision or any adjudication) potentially contradicts the law, the
Ministry of Interior may decide to suspend the effects of the contested
measure and shall submit a proposal for its annulment to the regional
administrative court.
2) Supervision of measures adopted in the framework of delegated compe-
tence: Should a municipal ordinance contradict the law or other legal
regulation, the regional office may decide to suspend the effects of the
said ordinance and shall submit a proposal for the repeal of it to the Con-
stitutional Court. In the case of other measures (resolutions, decisions)
contradicting a legal rule, a government resolution or a directive of a
central administration office, the regional office shall repeal it.
3) Control of the performance of the independent competences of a mu-
nicipality: this control (implemented by the Ministry of the Interior)
aims at finding out if the municipal bodies adhere to laws and other legal
regulations in the performance of the independent competence.
4) Control of the performance of the delegated competence of a municipal-
ity: the regional offices do control the performance of the competences
delegated to the municipal bodies. This control purports to check wheth-
er the municipal bodies, in the performance of the delegated compe-
tence, comply with the laws, administrative regulations and act within
the limits of Government resolutions and directives.
128
5) Review of finances of self-governments: A municipality shall have the

municipality’s finances for the previous year examined by the regional of-
fice or an auditor. During this review the compliance with obligations
stipulated by special legal regulations (in particular regulations on finan-
cial managing of territorial units, on management of territorial unit’s prop-
erty), the compliance of managing finances with budget rules is verified.
6) Appellate procedure and review proceedings against administrative de-
cisions issued by a municipality (both in the framework of independent
and delegated competences). The appellate administrative body may not
alter, by its decision, a decision of local or regional authority issued
within its independent competence. It may only abolish it and discon-
tinue the proceedings or abolish it and return the case back for new con-
sideration, if the appellate administrative body concludes that the chal-
lenged decision is contrary to legal regulations or is incorrect.
Municipal and regional authorities can also be controlled by the Ombudsman,
who protects the people against the conduct of authorities and other institutions
if the conduct is against the law, does not correspond to the principles of a demo-
cratic State of Law and the principles of good administration, or the authorities
are inactive. This control, however, is restricted to the exercise of local delegated
competences. Therefore, the ombudsman cannot control the decision-making of
self-governing municipalities and cities in cases such as the assignment of mu-
nicipal flats, disposal of municipal assets, approval of zoning plans, etc..
The ECLSG (see point 3, above) states 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 en-
shrined in the constitution or domestic legislation». The necessary legal protec-
tion of territorial self-government is in the Czech Republic provided mainly by
the following institutions and mechanism. First, there is a statutory regulation
of State control (as presented supra), which, in substance and procedurally,
limits the State powers to supervise and control local authorities. Moreover,
certain control powers are reserved to the courts, which decide in the proceed-
ings where the local government unit is the full decision-maker.
Second, and besides the standard protection of subjective rights provided by
the general and administrative courts to all persons, Czech law gives self-gov-
ernments two other instruments. On the one hand, in the case of a local council
dissolution, the municipality has got a specific legal action against the decision
of the Ministry of the Interior by which the local council is dissolved. On the
other hand, a competence action, based on which the Supreme Administrative
Court decides on a dispute about competences, whose parties are a State agency
and a local or regional authority.
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stanislav kadečka
Thirdly, there is a special instrument for the constitutional guarantee of local

autonomy, the so-called «local constitutional complaint». This can be submit-
ted by a municipal or regional council if it claims that the State unlawfully in-
terfered with its guaranteed autonomy as a local or regional authority. Thus,
this specific constitutional complaint can be used to protect local and regional
authorities against a State encroachment of both unconstitutional and unlawful
character. However, in all cases there must be a violation of the right to self-
government. Consequently, this procedural device is not designed to adjudicate
alleged violations of public subjective rights of a municipality or a region, as a
common legal person. Moreover, the «local constitutional complaint» may not
be used by local and regional authorities in the case of delegated competences.
The European Union is (and remains to be) a community of national states.

Whereas the interests of each Member State are advanced by State representa-
tives in the European Council, regional and local interests are taken into ac-
count formally only within the Committee of the Regions, which is an advisory
body of the European Union consisting of the representatives of regional and
local bodies, established by the Maastricht Treaty. According to the provisions
of Art. 300 par. 3 of the Treaty on the Functioning of the European Union, the
Committee of the Regions shall consist of representatives of regional and local
bodies who either hold a regional or local authority electoral mandate or are
politically accountable to an elected assembly.7
The Czech delegation in the Committee of the Regions consists of 12
members and an equal number of alternates. The current distribution of seats,
both for members and alternates, is as follows: 7 members/alternates delegat-
ed by the Association of the Regions of the Czech Republic and 5 members/
alternates delegated by the Union of Towns and Municipalities of the Czech
Republic (ZMOS). There is no legal basis for the nomination of the Czech
Committee of the Regions delegation, other than Article 305 of the Treaty on
the Functioning of the European Union. The current composition of the Czech
delegation is based on governmental decree No. 1372 November 2005. All
Czech members and alternates of the Committee of the Regions are directly
elected members of regional or municipal councils (most of them are presi-
dents of regions) and their term of office is terminated if they lose their na-
tional mandate8.
7
On the other hand, we should recall that there are presently 20 permanent committees in the
European Parliament, of which one is the Committee for the Regional Development.
8
Source: Studies’s service of the Committee of the Regions: The selection process for Com-
mittee of the Regions members Procedures in the Member States. Belgium: European Communi-
ties, 2009.
130
The Committee of the Regions is a concrete example of the principle of

subsidiarity. This is a body through which the regional and local administra-
tions may influence decision-making of the European Union. Therefore, the
Union has to explain in advance what impact on regional and local administra-
tion its decisions will have. It increases the importance of the regions and mu-
nicipalities during the functioning of the European Union. The Committee of
the Regions has an opportunity to express its opinion on all legislative initia-
tives that are important for regions and municipalities and it may be used for
proposing new ideas for the development of European legislation.
Moreover, participation of local and regional authorities in the implementa-
tion of EU structural funds is of key importance. For the purposes connected
with the use of financial means from the European structural funds, eight re-
gions were established in the Czech Republic by the 2000 Support to Regional
Development Act. The territory of these regions, so called »cohesion regions»,
corresponds to the NUTS II territorial statistical units of the EU.
12.1. Landmark cases and decisions on local government
Decision of the Constitutional Court of the Czech Republic, Pl. ÚS 9/07, of 1

July, 2010, on the petition for annulment of § 29 of Act No. 229/1991 Coll.,
on the Ownership to Land and Other Agricultural Property (http://concourt.
cz/views/5785)
Decision of the Constitutional Court of the Czech Republic, IV. ÚS 1403/09, of
19 April, 2010, on the local referendum abouy the separation of part of a city
and the right of a citizen of the EUto participate in the government of mu-
nicipalities (http://www.concourt.cz/clanek/4-1403-09)
March, 2007, on the Binding Ordinance to Manage Local Matters of Public
Order (http://www.concourt.cz/clanek/pl-69-04)
September, 2006, on the Act on Public Non-Profit Institutional Medical Fa-
cilities (http://www.concourt.cz/clanek/pl-51-06)
June, 2005, on the Binding Ordinance on Local Fees (http://www.concourt.
cz/clanek/pl-51-06)
August, 2003, on the Act no. 290/2002 Coll., on the Transfer of Certain
Other Things, Rights and Obligations of the Czech Republic to Regions and
Municipalities, Civic Associations in Physical Education and Sport (http://
www.concourt.cz/clanek/pl-05-03)
131
stanislav kadečka

February, 2003, on the Act no. 320/2002 Coll., Amending and Repealing
Certain Acts in Connection with Ending the Activities of District Offices
(http://www.concourt.cz/clanek/pl-34-02)
December, 2002, on the Generally Binding Ordinance on a Local Fee for
Operation of the system of Communal Waste (http://www.concourt.cz/
clanek/pl-16-02)
Havlan, P.: Majetek obcí a krajů v platné právní úpravě. (Property of munici-
palities and regions under the legal regulation in effect.) 2nd edition. Praha:
Linde, 2008.
Kadečka, S.: Právo obcí a krajů v České republice (Law of municipalities and
regions in the Czech Republic). Praha: C. H. Beck, 2003.
Kadečka, S.; Havlan, P.; Valachová, K. (eds.): Právní regulace místní (a
regionální) samosprávy: sborník z 4. letní mezinárodní konference/work-
shopu: (Kroměříž, Právnická fakulta Masarykovy univerzity a Veřejný
ochránce práv, 19. - 20. června 2008). (Legal Regulation of Local (and Re-
gional) Self-Government).Brno: Masarykova univerzita, 2008.
Kopecký, M.: Právní postavení obcí a krajů – základy komunálního práva.
(Legal status of municipalities and regions – basis of communal law). Praha:
Wolters Kluwer, 2010.
Koudelka, Z.: Samospráva. (Self-government). Praha: Linde, 2007.
Marek, J.; Pánková, M.; Šímová, P. (eds.): Public Administration in the Czech
Republic. Praha: Ministry of the Interior of the Czech Republic, 2004.
Pařízková, I.: Finance územní samosprávy. (Finances of territorial self-gov-
ernment). Brno: Masarykova univerzita – Právnická fakulta, 2008.
Peková, J.: Hospodaření a finance územní samosprávy. (Management and fi-
nances of territorial self-government). Praha: Management Press, 2004.
Association of Local Self-Governments of the Czech Republic: http://smscr.cz/

Association of Regions of the Czech Republic: http://www.asociacekraju.cz/
vismo5/dokumenty2.asp?id_org=450022&id=151529&p1=32275
132
Constitutional Court of the Czech Republic: http://www.concourt.cz/clanek/

urlMethodCall/sessionContext/
Czech Statistical Office: http://www.czso.cz/eng/redakce.nsf/i/home
Institute for Public Administration Prague: http://www.institutpraha.cz/en
Ministry of the Interior of the Czech Republic: http://www.mvcr.cz/mvcren/
scope-of-activities-public-administration.aspx
Ministry of Regional Development of the Czech Republic: http://www.mmr.cz/
Public Administration Portal: http://portal.gov.cz/wps/portal/_s.155/19005
Supreme Administrative Court of the Czech Republic: http://www.nssoud.cz/
Uvod/art/1
Union of Towns and Municipalities of the Czech Republic: http://www.smocr.
cz/default.aspx?languageCode=EN
133
Chapter 6:
LOCAL GOVERNMENT IN DENMARK
Emil GREVE
Denmark has a long history of local self-government. Since the middle ages
there has been some form of local authority with shifting levels of self-govern-
ment. In 1849 local self-government was given constitutional protection. Prior
to 1849 the municipalities had only administered the school system and the
poor-law system. After 1849 more and more legislation was passed, increasing
the municipalities’ areas of statutory responsibility. Since the 1860s the mu-
nicipalities have been undertaking tasks without statutory authority. This was
unchallenged by Parliament and it evolved into the customary «local authority
mandate». This mandate and its limits are based on general considerations and
the rationale of local self-government.1
The first local government reform was enacted by Parliament in 1970. The
reform greatly reduced the number of the local authorities to 275 municipalities
and 13 county authorities. The county authorities’ tasks typically required a
larger population base than that of the average municipality or they required a
higher level of specialisation. Both the municipalities and county authorities
had taxing authority and non-statutory municipality authority. The second local
government reform was enacted in 2007. The reform reduced the number of
municipalities to 98 and replaced the 13 county authorities with 5 regions. The
main idea behind the municipalities is that some tasks are better dealt with lo-
cally, because they require knowledge of local citizens’ daily concerns. The
regions are not just large municipalities; they are a special kind of decentralised
authority. The main difference between the former county authorities and the
new regions is that the regions do not have a local authority mandate or any
taxing authority. The county authorities had taxing authority, which made it
1
The local authority mandate is further described in section 4: Competences, powers and
services of local authorities.
135
emil greve
almost impossible for the national government to control the aggregate tax lev-
el in the country.
The most important aims of the reform were to remove taxing authority
from the county authorities and to make clear distinctions between the tasks of
the State, the regions and the municipalities. Almost all the former county au-
thorities’ tasks have been given to the municipalities. The regions have been
given one main task, to administer the health sector. Both prior to and since the
reform there has been a debate about its expediency and legality.2 The new re-
form has been much criticised and it has been accused of being a threat to local
democracy and self-governance.
One of the consequences of the second local government reform is that the
average municipality now has 55,000 inhabitants, compared to an average of
19,000 inhabitants before the reform. The municipalities now manage tasks of
a magnitude that could just as well be managed by State authorities, for exam-
ple integration and language education, employment and active employment
efforts, environmental protection, schools, utilities and emergency services. It
has been argued that it is very far from the original idea of local self-governing
bodies managing local tasks to have such substantial administrative bodies
managing many tasks that are traditionally those of the State.
As a result of technological developments the public authorities have un-
dergone extensive digitisation over the last ten years. There is an ongoing
debate about the extent to which the municipalities should embrace new
technology, and how they should deal with the legal challenges of a digitised
administration. Experts have estimated that the municipalities can achieve
cost savings of EUR 14 million in the handling of mail alone, by sending e-
mails to citizens via especially secure e-mailboxes.3 The practical challenges
are to develop good e-solutions and to motivate citizens to communicate
with the municipalities electronically. The legal challenges lie in applying
the normal rules of administration to digitised administration. It is interest-
ing to ask what solutions a municipality must provide for its citizens if it
decides to use digital communications exclusively. For example, is it suffi-
cient to make computers publicly available in places like town halls and
public libraries or must a municipality provide home computers for all citi-
zens who cannot afford one?
The municipalities are responsible for all employment and active employ-
ment efforts in Denmark. During the next couple of years the municipalities
must prove that it was right to give them full responsibility in this area. In the
face of the current financial crisis and rising unemployment, this may very well
prove to be a very difficult and expensive task.
2
See section 3: The current basic legal framework of local government and local autonomy.
3
Local Government Denmark: http://www.kl.dk/Kommunalpolitik1/Artikler/73076/2010/06/
Digitalisering-frigiver-105-mio-kr-til-borgernar-service/
136
local government in denmark
Local administration in Denmark can be categorised in two groups; dispersed

administration and decentralised administration. Dispersed administration con-
sists of local departments of State bodies, which are thus part of the State’s ad-
ministrative hierarchy, for example police districts. Decentralised administration
consists of authorities elected by local people and is not part of the State admin-
istrative hierarchy. In the context of local government, it is only relevant to dis-
cuss decentralised administration. The most important examples of decentralised
administration are the municipalities (Kommunerne) and the regions (Region-
erne). There are 98 municipalities and 5 regions in Denmark. The municipalities
and the regions are independent of the central government, so that the Ministry of
Interior and Health cannot exercise control over them or issue administrative or-
ders unless otherwise provided by law. The regions and municipalities are not
placed in a communal hierarchy, but are independent of each other.
Local self-government is protected by Article 82 of the Constitution which

state that: «Municipalities’ right to manage their affairs autonomously under
the supervision of the State is regulated by an Act.»
This means that the municipalities’ autonomy cannot be overturned by law
and that it must be substantive. The Constitution does not specify the extent of
local autonomy and it is difficult to determine the minimum substantive thresh-
old. The extent of the constitutional protection has been subject to intense de-
bate for many years. Today, scholars broadly agree that it is impossible to de-
termine the minimum threshold of local government authority protected by the
Constitution, which means that taxing authority and the local authority mandate
are not protected by the Constitution. The Constitution’s requirements can be
described as meaning that the country must be geographically divided into
smaller units, each with a degree of autonomy, and that these units undertake
one significant task or a number of smaller tasks.4
Denmark ratified the European Charter of Local Self-Government in 1988.
To understand the level of protection given by the Charter, it is necessary to
explain a basic feature of the Danish legal order. In Denmark, the Constitution
has priority over regular legislation (both statutory and non-statutory), and leg-
islative acts have priority over administrative regulations. The Charter has the
force of a legislative act, which means that the legislature is bound to respect it,
unless the legislature chooses to renounce the Charter by a law. The Charter has
not had much impact in Denmark and it has only been relied on in legal argu-
4
Revsbech, Karsten: Kommunernes opgaver, 2nd ed., 2010, p. 19.
137
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ment once. In connection with the debate about the second local government
reform, the Association of County Councils pleaded that it was contrary to Ar-
ticle 9(3) of the Charter for the new regional councils to be financed only by a
State hospital tax. This argument was rejected, mainly because when depositing
its instrument of ratification, acceptance or approval, each party to the Charter
may specify the categories of local or regional authorities to which it intends to
apply the Charter or exclude from its scope.5 Furthermore, the Charter does not
require there to be more than one level of local self-government, so that as long
as Denmark has municipalities with taxing authority it is not in breach of the
Charter.
In 2008, Denmark declared that in future the Charter would only apply to
municipalities, and repeated that the Charter does not apply to Greenland and
the Faeroe Islands. This was presumably in order to avoid future discussions
about which local authorities the Charter applies to.
There are a number of other laws that contribute to the procedural frame-
work of the municipalities; three of these are mentioned here:
– The Local Government Act is by far the most import legislation governing
the municipalities. It contains the rules on how the municipalities are to be
organised, meeting and voting procedures, the election and powers of may-
ors, financial administration, supervision, control and potential sanctions.
– The Local and Regional Government Election Act contains rules on elec-
tion procedures and deals with the questions of who has the right to vote
and the right to be elected.6
– The Act on municipalities undertaking tasks on behalf of other public au-
thorities and participation in undertakings by municipalities and regions
governs situations in which municipalities can cooperate with other public
authorities and expands the area in which municipalities can cooperate
with the private sector.7
A municipal council has a dual function. Its primary function is to be the
leading body of the municipality; this is seen when a council decides to use the
municipality’s finances to undertake different tasks. A council’s right to do so
is based on the local authority mandate. A council’s secondary function is to
act as a regular public authority when administering laws and tasks delegated
by legislators, for example when a council issues injunctions under the Envi-
ronmental Protection Act or assigns children to schools. There are many stat-
utes that impose tasks on the municipalities and, together with the local au-
thority mandate, they constitute the substantial basis for the municipalities’
5
See the European Charter of Local Self-Government, Article 13.
6
Local and Regional Government Election Act, Law No 144 of 24 February 2009.
7
The Act on municipalities’ undertaking of task on behaves of other public authorities and
municipalities’ and regions’ participation in corporations (Law No 548 of 8 June 2006).
138
tasks.8 It is not appropriate to give a detailed account here of the various stat-
utes that impose tasks on the municipalities. The important thing to note is that
the municipalities deal with a great variety of tasks required by the legislature,
some of which are very substantial.9
Municipalities adopt their own rules of procedure, see the Local Govern-
ment Act, Section 2(4). The rules of procedure normally contain rules on con-
vening meetings, approving the order of business, voting etc. The municipali-
ties do not have an unlimited right to make their rules of procedure. They are
still bound by the procedural rules in the Local Government Act, for example
the rule that council meetings must in principle be open to the public. The mu-
nicipalities are also bound by the Public Administration Act and fundamental
principles of administrative law.
As for the capital city, Copenhagen has enjoyed a special status in Denmark
since its citizens heroically defended the city against the Swedish army in 1659.
Today the municipal council of Copenhagen is called the City Council and its
mayor is called the Lord Mayor. The Council has seven committees that take care
of the management of tasks within their areas of responsibility. Overall decisions
are made by the City Council as a whole. This is similar to the usual system in the
municipalities. The difference is that in the City Council, each committee chair-
man is called a «mayor» and is an ex officio member of the Finance Committee.
Furthermore each committee chairman is the top executive of the administration
dealing with the respective committee’s area of responsibility.

AUTHORITIES
As a general rule Danish authorities cannot act unless they have statutory
authority to do so. Many statutes require the municipalities to undertake certain
tasks or provide certain services. These statutes also give authority to act and
use funds to provide the services. These laws often grant authority to use en-
forcement notices, prohibitions, make inspections, impose default fines, expro-
priate private property etc. Rulemaking capacity can also be granted to the mu-
nicipalities by law. An example is the Environmental Protection Act, Section
45(4), which states that «The municipal council lays down regulations concern-
ing the extent and organisation of municipal waste management.»10
Apart from statutory authority to make rules, the municipalities have a non-
statutory authority to issue rules on institutional matters. When a municipality
8
The rules of local government authorisation are further described in section 4: Compe-
tences, powers and services of local authorities.
9
Further described in section 4: Competences, powers and services of local authorities.
10
The Environmental Protection Act, Law No 879 of 26 June 2010.
139
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establishes and runs an institution, it can make rules of conduct so that, for in-
stance, a municipality can exclude dogs and other animals from libraries or
prohibit the use of alcohol in rehabilitation centres. The reasoning behind this
authority is that if a municipality has the authority to establish and run an insti-
tution, a fortiori it has the authority to make the rules of conduct that are neces-
sary to fulfil the purpose of the institution. This authority is based on customary
law and it must be proportionate to the purpose of the institution. This author-
ity can never be used to make restrictions on personal freedom, as such restric-
tions would require explicit authority by law.11
Danish law gives municipal councils a relatively independent position.
They are distinct legal persons and as such are capable of owning property,
initiating legal proceedings etc. In this they differ from government minis-
tries or State committees, which are not distinct legal persons and whatever
property they may have at their disposal is owned by the State. Furthermore,
the municipalities have their own funds from local taxation and from block
grants from the State. As a result of the councils’ independent position and
their own funding, it is accepted that they can make financial arrangements
without statutory authority. This non-statutory unwritten authority is called
the «local authority mandate» (Kommunalfuldmagten)12 and will be described
further below.
Prior to the second local government reform, the municipalities provided a
sizeable part of the traditional welfare services, while the State and the county
councils provided the remainder of the welfare services. One of the aims of the
second local government reform was to make clear distinctions between the
tasks of the State, the regions and the municipalities, and to increase the amount
of welfare services provided by the municipalities.
Today the municipalities are required to provide more services than before
the reform. The extent of the services can be specifically determined by law so
that it is mandatory for the municipalities to provide services to the extent spec-
ified. However, a law can also allow municipalities to determine the extent of a
service provision. In such cases the extent of a service will be based on political
choice or on a discretionary assessment of needs and will differ between mu-
nicipalities. A law will typically contain some specific mandatory require-
ments, and leave some scope for discretion. For example, according to the law
on day-care provision, a municipality must provide a specific number of places
in day-care institutions, but the municipality can decide on the number of insti-
tutions and carers required for the task. 13
11
Garde, Jens et al.: Forvaltningsret – Almindelige emner, 5th ed., 2009, p. 172 f.
12
Revsbech, Karsten: Chapter 7 in Børge Dahl, Torben Melchior and Ditlev Tamm (eds),
Danish Law in a European Perspective.
13
Local Government Denmark (LGDK), The Danish Local Government System, February
2009, p. 13.
140
Decisions on the allocation of services are often discretionary, but some

decisions are non-discretionary. Most municipals functions are managed with
full discretion, except for some social benefits such as old age pensions. It is not
appropriate to describe in detail here every law that obliges municipalities to
provide services, but the following is a list of the municipalities’ areas of re-
sponsibility according to the law:14
– Childcare
– Primary and lower secondary schooling
– Special education for adults
– Elderly care
– Health (prevention, all care and rehabilitation that is not provided by hos-
pitals, treatment of substance abusers, dental care and social psychiatry)
– Employment: active employment efforts
– Integration and language education
– Nature conservation, the environment and planning: including drawing up
municipal plans, wastewater plans, waste disposal plans, and water supply
plans.
– The local road network
– Participation in regional traffic undertakings
– Utilities and emergency services
– The social sector: financing, provision and administration
– Serving citizens in the area of tax, and tax collection in cooperation with
the State tax authorities
– Libraries, music schools, local sports facilities and other cultural activities
– Local business services and tourist promotion.
As mentioned earlier, in Denmark the municipalities have a non-statutory
authority to provide services and make financial arrangements. This authority
can never be used to make restrictions, for example on personal freedom, as
such restrictions would require explicit authority by law.15. The municipali-
ties typically use this authority to provide different types of financial support,
for example cultural and local business support and to make facilities avail-
able for citizens and the local business community, such as sports facilities,
meeting halls or concert halls.16 Since the authority concerns local govern-
ment, the local authority mandate is not without limits so that financial ar-
14
The Ministry of Finance: http://www.fm.dk/Arbejdsomraader/Kommuner%20og%20re-
gioner/Opgaver%20for%20kommuner%20og%20regioner.aspx
15
Garde, Jens et al.: Forvaltningsret – Almindelige emner, 5th ed., 2009, p. 172 f.
16
Revsbech, Karsten: Kommunernes opgaver, 2nd ed., 2010, p. 25 f.
141
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rangements must at least have a local aim. Furthermore, other legal doctrines
limit a municipality’s authority to make financial arrangements. There are
several works on this issue in the Danish legal literature; a full discussion of
this topic is not possible in the present context, but the following is a brief
review of the main requirements that must be met if a municipality uses the
local authority mandate:
– The arrangement must be for the common good. This requirement is vague
and it is hard to determine precise limits to the local authority mandate on
the basis of it. But it expresses the idea that an arrangement must have a
general purpose and be for the benefit of the citizens in general.17
– The arrangement must be of municipal interest. The «municipal inter-
est» is to a great extent determined by tradition, which can be derived
from case law and administrative practice. «Municipal interest» is not
static, but changes over time, which is why it can be difficult to define it.
In attempting to define a «municipal interest», one can start by determin-
ing what a municipality is and what it does. A municipality is an asso-
ciation of citizens within a geographically defined area who tackle com-
mon challenges together. An activity will therefore be of municipal
interest if it accommodates a common need of the local society that con-
stitutes the municipality.18 This does not mean that every citizen in the
municipality must have that specific need, but that in principle all or
many of the municipality’s citizens can benefit from a measure. The
consequence of this requirement is that a municipality cannot give finan-
cial or social support to individuals or groups of individuals without
statutory authority.
The principle of locality is connected with the requirement for a municipal
interest. The principle states that a municipality can only undertake tasks that
are connected to the interests of that particular municipality. The main rule is
that an activity must be located within the borders of the municipality and can
only exceptionally be located outside its borders, if it is necessary or natural to
do so. Furthermore, the principle states that municipalities cannot undertake
tasks that are properly those of other levels of administration, such as regional
or State tasks. The level of administration to which a certain task belongs can
be difficult to determine, but as mentioned earlier one of the purposes of the
second local government reform was to clarify which tasks are those of the
municipalities, and which are those of the regions and the State. Municipalities
must also respect the private sector, so that in principle municipalities should
only undertake business tasks or support private companies when authorised to
do so by law.19
17
Revsbech, Karsten: Kommunernes opgaver, 2nd ed., 2010, p. 51 f.
18
Revsbech, Karsten: Kommunernes opgaver, 2nd ed., 2010, p. 53 ff.
19
Revsbech, Karsten: Kommunernes opgaver, 2nd ed., 2010, pp. 58 ff. and 95 f.
142
The basic organisation of Danish municipalities will be described briefly,

followed by a closer examination of its different parts. A municipality is gov-
erned by a council (kommunalbestyrelsen), which is elected by the local citi-
zens. The council normally forms committees to manage the committees’ areas
of responsibility. Other organisational models are possible, such as the model
of the City Council of Copenhagen, but these are not described further here.
Day-to-day management is carried out by the municipal administration (kom-
munalforvaltningen). The chairman of the council is the mayor and he or she is
the chairman of the finance committee and the top manager of the municipal
administration.
All 98 municipalities are members of Local Government Denmark (LGDK),
which is an interest group and association of Danish municipalities. LGDK
describe its purpose as follows: «The mission of LGDK is to safeguard com-
mon interests of the municipalities, assist the individual municipality with con-
sultancy services and in addition ensure that the local authorities are provided
with up-to-date and relevant information.»20 LGDK is a very powerful organi-
sation and is sometimes referred to as the fourth power of State. This is of
course an exaggeration, but LGDK has significant influence on the political
decision-making process on questions concerning local government.21
A municipal council is elected by the citizens of the municipality. The right
to vote in municipal council elections is given to anyone who has turned 18
and has a fixed abode and has either Danish citizenship, EU citizenship, Nor-
wegian or Icelandic citizenship or has had uninterrupted residence in Denmark
for the previous 4 years. Anyone is eligible for election if they have estab-
lished the right to vote by twelve o’clock on the Monday, 22 days prior to
polling day, unless that person has been convicted of a crime that makes them
unworthy to hold a seat in the council. In principle, anyone who is eligible has
as a duty to accept election, even if they have not volunteered to stand for
election.22
Different political parties compete for representation in the council. Typi-
cally the parties are local divisions of national parties, but there can also be
entirely local parties. In municipalities with more than 20,000 inhabitants, there
must be must be an odd number of council members, with at least 19 and no
more than 31; in Copenhagen the maximum number is 55. In municipalities
with fewer than 20,000 inhabitants, there must be an odd number of council
20
Local Government Denmark: http://www.kl.dk/English
21
Blom Hansen, Jens: Den fjerde statsmagt? Kommunernes Landsforening i dansk politik,
Chapter 8.
22
See the Act on election to municipal councils and region councils, especially Sections 1,
3, 4 and 92.
143
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members, with at least 9 and no more than 31. The precise number of council
members is decided by each council.23
The council carries out its activities in meetings, and as a rule these meet-
ings are held in public. A council will reach the legal quorum when at least half
its members are at a meeting. All the council’s decisions are made by a simple
majority.24
As mention in section 3, a municipal council has a dual function; it is primarily
the leading body of the society of citizens within the municipality and secondarily
it is a regular public authority. The powers of a council depend upon whether it is
acting in its primary or secondary function. When acting in its primary function a
council has powers under the local authority mandate and the Local Government
Act. When acting in its secondary function its powers depends on what is author-
ised by the specific law.25 The most important powers of a council are those under
the local authority mandate and its power to decide the local tax rate. Citizens have
to pay income tax to the municipality (local tax) as well as to the State. The State
income tax is the same throughout the country, but each municipal council sets the
rate of the local tax.26 This means that the aggregate tax burdens of citizens differ
from one municipality to another. For example, the highest local tax rate in Den-
mark is 27.8% (in Langeland) and the lowest is 22.8% (in Gentofte).27
The council’s power to set the local tax rate has lost some of its significance
since the Liberal-Conservative Government came into office in 2001. This re-
sults from the Government’s election promise to freeze the tax level. As men-
tioned above, the municipalities are independent of the Government, so it
would require an amendment to the municipal tax law to enforce this promise.
The Government chose not to freeze local taxes by amending the law; instead
it stated that if a municipality raised its local tax, it would lose an equivalent
amount of its block grant, which the Government does have power over.28 Usu-
ally a council establishes a finance committee plus one or more permanent
committees at its constituting meeting. The council decides on the number of
committees, but it can choose not to have any committees and either deal with
every case in the full council or delegate cases to the mayor. In practise very
few municipalities depart from the normal committee structure.
Committee members are chosen from among the council’s members. There
must be an odd number of committee members, and they may not exceed half
23
The Local Government Act, especially Section 5.
24
The rules of normal procedure Sections 1 and 4; and the Local Government Act, Section
10 (Law No 1440 of 1 November 2010).
25
See section 4: Competences, powers and services of local authorities.
26
The Municipal Income Tax Act, Section 6.
27
Statistics from the Ministry of Taxation: http://www.skm.dk/tal_statistik/kommuneskat-
ter/8328.html
28
See section 7: Financial resources of local government.
144
the number of the council. A permanent committee manages the committee’s

area of responsibility. This means that a committee decides on ordinary every-
day cases in its area of responsibility or make decisions that are a natural and
necessary part of the management of its area of responsibility. This applies un-
less the council decides otherwise, has decided a similar case or it otherwise
follows under the law. A committee’s authority to decide on ordinary cases is
based on delegated powers. Each member of the council can bring any case be-
fore the full council and thereby move it from a committee’s remit to the council.
Decisions that are not of an administrative nature must always be decided by the
council. In these cases the committee prepares the decisions for the council.29
The finance committee has insight into all the financial and administrative
circumstances of all areas of the municipality’s administration. The finance
committee must make a report on every case that has a financial aspect before
it is presented to council for a decision. This means that the finance committee
has a tremendous influence on the work of the other committees, as it is un-
likely that the council will carry a proposal against the advice of the finance
committee. This illustrates the general purpose of the finance committee, to
have a coordinating and unifying function in the municipality.
The committees carry on their activities in meetings which are not open to
public, in contrast to council meetings. A committee will be quorate when at
least half of its members are present. All the committee’s decisions are made by
a simple majority.30 The council elects its chairman – the mayor – from among
its members at the constituting meeting. The mayor holds office until end of the
council’s term of office and he or she cannot be deposed unless they repeatedly
neglect their responsibilities. In this case, the council can appoint another per-
son to attend to the mayor’s tasks.31
The main function of the mayor is to coordinate and unify the many conflict-
ing interest in the municipality, as reflected in the council members’ different
political views. This function is similar to that of the finance committee, which
is why the mayor is ex officio chairman of this committee. The mayor con-
venes, prepares and leads the councils meetings. On urgent matters or on mat-
ters that do not give rise to any doubt, the mayor can make decisions on behalf
of the council.32 The mayor’s power to make such decisions is very limited and
is reserved for special cases. For example, the mayor can decide to lock the
doors of the town hall if a demonstration is trying to break in.
The mayor is the top manager of the municipal administration and as such is
formally responsible for the administration to the council.33 This, combined with
29
The Local Government Act, Section 17.
30
31
32
33
The Local Government Act, Section 31(3).
145
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the finance committee’s insight into all the financial and administrative matters,
constitutes a principle of unification in the municipality’s administration.
The municipal administration is organised as a traditional hierarchy with the
mayor as the top manager. The administration is often led by a chief executive
appointed by the council, but it is optional for a council whether or not to ap-
point a chief executive. A chief executive is responsible for all administrative
matters, for example working conditions, employment of the administrative
personnel, work procedures etc. A municipal administration is comprehensive
and consists of many small units, for example each day-care centre, nursery,
social security office, council school etc. is part of the administration. Munici-
pal employees constitute 22% of all employees in Denmark and 60% of all
public employees.34 This illustrates that the municipalities play a major part in
public administration in Denmark.
Municipalities can cooperate with each other in ways that limit a council’s
authority, if the supervisory authority approves.35 This rule covers cases where
authority is transferred and a council’s authority is thereby limited (inter-mu-
nicipal cooperation). The rule does not cover the delegation of authority, be-
cause delegation of authority can always be revoked. Cooperation between mu-
nicipalities based on delegation can be established without statutory authority.
Inter-municipal cooperation (Kommunale fællesskaber) can take many struc-
tural forms, but it will often be organised in a private law form of organisation
(not as a limited company). The deciding factor is not the form of organisation,
but whether the inter-municipal cooperation is based on a transfer of authority
or delegation. Once the inter-municipal cooperation is approved, an administra-
tive body is established. Often agreements on inter-municipal cooperation will
contain provisions on the extent to which the Local Government Act applies to
the administrative body. When an issue is not dealt with in the agreement, the
Local Government Act is used to fill in the agreement.
An administrative body for carrying out inter-municipal cooperation is a
distinct legal person and part of the public administration, which means that
among other things the Public Administration Act and The Law concerning
Access to Public Records apply.
6. HUMAN RESOURCES
Municipalities have the power to select and manage its own human resourc-
es. Of course, this is limited by general employment law and by the municipal-
ity’s finances. The chief executive is responsible for employing all the admin-
34
Memorandum from Local Government Denmark: http://www.kl.dk/ImageVault/Images/
id_43722/ImageVaultHandler.aspx
35
146
istrative personnel and for ensuring health and safety at work. In close
cooperation with the council, the chief executive decides the terms of employ-
ment, unless otherwise determined by law or by a collective agreement. The
municipalities employ a vast variety of categories of employee, from teachers
to road workers. As a consequence there is a variety of terms of employment,
as each category of employee has its own collective agreement. It is not appro-
priate to describe every category of employee and its collective agreement, so
the following looks at the main categories of employment.
From an overall perspective, there are two main types of employees in the pub-
lic sector: on the one hand, those who are appointed on the basis of a collective
agreement (Overenskomstansatte), and on the other hand, administrative civil
servants (Tjenestemænd). Those appointed on the basis of a collective agreement
enjoy no special legal status and their terms and conditions of employment are
determined by normal employment law and their applicable collective agreement.
In contrast, administrative civil servants enjoy a special legal status. They enjoy
special protection and can only be fired in special circumstances. Furthermore ad-
ministrative civil servants cannot strike or be subject to a lockout. Since the 1990s
the administrative civil servant form of employment has only been used in the po-
lice and in the defence forces. There are still some employees in the municipalities
who are employed as administrative civil servants, but they are a dying breed.
The municipalities are primarily financed through local taxation, which

makes up three-quarters of their income. The rest comes from State block
grants, reimbursements and user payments.36 The proportions of the different
forms of income in 2007 are illustrated in the graph below.
Local Government finance - 2007
5% Income tax
7%
8% User payments and fees
10%
Land and property tax
70%
Reimbursement and grants
Others
Source: T
he Danish Local Government System - Produced by Local Government Denmark (LGDK),
February 2009.
36
gioner/Aftalesystemet/Kommunernes%20finansiering.aspx
147
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The public sector finances are highly decentralised in Denmark, compro-

mising the Government’s macroeconomic management. To try to remedy this
problem, every spring the Government enters into a financial agreement with
the municipalities represented by LGDK and the regional councils. The agree-
ment typically covers the scope of social benefits, construction costs, other fi-
nancial issues and the scope of local taxation. In the last couple of years the
agreements have also included recommendations on political and financial pri-
orities. The agreement is general for all municipalities and regions, which
means that individual municipalities can take local conditions into account, for
example when determining the level of social services and the tax rate within
the scope of the agreement. The individual municipalities are not legally bound
by the agreement, but the Government can sanction breaches of it by cutting the
block grant.37
Each municipal council determines the rate of the local tax in its municipal-
ity. Statutory authorisation is required for the imposition of taxes in Denmark;
see the Constitution, Article 43. Such authority is given to municipal councils
in the Municipal Income Tax Act, Section 6. This authority is de facto limited
by the financial agreement between LGDK and the Ministry of Finance. The
local tax level is fixed according to the agreement, and if the aggregate tax ex-
ceeds the agreed tax level it is matched by an equivalent cut in the block grant.
The Minister of Interior and Health has statutory authority to cut the block grant
either collectively or individually or by a combination of both. The law only
applies if the aggregate local tax level of all the municipalities is raised; this
means that if one municipality lowers its tax level another municipality can
make an equivalent increase of its tax level. The law does not restrict the mu-
nicipalities’ right to determine the tax level, but the Minister’s authority is a de
facto restraint on the municipalities’ rights to set the tax level. The law contains
a «carry-over» option so that a municipality that lowers taxes one year can raise
it equivalently later, without risking a cut in its individual block grant.38 Each
municipality receives a block grant calculated on the basis of financial agree-
ment and the assessed population figures. In addition to the regular block grant,
municipalities with structural deficits receive a national settlement grant, and
some disadvantaged municipalities also receive a special grant.
To understand the reasoning behind this system it is necessary to know that
there are huge differences between the municipalities with regard to their popu-
lation density, demographic and social composition. As a result of these differ-
ences the tax bases differ widely across the country so that nationally there is
no consistency between the level of welfare services provided by the munici-
palities and the local tax rate. To counteract this, in 2007 the Government
37
gioner/Aftalesystemet.aspx
38
Act on the reduction of the block grant to municipalities in the event of raised tax levels
(Law No 477 of 17 June 2008).
148
adopted a block grant settlement reform.39 The settlement system makes up for
the municipalities’ structural surpluses or deficits by looking at the difference
between the calculated necessary expenditure and the expected tax revenue cal-
culated on the basis of an average tax rate. If a municipality has a structural
deficit it will receive a special block grant of 58% of the deficit. Conversely, a
municipality that has a structural surplus must pay 58% of the surplus to the
settlement fund. Most of the settlement fund is financed by the State as the
structural deficits greatly exceed the structural surpluses.40
The municipalities are distinct legal persons and as such they are entitled to
own property and can enter into contracts like any other legal person. Com-
bined with the fact that a municipality has its own funds and that councils can
make financial dispositions, this has resulted in municipalities accumulating a
lot of real estate and movable property. It is common for municipalities to own
the town hall, nursing homes, nurseries, sports facilities, parks, roads, buses,
snow clearing equipment, utilities facilities, wastewater treatment plants etc.
As a rule, a council can deal with its property as it sees fit. However, this rule
is not without limits, as illustrated by the following examples. The local author-
ity mandate states that the municipalities must be financially responsible, which
means that they cannot sell or lease property below the market rate unless the
municipal interest is served by doing so. Municipalities are also restrained by
the non-statutory principles of public administration and by public administra-
tion laws, so that for instance a council cannot favour companies in which
members of the council hold shares.
In certain cases the legislators have found it necessary to regulate the mu-
nicipalities’ use of property. This concerns the sale of property, sale and lease-
back arrangements, municipal roads and property used for advertising. Thus, a
municipality can only sell real estate following a tendering procedure, which
ensures that there can be no favouring of improper interests and that the mu-
nicipality benefits from the sale.41 A municipality can only enter into a sale and
leaseback arrangement if it deposits an amount equal to value of the property
sold. After 10 years, a fifth of the amount deposited can be released each year.42
The rules on the municipalities’ involvement in sale and leaseback arrange-
ments are a result of a massive scandal in the municipality of Farum. The mu-
nicipality of Farum had entered into sale and leaseback arrangements involv-
39
gioner/Aftalesystemet.aspx
40
The Ministry of Interior and Health: Kommunal udligning og generelle tilskud 2008.
41
Section 2 of Executive Order No 472 of 20 June 1991, on tendering.
42
Section 6 of Executive Order No 1311 of 15 December 2009, on municipal borrowing and
guarantees.
149
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ing, among other things, wastewater treatment plants, thereby gaining a massive
amount of cash which was then used on other projects. As a result Farum ended
up with an enormous debt. The effects of these rules are that sale and leaseback
arrangements have become an expensive and unattractive alternative to tradi-
tional procurement projects. In sale and leaseback arrangements the municipal-
ity must pay all the expenses at once, whereas in a traditional procurement
project payment follows the construction process, so that expenses can be
spread over several years.43
The municipalities own and are responsible for maintaining the municipal
roads which constitute 95% of all roads, with the remaining 5% of the road
network being State roads. These proportions give the impression that the mu-
nicipalities bear the major part of the maintenance burden, but this is mislead-
ing as the State roads connect the country and carry 45% of all road traffic.
The local council decides which municipal roads to construct and which to
close down.44 The council decides whether a closed road is to be kept as a pri-
vate access road for a single property, a common private road for multiple prop-
erties, or whether it should no longer be used for traffic.45 The most important
effect of changing the status of a municipal road to a private road is that its
maintenance then becomes the responsibility of the private owners and no long-
er that of the municipality.
The council can use its real estate and movable property for advertising, or
it can sell the space to others, for example the facade of a town hall or the sides
of bus can be used as billboards.46 When selling space for advertising, a council
must respect the rules of marketing law and other laws. Furthermore the Act on
the use by municipal and regional authorities of real and movable property for
advertising for others only applies to real estate and movables, so that elec-
tronic media such as a municipality’s website is not covered by the law and thus
space on a municipal website cannot be sold for advertising.
The municipalities are independent of the Government. All supervision and

control of them must be authorised by law, and the supervisory authorities must
be a part of the State hierarchy; see the Constitution, Article 82: «Municipali-
ties’ right to manage their affairs autonomously under the supervision of the
State is regulated by an Act.» The Local Government Act contains rules on
43
Petersen, Ole Helby, «Regulation of public-private partnerships: the Danish case», in Pub-
lic Money & Management, May 2010.
44
The Public Highways Act, Section 23(1) (Law No 711 of 11 September 1997).
45
The Public Highways Act, Section 90(1) (Law No 711 of 11 September 1997).
46
Act on the use by municipal and regional authorities of real and movable property for ad-
vertising for others (Law No 490 of 7 June 2006).
150
general supervision. The legislators have established special supervision au-

thorities in special areas; these carry out control and supervision within a spe-
cific area. Furthermore the municipalities and the regions are subject to control
by the Parliamentary Ombudsman.47
The following will primarily deal with general supervision, since it is not ap-
propriate to give an account of every special supervisory authority. General su-
pervision is carried out by five Regional State Administrations that are geograph-
ically identical with the regions. The Ministry of Interior and Health is the ultimate
supervisory authority, in conjunction with the Regional State Administrations.
There are three main questions regarding supervision: what conditions must
be met before a supervisory authority can act, what is subject to control, and
what measures/sanctions can be used against the municipalities?
The Regional State Administrations have authority to act when they assess
that it is necessary to do so. The Regional State Administrations are not appeals
tribunals, which means that they are not obliged to act on complaints and that
they can act even if there has been no complaint.48 The Regional State Adminis-
trations monitor that the municipalities and the inter-municipal cooperation bod-
ies comply with the law.49 This is solely legal control, so that there are a number
of cases that the Regional State administrations do not have authority to deal
with. Textbook examples of cases not covered by legal control concern com-
plaints about municipal personnel, cases concerning good administrative prac-
tice, questions of whether a decision is reasonable or fair, cases that are subject to
special supervision, and private law arrangements such as contracts, civil liability
etc. These cases can be heard by the Parliamentary Ombudsman or the courts.
The supervisory authorities examine the legal issues, the relevant facts and,
if necessary, professional assessments. The term «legal issues» covers both
written and unwritten law, but it does not cover the exercise of discretion if it is
exercised within the scope of the law. Regional State administrations can use
several measures to control the municipalities. Normally a Regional State Ad-
ministration will start by using the mildest possible measure, which is a state-
ment of the municipality’s acts or omissions.50 The statement can only relate to
legal issues covered by the Regional State Administration’s authority; see the
Local Government Act, Section 48. A statement has no legal force, but the mu-
nicipalities will often comply with it because a statement can be followed up by
sanctions. If a statement is not sufficient to make a municipality comply with
the law, the Regional State Administration can initiate various sanctions. The
Regional State Administration can annul an illegal decision made by a munici-
pal council, but it has no authority to make a new decision on behalf of the
47
The Ombudsman Act, Section 7 (Law No 473 of 12 June 1996).
48
The Local Government Act, Section 48a.
49
50
151
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council. The Regional State Administration can annul a decision on its own
initiative and does not need approval from the Minister or the courts. Given the
principle of local self-government, such annulment requires that the decision is
clearly illegal; this means that there cannot be reasonable doubt about whether
the decision is illegal (the clarity criterion).
When considering the annulment of a decision, the Regional State Adminis-
tration can temporarily suspend the decision. If a decision has already been
implemented, it can only be suspended or annulled if a party makes a written
application to the Regional State Administration and there is no another statu-
tory appeal tribunal and if there are no substantial reasons for not doing so.51
For example, if a private party has received a favourable decision, it cannot be
annulled or suspended unless that party has acted in bad faith. According to the
pre-legislative history of the rule, a council is not a party to the annulment or
suspension case. This means that the municipality does not have capacity to
bring a case on annulment or suspension before a court.
In certain cases a municipality can be obliged by the law to act, and the ques-
tion is how the Regional State Administration sanctions a failure to act. It is
meaningless to annul a failure to act, because this will not result in the correct
legal decision being taken. In these cases the Regional State Administration is
authorised to compel the council to make a decision. This is enforced by impos-
ing fines on each member of the council responsible for the illegal failure to act.52
The clarity criterion mentioned above also applies in these cases. A member of
the council cannot avoid being fined by not voting. Council members will con-
tinue to be fined until they fulfil their duty to vote for a legal decision. Each re-
sponsible member is a party to the Regional State Administration’s proceedings.
The Regional State Administrations can bring proceedings against a mem-
ber of a council who is liable for damages resulting from illegal acts or omis-
sions.53 The clarity criterion does not apply, because the proceedings will make
it clear whether a council member is liable. Liability is decided according to the
normal civil law rules, i.e. there has to be negligent conduct resulting in finan-
cial loss. Before the Regional State Administration decides to bring proceed-
ings against a council member, it must assess whether that member is liable
under the normal rules of civil liability. Finally, the Regional State Administra-
tion can bring declaratory proceedings in the event of an illegal act or omission
by a council. This power is derived from a Regional State Administration’s
automatic legal interest, which means that it has a right to bring proceedings.
The courts do not examine whether sanctions should have been applied. The
clarity criterion does not apply, since the will emerge from the proceedings.54
51
The Local Government Act, Section 50a.
52
The Local Government Act, Section 50b.
53
The Local Government Act, Section 50c.
54
152
There have been very few court cases regarding the municipalities’ exercise
of their powers. This is a result of the extensive supervision and the wide avail-
ability of recourse to supervisory authorities in special areas. It is also a result
of an administrative tradition whereby authorities generally comply with state-
ments from supervision authorities and the Parliamentary Ombudsman.
The decisions of the Regional State Administrations and municipal councils
can be subject to judicial review, provided a party has a right to bring proceed-
ings. In Denmark a right of action requires a party to have a legal interest in the
proceedings, for example citizens, companies or other authorities.55 For in-
stance, a private party that has received a favourable decision from a municipal-
ity can refer a decision by the Regional State Administration to annul the deci-
sion to a court. The courts can decide on any matter relating to exercise of the
powers of public authorities, including municipalities.56 The courts can exam-
ine both written and unwritten law, and the exercise of discretion. This is simi-
lar to the basis for decisions by the Regional State Administrations. In legal
theory there is a core of discretion which is not subject to the jurisdiction of the
courts unless otherwise provided by law. This core of discretion falls within the
scope of the weighing of reasonable considerations.
The differences between the courts and regional supervision lie in the pro-
cedure and the use of sanctions. The courts use the adversarial procedure of
civil litigation, whereas the Regional State Administrations use an inquisitorial
procedure. An illegal act or omission must be clear before the Regional State
Administration applies sanctions, whereas the courts can apply sanctions where
an illegal act or omission is considered proved.
Local self-government is protected by Article 82 of the Constitution, and the

extent of this protection is described in section 3. The Constitution, combined
with the European Charter of Local Self-Government, is the only protection of
local self-government against the legislature. The municipalities have no spe-
cial right of appeal to the Supreme Court or any other court, but must fulfil the
normal requirements for having a right of action. Denmark has no special con-
stitutional or administrative court, and all cases regarding the Constitution and
the public administration are tried in the regular court system.
The Constitution protects municipalities against the legislative power but, as
described in section 3, the degree of local self-government required to meet the
constitutional requirement is not high. If the legislature were to adopt legislation
55
But not first tier authorities in cases decided by a second tier authority, e.g. the munici-
palities are not parties in cases adjudicated by the Regional State Administration.
56
The Constitution, Article 63(1).
153
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repealing local self-government, parties with a legal interest would be able to

bring proceedings against the legislature. In such a case the municipalities would
have a right of action. The court would then have to decide whether the legisla-
tion is constitutional. Only once in the history of the Constitution has the Su-
preme Court deemed a law unconstitutional. The Supreme Court’s timidity
means that local self-government is only protected by the courts in extreme cas-
es, for example if the legislature were to abolish local self-government. The
European Charter of Local Self-Government has merely been ratified by Den-
mark and as such it cannot be invoked in court proceedings. As a rule the courts
will construe legislation in conformity with Denmark’s international obliga-
tions, which means that the courts assume that, if it had been aware of a breach
of the charter, the legislature would have made a different rule. The rule of inter-
pretation in conformity with international obligations does not apply if it is clear
that the legislature intended otherwise, so the European Charter of Local Self-
Government offers no protection if the legislature breaches it intentionally.
As a minimum, the existence of the municipalities is protected by the Con-
stitution. Another question is whether the municipalities’ property is protected
against expropriation. The Constitution protects private property in its Article
73, which states: «Ownership is inviolable. Nobody can be ordered to relin-
quish his or her property except where the common good so demands. This may
only take place in pursuance of an Act and in return for full compensation.»
Does this rule apply to municipalities? This question has been discussed in le-
gal theory and the conclusion is that it is uncertain whether this rule applies to
municipalities. According to the theory of interpretation of constitutional law,
if an interpretation is uncertain one must be cautious. As a result, the munici-
palities probably cannot seek protection against expropriation from the Consti-
tution.57 While this result is theoretically correct, in practice the law and admin-
istrative practice rank municipalities alongside private property owners, which
means that they are given full compensation in the event of expropriation.
If one looks only at the Constitution, local self-government appears to be
poorly protected in Denmark. However, a long tradition of extensive decen-
tralisation and strong local democracy, combined with protection in interna-
tional law, means that in reality it is quite difficult to restrict local self-govern-
ment.
Denmark has nine full members of the European Union’s Committee of the
Regions; six of these are politicians from the municipalities and three are politi-
cians from the regions. In addition there are nine alternate members, again six
57
Jensen, Michael Hansen: Beskyttelse af juridiske personer efter grundlovens § 73, p. 339 ff.
154
from municipalities and three from the regions. Local Government Denmark
has six permanent committees ranked below its executive committee; one of
these is the International Committee. This committee has nine members who
are each full or alternate members of the Committee of the Regions. The Inter-
national Committee represents the municipalities’ interests in the EU in the
Committee of the Regions, and it also participates in other international forums
such as the Congress of Local and Regional Authorities of Europe and the
Council of European Municipalities and Regions.
The decisions of the Ministry of Interior and Health, the Regional State Ad-
ministrations and the Parliamentary Ombudsman, and the municipal laws are
the most important sources of law on the municipalities. Supreme Court cases
have been scattered and few in number.
U 2008.1607 H (Supreme Court): in which a former mayor was convicted of
breach of trust of a particularly aggravated nature.
U 2007.1074 H (Supreme Court): where a municipality had a right of action
against the Nature and Environment Board of Appeals regarding a decision
on an exemption from the local plan.
U 1990.601 H (Supreme Court): the Ministry of Interior’s annulment of the
City Council’s decision on layoffs was void.
U 1993.727 Ø (High Court): the municipality was bound by the principle of
equality and it could not, without justification, deny free school milk to pri-
vate schools while providing free school milk to council schools.
Revsbech, Karsten: Kommunernes Opgaver, 2nd ed. 2010.

Garde, Jens et al.: Forvaltningsret – Almindelige emner, 5th ed. 2009.
Gammelgaard, Frederik: Kommunal Erhvervsvirksomhed, 1st ed. 2004.
Thomson, Hans B. et al.: Lov om kommuners styrelse, 2nd ed. 2010.
Blom Hansen, Jens: Den fjerde statsmagt? Kommunernes Landsforening i
dansk politik, 1st ed. 2002.
Revsbech, Karsten: Chapter 7 in Børge Dahl, Torben Melchior and Ditlev
Tamm (eds): Danish Law in a European Perspective, 2nd ed. 2002.
155
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Local Government Denmark (LGDK): The Danish Local Government Sys-

tem, February 2009.
Jensen, Michael Hansen: Beskyttelse af juridiske personer efter grundlovens §
73, 1st ed. 2006.
The Ministry of Finance: http://uk.fm.dk/

The Ministry of Interior and Health: http://www.im.dk/English.aspx
The Prime Minister’s Office: http://www.stm.dk/_a_1644.html
Local Government Denmark: www.kl.dk/English/
The Regions: http://www.regioner.dk/In+English.aspx
The Regional State Administration: http://www.statsforvaltning.dk/site.aspx?p=5466
Copenhagen City Council: http://www.kk.dk/english.aspx
Danish law translated into English: http://www.juraportal.dk/links/010/010/
040/020/?lang=en
The Danish Parliament: http://www.ft.dk/English.aspx
The Danish Courts: http://www.domstol.dk/om/otherlanguages/english/Pages/
default.aspx
156
Chapter 7:
LOCAL GOVERNMENT IN ESTONIA
Sulev MÄELTSEMEES
Estonia was proclaimed a Republic on February 24, 1918. Until that time,
the country had been a part of the Russian Tsarist Empire for over 200 years.
Rural municipalities (vald) became institutions of local self-governance in
1816, in the province of Estonia (kubermang) and in 1819, in the province of
Livonian. These municipalities were originally established as manorial estates,
but became more independent in 1866 with the enactment of the Rural Com-
munity Government Act. Local councils, executive boards, and mayors were
elected, marking the start of what we consider local self-government based on
modern principles. Several cities (linn) maintained a tradition of self-govern-
ance dating from the Middle Ages (Town Law of Lübeck). In 1877, the Rights
of Lübeck were invalidated in the territory which is now Estonia, and in 1870,
the Russian Cities Act was enacted.
Following the Decree of the Russian Provisional Government of 5 July 1917
«On administration and temporary organisation of Self-government in the
province of Estonia», Estonia became an autonomous administrative unit, the
borders of which coincided with the area inhabited by Estonians (including
North-Livonia). This legal rule recognised the right to issue local general legis-
lation (i.e. regulations), and provided Estonia and its people with an autono-
mous entity where the formal authority of the Russian state was almost nonex-
istent. One might say that Estonia achieved independence at the self-government
level earlier than at the state level.
The drafting and adoption of Estonia’s own legislation regulating local self-
government to replace the formerly valid legislation of the Russian Empire had
been pending since Estonia declared its independence. Chapter VII of the 1920
Constitution regulated local self-government. In later years, only minor amend-
ments were introduced to Estonian legislation, including the adoption of new
local election acts. The most drastic change took place in 1933 when a consti-
157
sulev mäeltsemees
tutional amendment was adopted that abolished the second level local self-gov-
ernment. In 1937, the Rural Municipality Act was adopted, followed by the
City Act in 1938. A new Constitution was adopted in 1938 that established lo-
cal self-government at the second (county – maakond) level, although, it actu-
ally consisted of authorized representatives from the first level.
In 1940, local self-government was basically abolished under Soviet occupa-
tion. After half a century of centralised management under the Soviet regime,
local self-government revived in 1989. On 8 August 1989, the Estonian Supreme
Soviet adopted regulation to initiate administrative reform, which was followed
by the Local Self-Government Foundation Act on 10 November of the same
year.1 Exactly one month later, on 10 December 1989, the first free local self-
government council elections in almost 50 years took place. Autonomous deci-
sion-making and self-government at the local level had been impossible during
the preceding 50 years, so this was the first issue to be addressed. Specific strate-
gic approaches for administrative reform were devised. Re-introduction of local
self-government was rapid and successful, despite the gap of two generations.
A significant event in terms of the development of local self-government
was the reestablishment of the Association of Estonian Cities (originally estab-
lished in 1920) and the Association of Rural Municipalities (originally estab-
lished in 1921), in 1990. The former had already been a member of the Interna-
tional Union of Local Authorities (IULA) during 1925-1940 and renewed its
membership in 1995. The Constitutional Assembly (1991-1992) set up a work-
ing group to draft the chapter regulating local self-government. The provisions
of the Estonian Constitution conformed to the principles of the European Char-
ter of Local Self-Government (ECLSG), which was ratified by the Parliament
(Riigikogu) only two years later, on 28 September 1994.
Today, it is clear that the administrative-territorial organisation of Estonia
needs reforms. The average population of Estonian rural municipalities is less
than 2,500 people and, despite mergers, there are still instances where a centrally
located settlement is detached, administratively speaking, from its outlying areas.
The underlying problem involves inadequate cooperation between local self-gov-
ernment units in the field of public services, especially in the metropolitan area.
A two-level system of local government existed in Estonia from 1989-1993.

Rural municipalities (vald) and cities (linn) constituted the first level, and 15
1
At the same time, the Berlin Wall was demolished, illustrating the synchronism with the
democratisation process that began in Europe. The above Act was the first to emerge from the
immensely popular IME concept (IME – Isemajandav Eesti – an acronym for self-sufficient Es-
tonia; also it is a play on words: «ime» standing for «miracle» or «wonder» in Estonian).
158
local government in estonia
counties (maakond) and 6 big cities (republican cities, vabariikliku alluvusega

linn: Tallinn, Tartu, Kohtla-Järve, Narva, Pärnu and Sillamäe), formed the sec-
ond level. The Local Government Foundation Act (1989) stipulated a single
level, local government system. The approaches to administrative reform, i.e.
local government reform, provided that first-level administrative units would
be granted self-governing status only if they were capable of fulfilling the most
significant tasks of local government.
A new, one-level system of local government, still existing today, was intro-
duced in 1994 after years of reform and restructuring of the legal and financial
foundation for local government. County administration (maavalitsus) became
part of central government and the county governor (maavanem) became a rep-
resentative of the central government. The Government of the Republic ap-
points the county governor to the office for a term of five years.
Following the local councils elections in 2009, there are now 226 local gov-
ernment units in Estonia – 193 rural municipalities and 33 cities (Table 1). Cit-
ies and rural municipalities may be divided into city district (linnaosa) or a ru-
ral municipality district (osavald) with limited rights to self-governance. The
competencies of a city or rural municipality district are stated in the statute of
the city or rural municipality.
Table 1
Number of rural municipalities and cities by population size categories (1/1/2011)
Population size Number of cities/rural

% Population %
categories municipalities
Below 1,000 1/39 17.70 29,910 2.19
1,001- 2,000 4/76 35.42 116,112 8.50
2,001-5,000 8/55 27.87 204,239 14.95
5,001-10,000 7/18 11.06 169,303 12.40
10,001-20,000 8/5 5.75 187,280 13.72
20,001-50,000 2/- 0.88 83,518 6.12
50,001-100,00 2/- 0.88 163,198 11.95
Above 100,001 1/- 0.44 411,903 30.17
TOTAL 33*/193 100.00 1,365,463 100.00
* There are, however, 47 cities altogether, since 14 cities are not local self-government units with a local
council and a mayor, but simply urban settlements within a rural municipality.
The size of local authorities varies greatly. The average population of 4/5 of
local entities is less than 2,500 while only a quarter of the total population of the
country resides there. The small size of Estonian local authorities and how this
effects their administrative capacity, is one of the hottest problems of local
159
sulev mäeltsemees
government in Estonia. Only 18 cities or rural municipalities (8% of the total

figure) have a population of more than 10,000 people and approximately 2/3 of
the total population of the country lives in those places. The biggest unit is the
capital city, Tallinn, where 30% of the country’s population lives. This figure
is one of the highest percentages in Europe (after Iceland and Latvia).
Administrative-territorial reform has been an issue since the country re-
gained its independence, but there has been little headway made. In 1995, there
were 254 local government units in Estonia, 28 more than in 2011. On 22 Feb-
ruary 1995, the Riigikogu adopted the Territory of Estonia Administrative Divi-
sion Act. According to this statute, local councils or the Government of the
Republic may initiate changes in the administrative division of the territory of
Estonia. At the end of June 2004, the Parliament passed the Promotion of Merg-
er of Local Self-Governments Act to establish the principles and conditions to
promote mergers including, the requirements to deliver public services, guide-
lines for making appropriations for the State Budget in order to cover costs re-
lated to the merger, and the principles of compensation to reduce appropria-
tions from the State Budget.
Implementation of the administrative-territorial reform has thus far failed,
mainly because the reform has been an issue in itself. There has been a lot of
talk about the need to determine the responsibilities of local authorities and to
formulate the principles for financing them, but this has not been done. The
administrative-territorial reform would allegedly help lower the number of lo-
cal officials, but in Estonia, there are only about 5,300 local officials who
work mostly in big cities. It is an illusion that the administrative-territorial
reform would enable a higher number of local bodies to cope on their own.
From the perspective of the municipal revenue base, only the cities or rural
municipalities surrounding the capital and a few rural municipalities in the oil
shale mining area in northeast Estonia manage without subsidies from the
State Budget (see item 7). This is not to say that there is no need for territorial
reform.2
Significant guarantees to local self-government are provided by the Consti-

tution of the Republic of Estonia, adopted by referendum on 28 June 1992.
2
There is another problem concerning medium-sized cities (population 20,000-100,000).
On the one hand, the physical and social environment in those cities is more favourable than in
big cities in terms of natural environment; on the other hand, their physical and social environ-
ment is more favourable than in rural municipalities in terms of public services. At the same time,
only 18% of Estonia’s population lives in medium-sized cities in comparison to Finland with34%
and Sweden with 50%. Figuratively speaking, in an economic sense, there is often no middle
class in transformation societies, and this is also reflected in places of residence.
160
Local self-government is mentioned in 26 articles of the Constitution; yet, arti-

cle 14 and chapter XIV articles 154 – 160 specifically regulate the institution:
«Article 14. Guaranteeing rights and liberties shall be the responsibility
of the legislative, executive, and judicial powers, as well as of local self-
government.
Article 154. All local issues are resolved and regulated by local authori-
ties, which operate independently in accordance with the law. Responsibili-
ties may be assigned to local authorities only in accordance with the law or
with their consent. Expenditures related to the responsibilities assigned to
local authorities by law are financed from the State Budget.
Article 155. Rural municipalities and cities are the units of local self-
government. Other units of local self-government may be formed in accord-
ance with the principles and procedures established by law.
Article 156. The representative body of local authorities is the council,
which is elected in free elections for a term of four years.3 The period of
authority of a council may be shortened by an Act due to a merger or divi-
sion of local governments or the inability of the council to act. The elections
are general, uniform and direct; voting is secret. All residents who are eight-
een years old and who reside permanently on the territory of that local au-
thority, have the right to vote in the municipal elections, in accordance with
conditions stipulated by law.
Article 157. Local authorities have independent budgets; the principles
of municipal budget formation and corresponding procedures are estab-
lished by law. Local authorities have the right, in accordance with the law,
to impose and collect taxes and to impose fees.
Article 158. The borders of local authorities may not be changed without
taking into consideration the opinion of the respective local authorities.
Article 159. Local authorities have the right to establish unions and joint
institutions together with other local authorities.
Article 160. The organisation of local authorities and the supervision of
their activities are established by law.»
Chapter XIV of the Constitution establishes the principles of the repre-
sentative democracy of local authorities (§ 156), the basis for relationships
between the state and local bodies (§§ 154, 157, 158 and 160) and the bases
of relationships between local self-government units (§ 159). Sections 154
and 157 to 160 of the Constitution along with the ECLSG grant various rights
to local authorities (i.e. constitutional guarantees). The obligated subject of
these rights is the State, and this means, first of all, the legislature and the
executive. Consequently, both the legislative and executive branches are
bound by those legal rules.
3
In February 2003, the Riigikogu adopted the first amendment to the Constitution since its
adoption (1992), and, as of 2005, prolonged the term of office in local self-government councils
from three years to four years.
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sulev mäeltsemees
Chapter XIV of the Constitution regulates local self-government, and is in

accordance with the principles established in the ECLSG. The Charter was
ratified, with no declarations or reservations, by the Riigikogu on 28 September
1994, only two years after the text of the Charter had been available to the Con-
stitutional Assembly.
The Charter is directly applicable in Estonia, as witnessed by the decisions
of the Estonian Supreme Court which refer to certain provisions of the Charter
and identify them with some of the principles of the Estonian constitution. For
example, the Ruling of the Supreme Court of Estonia 3-4-1-8-09, of 16 March
2010 states: «The Court explains … that upon opening the essence and scope of
the financial guarantees arising from the Constitution, it is important to take
into account the European Charter of Local Self-Government ratified by the
Riigikogu. According to § 2 of the ECLSG Ratification Act, the Republic of
Estonia undertakes to follow any and all articles of the Charter in the territory
subjected to its jurisdiction. The Charter sets out the minimum requirements
that the state must keep in mind upon organisation of local self-government,
incl. upon funding rural municipalities and cities. The Court finds that the
Charter plays an important role in interpreting the provisions of the Constitu-
tion concerning the organisation of local self-government…»
According to the Constitution, local self-government in Estonia has slightly
limited legal autonomy. In order to understand the essence and importance of
local self-government in Estonian society, it is necessary to mention Article 79
of the Constitution. This article prescribes that if the President of the Republic
is not elected by the Riigikogu even in the third round of voting, the President
will convene an electoral body. The electoral body is comprised of members of
the Riigikogu and representatives of local councils.4
One of the constitutional guarantees of local self-government results from
Article 65 establishing that the Riigikogu manages the affairs of the state over
which the President of the Republic, the Government of the Republic, and oth-
er national authorities or local governments hold no power of decision.
According to the Local Self-Government Organisation Act (adopted June 2,
1993, and changed 66 times as of 2011) local government is based on the fol-
lowing principles:
(1) the independent and final resolution of local issues, and organisation;
4
Each local council elects at least one representative of the electoral body. The number of
members of the electoral body representing big towns or big rural municipalities is even higher
(e.g Tallinn has 10 representatives, Tartu has 4 representatives; Viimsi rural municipality 2 rep-
resentatives etc). Therefore, the number of local politicians in the electoral body is 2.5 times
greater than the Riigikogu. Due to mergers, the number of representatives of local self-govern-
ment units in the electoral body has decreased. It is not insignificant that in 1996, 2001 and 2006,
the President of the Republic was elected by the electoral body indicating that Estonian local
politicians have a significant role in deciding such an important public issue.
162
(2) mandatory guarantee of everyone’s lawful rights and freedoms in the

rural municipality or city;
(3) observance of law in the performance of functions and duties;
(4) the right of residents of a rural municipality or city to participate in the
exercise of local self-government;
(5) responsibility for the performance of functions;
(6) transparency of activities; and
(7) provision of public services under the most favorable terms.
One of the principles of local self-government is the right of the citizens
of a rural municipality or city to participate in the performance of local self-
governance. According to the Local Self-Government Organisation Act, at
least one percent of the citizens of a rural municipality or city with the right
to vote (but no less than five such people) have the right to initiate the adop-
tion, amendment or revocation of municipal legislation.5 The rural municipal-
ity or city council has the right to organise opinion polls6 concerning essential
issues among the citizens of the territory of the local self-government unit.
An opinion poll is mandatory if local self-government must redefine its
boundaries, but the results of the poll are used only for advisory purposes and
are not binding.
The most important pieces of legislation governing the structure and func-
tioning of local government7 are:
1. The Local Government Organisation Act (adopted June 2, 1993). The
Act determines the functions, responsibilities and organisation of rural
municipalities and cities and the relations of local authorities with one
another and with central governmental institutions. The Act also pro-
vides the basis for the participation of local self-government in economic
activities, the procedure to establish municipal districts, the general
structure of the local council, etc.
5
This rarely occurs, e. g. in the late 1990s, it happened twice in Tallinn and at least 3,000
signatures were required to endorse the effort. One initiative concerned the possible construction
of a road in a district of Tallinn and the other, the privatisation of the town’s central market. In
the first case, the City Council accepted the reasons given in the initiative, but they were ignored.
6
For example, in Tallinn alone, five opinion polls had been conducted by 2011: 1) the poll
concerning construction Harju Street (in the Old Town), destroyed in World War II (in June
2002); 2) restrictions on the sale of alcoholic beverages at night (in April 2004); 3) the location
of the liberty monument (in January 2005); 4) construction of municipal (social) housing for
young families (in October 2005); and (5) administrative reform in Tallinn and neighbouring
Harju county (in February 2009). This last poll dealt with two questions: (a) should Tallinn city
districts be reorganized?; and (b) should Tallinn start negotiations with neighbouring cities and
rural municipalities to incorporate them in Tallinn’s biggest service and other functions holding
centre?
7
Accessible on: www.legaltext.ee
163
sulev mäeltsemees
2. The Territory of Estonia Administrative Division Act (adopted February

22, 1995) provides the administrative division of the territory of Estonia,
the alteration of administrative-territorial organisation, and the bases and
procedure for the alteration of boundaries and changes in the names of
administrative units.
3. The Rural Municipality and City Budgets Act (adopted June 16, 1993)
sets forth the procedure to prepare, pass and implement rural municipal-
ity and city budgets.
4. The Local Government Council Election Act (adopted March 27, 2002).
This Act regulates the formation of electoral districts and polling divi-
sions, registration of voters, nomination and registration of candidates,
etc. Pursuant to the law, local authorities receive funds from the state
budget to carry out local elections.
5. The Local authorities Associations Act (adopted Nov 6, 2002) provides
the specifications for the foundation and activities of regional associa-
tions of local governments and national associations of local govern-
ments as compared to the Non-profit Associations Act.
All local authorities (cities -linn - and rural municipalities –vald- have equal
legal status, with two exceptions: (a) Local elections in Tallinn are held by city
districts (as of 1993, Tallinn consists of 8 districts). According to the Local
Government Council Election Act, half of the mandates (40 mandates since
2009) are equally divided (5 mandates each) between districts, irrespective of
population, and the other half (39 mandates), is divided according to popula-
tion, (b) Since 2003, a mandatory meeting of residents is held on small islands
at least once a year.
As for the status of the capital city, Tallinn has lobbied for years to pass the
so-called «Capital Act» to form a special relationship between local self-gov-
ernment and state authorities. One of the hotly disputed issues covering the
costs of national events taking place in the capital, which are mostly paid for by
the city. Another issue is the supervision of legislation issued by the city. Since
1994, several draft laws for regulating the unique status of Tallinn have been
submitted to the Government of the Republic or to the Parliament, but none has
been successful.
According to the Constitutional Review Procedure Act (since 2002), a rural
municipality or city council may petition the Supreme Court to declare uncon-
stitutional an Act proclaimed but pending enforcement, or a regulation of the
Government of the Republic or of a minister, also pending enforcement. Like-
wise, it can petition the Supreme Court to repeal an Act that has entered into
force, a regulation of the Government of the Republic or a minister or a provi-
sion thereof, if it conflicts with constitutional guarantees of local self-govern-
ment. This Act clearly illustrates an improvement in safeguarding the rights of
rural municipalities and cities.
164

AUTHORITIES
The management of the following socio-economic issues (among others) is

within the exclusive competency of the rural municipality or the city: 1) the
establishment of the procedure for the administration of the rural municipality
or city ; 2) the passage and amendment of the rural municipality or city budgets,
the approval of annual reports and the appointment of auditors; 3) the establish-
ment, amendment and invalidation of local taxes; 4) the imposition of duties; 5)
the establishment of the procedure for granting benefits and for the provision of
services financed by the rural municipality or city budget; 6) the approval and
amendment of the rural municipality or city development plans; 8) the taking of
loans and assumption of other proprietary obligations; 9) the foundation and
dissolution of companies and foundations by the rural municipality or city, and
the approval and amendment of the articles of association of such companies
and foundations; 10) the resolution of the participation and termination of par-
ticipation of the rural municipality or city in a company, foundation or non-
profit association; 11) the approval, amendment or repeal of the rural munici-
pality or city building regulations.
According to the Constitution, functions may be placed to local government
only by law or by mutual agreement. All local issues are dealt with and resolved
by local authorities unless assigned to other persons according to law. The main
tasks of the rural municipality and the city are stated in the Local Government
Organisation Act. The functions of local government include the organisation
of social assistance and services, welfare services for the elderly, youth work,
housing and utilities, the supply of water and sewerage, the provision of public
services and amenities, waste management, physical planning, public transpor-
tation in the local area, and the maintenance of rural municipality roads and city
streets unless such functions are assigned by law to other persons.
By means of a contract signed with state agencies, local government may also
be empowered to provide state functions and services. For instance, Tallinn has
formalized such administrative contracts, primarily with Harju County Govern-
ment. In particular, it has formalized contracts to take on environmental protec-
tion; social welfare; first aid care; registration of births; and responsibilities relat-
ing to marriages and deaths, which are usually discharged by county governments
elsewhere in Estonia. Also, it has formalized similar contracts with other national
authorities (like the Rescue Board ) in areas such as fire fighting and rescue.
The functions of local authorities (either rural municipalities or cities) also
include the maintenance of different kinds of facilities: pre-school child care
facilities, basic schools, secondary schools, libraries, community centres, etc.
Apart from the above mentioned responsibilities, which are entrusted to lo-
cal authorities by the laws on local government, local bodies may also take ini-
tiatives in two groups of issues:
165
sulev mäeltsemees
(a) those that are assigned to them by pieces of sectoral legislation;

(b) those that are not assigned by law to other persons
Another important aspect to be briefly introduced in this chapter is how lo-
cal authorities organise the delivery of their services and responsibilities. Local
self-government units can choose between various management forms to run
their services:
(1) According to the Local Self-Government Organisation Act, a rural mu-
nicipality or city may found municipal bodies that are not legal entities,
and are called «municipal agencies» (hallatav asutus), to provision
services under the administration of rural municipality or city adminis-
trative agencies;
(2) According to the Commercial Code and the Local Self-Government Or-
ganisation Act, a rural municipality or a city may be a partner or share-
holder in a public limited company (aktsiaselts - AS) or a private lim-
ited company (osaühing - OÜ) of significant importance in the
development of the rural municipality or city. According to the Founda-
tions Act, local entities may also found foundations (sihtasutus - SA)
and be a member of non-profit associations;
(3) They may privatize services.
Rural municipalities and cities may decide to perform the above tasks them-
selves or to make contracts for services provided by private enterprises. Rural
municipalities and cities have established local public companies to provide
many of the services listed in the first group, e.g. housing and utilities, water,
public transport etc., and either own them or have participating interest in them.
Some companies have been let to private enterprises for long term use or even
privatised.8 Local services such as schools, libraries etc, are usually provided
by institutions under municipal agencies. A radical change was introduced in
the health sector. In this area there are a few state owned hospitals but provision
of health services is the responsibility of local authorities. Until 2001, health
care institutions were under municipal agencies, but the law was amended and
all the health care institutions had to be reorganised either into public limited
companies or foundations.9
The largest item in local authorities expenditures in Estonia is general edu-
cation. According to the Basic Schools and Upper Secondary Schools Act, the
basic schools and upper secondary schools are municipal schools. Rural mu-
8
For example, the principal heat production enterprise supplying Tallinn with heating (AS
Tallinna Soojus) was let for 49 years, 51% of the share capital of the only company providing
water supply and wastewater services in town (AS Tallinna Vesi) was sold to a British company
and all the companies providing maintenance and repair services in housing have been privatised.
9
In Tallinn, the hospitals were reorganised into two big public limited companies but in
counties (there are 15 counties in Estonia), municipalities generally opted for establishing a foun-
dation to manage the hospital in their county.
166
nicipality or city governments establish municipal schools pursuant to a deci-

sion of the rural municipality or city council, on the basis of an education li-
cence issued by the Ministry of Education and Research.
Social care is mainly a shared function. Pensions, child or family, financed
social care of the disabled and unemployment benefits are paid by the state
budget. Local authorities provide social assistance for elderly people and the
disabled, and pay benefits for the poor to provide them a minimum income. In
recent years, local self-government has extended its activities to the field of
social services, and local self-government units pay additional benefits for fam-
ilies and children.
In 2002, the Estonian Regional and Local Development Agency (Eesti Re-
gionaalse ja Kohaliku Arengu Sihtasutus) was established in co-operation with
the associations of local self-government. The agency’s goal is to act as a na-
tional grass-roots development organization, which: 1) uses the benefits from
co-operation between local self-government units; 2) supplies local self-gov-
ernment units, public and private institutions and organizations with a variety
of goods and services, required for their development activities with the overall
aim to assist regional and local development.
The Local Government Organisation Act determines the general principles

of the institutional structure and administration of Estonian local authorities.
The statute (põhimäärus) of each rural municipality or city prescribes the insti-
tutional structure and rules of procedure for the specific local self-government.
The acts provide only broad definitions, so the rules of procedure for local self-
government units vary. As of 1993, there are the two bodies of local self-gov-
ernment in each rural municipality and city: the council (volikogu) and the gov-
ernment (valitsus). Rural municipalities and cities are legal entities under public
law, and are represented by the council, the chairman of the council, the rural
municipality or city government and the rural municipality or city mayor or
representatives authorised thereby, within the limits of their competence, on the
basis of acts, the statutes of the rural municipality or city and pursuant to the
established procedure.
5.1. The council
The running council determines the number of members in the next council.
The number depends on the population of a local self-government unit (with a
minimum of 7 members) and the total number must be uneven: 1) for more than
2,000 residents, at least 13 members; 2) for more than 5,000 residents, no few-
er than 17 members; 3) for more than 10,000 residents, at least 21 members;
167
sulev mäeltsemees
4) for more than 50,000 residents, no fewer than 31 members and 5) for more
than 300,000 residents, no less than 79 members10). The law does not establish
the maximum number of members. The city councils of Tallinn (79 members)
and Tartu (49 members) have the highest number of members.
The council shall form one electoral district in the territory of a rural mu-
nicipality or city. Several electoral districts may be formed: a) in local au-
thorities with more than 50,000 residents; b) in local entities resulting from a
merger or division during the past two election cycles; c) in local authorities
where districts have been established. In Tallinn, the council forms electoral
districts by city districts based on the principle that one electoral district shall
be set up in every city district. Political parties registered as non-profit asso-
ciations and foundations no later than on the last day for nomination of candi-
dates may participate in the local elections. Estonian citizens and EU citizens,
who have the right to vote, may form an election coalition for local self-gov-
ernment council elections.11
Since 2005, the councillors can no longer be members of the Riigikogu (Par-
liament) at the same time.
Meanwhile, voter turnout in the local elections had decreased to below 50%
but rose again significantly in the 2009 elections (Table 3), possibly because of
a higher young voter turnout, attracted by new methods of voting («e-voting»).
Table 3
Voter turnout in local government council elections
Elections year 1989 1993 1996 1998 2002 2005 2009
Voter turnout 72.4 52.8 52.5 49.8 52.5 47.0 60.6
E-voting deserves a specific attention. The Riigikogu adopted the Local Gov-
ernment Councils Election Act in 2002, which established the citizens’ right to
vote electronically on the web page of the National Electoral Committee on the
days of advanced polling (in 2005 three days, in 2009 seven days). This was first
introduced in the local elections of 2005, when more than nine thousand voters
cast their ballot via Internet (this represented 1.9% of all participating voters). It
was the first time electronic voting was used country-wide, instead of testing it
10
Until the local government council elections in 2009, no fewer than 63 members.
11
In 2005, all the citizens EU Member States could, for the first time, participate in munici-
pal elections on an equal footing with Estonian citizens. Only 11 citizens of other EU member
states exercised their right to run as a candidate (the total of 14,689 people ran for municipal
councils). Two people out of the 11 candidates were elected to municipal councils (the total
number of people elected to municipal councils was 3,109).
168
in just one municipality, for example.12 In the 2009 local elections, 104,413 vot-
ers (15.8 per cent of all participating voters) used e-voting.
The Chairman (volikogu esimees) is the head of the council. The local gov-
ernment council may establish both standing and ad hoc committees (alaline/
ajutine komisjon) as determined in the statute of a rural municipality or city.
The Law prescribes only the formation of an audit committee (revisjonikomis-
jon). The chairmen of all committees and all members of the audit committee
must be elected from among the council members. The majority of the council
elects the Chairman by secret ballot. In the event of a premature termination or
a suspension of the authority of a rural municipality or a city council member,
the new council member (alternate member) shall be the first unelected candi-
date, of the same political party, who ran as a candidate in the same electoral
district as the council member to be replaced.
5.2. The executive body
The local executive board, referred to as the «government» (valitsus), con-

sists of the mayor (linnapea in cities and vallavanem in rural municipalities)
and other members who are appointed with the approval of the council. The
mayor forms the «government» according to the procedure provided for in the
rural municipality or city statute. The «government» prepares issues to be dis-
cussed at the council. The mayor also resolves and manages local issues as-
signed to him by the council or according to municipality statutes, and other
issues that arise which are outside the council’s authority. The multi-member
executive body represents the local authority in courts. Rural municipality or
city council sessions are generally open to the public as opposed to the execu-
tive body sessions, which are held in private unless otherwise indicated.
The mayor is the head of the rural municipality or city administration. Usu-
ally, the local administration consists of departments and of the mayor’s office
(kantselei). The rural municipality or city administration determines its own
organizational structure. The local staff is hired by the mayor. A key position
within the local bureaucracy is that of Secretary. The rural municipality or city
secretary (vallasekretär, linnasekretär) is the head of the office. The main task
of the secretary is to prepare materials for the government and council. The
secretary is also responsible for checking the legality of the regulations passed.
In Tallinn and other large cities, the council office is separate from the govern-
ment office. Since 1989, the members of the council are not allowed to be
members of the rural municipality or city government. Rural municipality or
city executive bodies usually have 3-7 members. In the city of Tallinn, for in-
12
Today, e-voting with binding results has been used five times in Estonia: in local elections
of October 2005, parliamentary elections of March 2007, European Parliament elections of June
2009, local elections of October 2009 and parliamentary elections of March 2011.
169
sulev mäeltsemees
stance, the executive body has 7 members, including the mayor and six deputy
mayors. At least one fourth of the members of the local council may initiate a
no-confidence motion against the chairman of the council, deputy chairman of
the council, chairman of a council committee, deputy chairman of a council
committee, a member of the audit committee, the executive body («govern-
ment») or the mayor of a rural municipality or a city. The no-confidence vote is
public and in order to adopt the decision, a majority of council members votes
is required. If an expression of no confidence finds no support in a council ses-
sion, a new motion may be posed against the same person three months later.
5.3. The local districts
To ensure the proper functioning of local self-government, the rural mu-

nicipality or city may be divided into rural municipality or city districts. A rural
municipality or city district is a unit which operates in the territory and within
the framework of a rural municipality or city, pursuant to the pertinent statutes
of and approved by the rural municipality or city council. In 2011, there are city
districts in Tallinn and Kohtla-Järve and rural municipality districts only in
Vinni. The office of each district is managed by an elder, and the elders are ap-
pointed by the rural municipality or city government, upon proposal by the
mayor once the opinion of the administrative councils of the district have been
heard. In Tallinn, there are 8 administrative councils, with a total of 135 mem-
bers, working with the district offices and district elders.
A small town or village elder may by elected by the small town (alev, ale-
vik) or village (küla) meeting. In Estonia, there are approximately 5,000 small
towns or villages and about 1,200 small town or village elders. In small towns
or villages, the elder receives a contract that describes his tasks. A rural mu-
nicipality council may adopt the statute of mayors for cities without local self-
government status (in 2011 – 14 cities, see Table 1), for a small town and vil-
lage elder. The statute sets out the procedure for the election of mayors for
cities that lack local self-government status, and small town and village elders,
and describes the requirements for candidates, the rights and obligations and
the term of office. The term of office for mayors of cities with no local self-
government status, and for small town and village elders is not restricted by the
term of office for the rural municipality council.
5.4. Local associations
According to the Local Self-Government Organisation Act, local authorities

have the right to form associations and joint institutions to express, represent
and protect common interests and to exercise joint tasks for rural municipalities
or cities. At present, there are two national associations of local self-govern-
ment units in Estonia:
170
(1) the Association of Estonian Cities (Eesti Linnade Liit - ELL) with 48

members (32 cities and 16 rural municipalities), founded in 1920, and,
(2) the Association of Rural Municipalities of Estonia (Eesti Maaomavalitsuste
Liit - EMOL), founded in 1921, with 139 members (rural municipalities).
Since there is no regional-level local self-government in Estonia, the coop-
eration of local self-government units within a county is of great importance for
rural municipalities and cities in terms of their relations with central authorities
and coordination of their own activities. The Local Government Associations
Act provides that there can be only one association in each county, because
more than half of the local self-government units of the county must be mem-
bers of the association. There are 15 counties in Estonia, and in every county
there is a regional association that unites all or most of the rural municipalities
and cities in the county.
Cooperation is carried out mainly by joint provision of public services, es-
pecially in areas such as waste management, education, transport, social care
and health care. Local self-government units also cooperate in elaborating de-
velopment plans and organizing cultural events. Joint foundations, non-profit
organisations and enterprises can be established or specialists hired to work for
a group of local self-government units. Many small rural municipalities or cit-
ies buy public services from neighbouring cities or occasionally, from rural
municipalities. This type of cooperation is usually carried out on a contractual
basis and is widely used in the area of general education.
The regional (county) associations have formed the Union of the Estonian
Associations of local self-government units (Eesti Omavalitsusliitude Ühendus
- EOÜ).
6. HUMAN RESOURCES
In Estonia, there are 141,200 employees in the public sector, nearly half of
whom (49%) work in the local government sector. Employment relations in lo-
cal authorities are regulated by the Public Service Act and by the Employment
Contracts Act. There are three categories of public servants: 1) officials; 2) sup-
port staff; 3) non-staff public servants. Local employees may work in a rural
municipality, in a city, or in a local administrative agency (ametiasutus). Genu-
ine civil servants are those working in any of this places: (1) the office of a rural
municipality or city; (2) rural municipality or city governments (as agencies)
together with their structural units; (3) the governments of a district of a of rural
municipality and of a district of a city (as agencies); (4) city government execu-
tive agencies; (5) bureaus of local self-government unit associations.
An administrative agency is a body which is financed from a rural munici-
pality or city budget and exercises public authority. For instance: the pre-school
child care institutions, basic schools, secondary schools, hobby schools, librar-
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ies, museums, sports facilities, care homes etc.). The employees in the munici-
pal agencies are governed by the Employment Contract Act.
There are 28,632 public employees in Estonia (data from 31.12.2009) in-
cluding 23,307 central government officials and 5,325 local self-government
officials (1,451 men and 3,874 women). The largest local bureaucracies in Es-
tonia are in Tallinn (1,424 officials as of 31 December 2009), Tartu (289 offi-
cials) and Narva (195 officials). At the other extreme of the scale, many small
rural municipalities or cities employ only 3-5 municipal officials, the smallest
in Piirissaare rural municipality (3 officials).
Significant changes have been introduced in the salary system of local offi-
cials. According to the Public Service Act which became effective on 1 Janu-
ary 1996, approval of the salary levels of members of local executive boards
falls within the exclusive competency of the rural municipality and city coun-
cil. This has resulted in vast differences in officials’ average salaries among
local self-governments. The leading question is whether the area should be
left to the mercy of competition, and if so, to what extent?. The fact is that the
poorest municipalities are facing increasing problems for attracting compe-
tent officials.
The state has imposed special requirements regarding professional qualifi-
cations for one key civil servant – the rural municipality or city secretary. This
key official participates in the meetings of the rural municipality or city execu-
tive board with the right to express opinions, and countersigns the local govern-
ment regulations and ordinances. The rural municipality or city secretary is
appointed and removed from office by the mayor. The person to be appointed
to this position must be an Estonian citizen who is at least 21 years old and is
qualified as a lawyer or has a certificate testifying that he/she meets the require-
ments of the professional qualifications established by the Government. The
compliance of rural municipality and city secretaries with professional qualifi-
cation requirements is supervised, and certificates of compliance are issued by
the Rural Municipality and City Secretaries Professional Qualifications Com-
mittee established by the Government of the Republic (Ministry of the Interior).
Rural municipalities and cities may use the following means to finance their
expenditures:
(1) Taxes imposed by the state;
(2) Allocations and appropriations from the state budget;
(3) Local taxes;
(4) Economic activity, including proceeds from municipal property; and
(5) Loans.
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The taxes imposed by the state fall into two categories: (a) taxes whose rate
cannot be altered by local authorities (personal income tax and natural resourc-
es user fees); and (b) taxes whose rates may be modified by local authorities
(land tax).
The main sources of rural municipalities and city revenues are the taxes
imposed by the state and subsidies from the State Budget. Other significant
sources of revenue are loans and revenue received from the sale or letting of
municipal property. The biggest portion (approx. ½) of the income for local
budgets comes from the state personal income tax (Table 4).
Table 4
The structure of local self-government income in 2005 and 2009
2005 2009
Type of revenue
million Euros % million Euros %
Personal income tax 406,793 43.43 634,097 49.09
Land tax 32,325 3.45 48,249 3.74
Environmental fees 8,685 0.93 15,627 1.21
Local taxes 7,533 0.80 9,452 0.73
Proceeds from economic activity 98,459 10.51 139,923 10.83
(including the sale of goods and
services)
Income from property 45,238 4.83 11,484 0.89
Budget equalisation fund 60,716 6.48 70,399 5.45
Block grants 186,498 19.91 220,886 17.10
Earmarked grants from ministries to 34,053 3.64 28,336 2.19
rural municipalities and cities for
special purpose
Other income 56,376 6.02 113,359 8.77
TOTAL 936,676 100.00 1,291,812 100.00
Separate items of revenue carry a different weight in the revenues of local

self-government units. For example, the weight of personal income tax varies
from 10% to 90%; the weight of personal income tax is generally more signifi-
cant in cities. The weight of land tax varies from 1% to 50%; the weight of land
tax is more significant in rural municipalities where there are many senior citi-
zens or people with low salaries. The considerable weight of natural resources
user fees is associated with the revenue of a few rural municipalities located in
the area of oil shale mining (Ida-Viru County). It is quite risky for a municipal-
ity to depend mainly on one type of tax. There have been cases in which one
half or even more of the municipal revenue consisted of the personal income
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tax of one or two local businessmen. The situation becomes extremely difficult
if the businessman decides to move (it has been known to happen) or has, in a
particular year, sold a number of shares and paid high income tax which is one
of the significant indicators for receiving subsidies for general purposes from
the State Budget (budget equalisation fund).
In 2003, the Riigikogu amended the Income Tax Act and, during the follow-
ing years, the rate of personal income tax will decrease by 1-2% annually. Due
to the decreasing rate of income tax, it is no longer possible to continue the
practice that allowed 56% of the total personal income tax received to be added
to the local budgets, and 44% to the national budget. The local government rev-
enue base was also affected since the Riigikogu has been known to increase the
amount of the basic exemption deductible from income. It was decided that in
order to avoid the negative effect on the local self-government revenue base, the
percentage of personal income tax added to rural municipality or city budgets
would be 11.4% (2004), 11.6% (2005) etc., regardless of the income tax rate and
the amount of basic deductible exemption or other tax exemptions (Table 5).
Table 5
The distribution of personal income tax between national budget and local self-
government budgets
Personal income tax To national budget To rural municipality

Year
(%) (%) or city budget (%)
2003 (and before)* 26 44 56

2004 26 14.6 11.4
2005 24 12.4 11.6
2006 23 11.3 11.7
2007 22 10.1 11.9
2008 21 9.07 11.93
2009 21 9.6 11.4*
2010 21 9.6 11.4
2011 21 9.6 11.4
* 26%=100%
Challenged by the global economic crisis, Estonia began to cut back its na-
tional budget deficit and the growth of its national debt, which is critical to
ensuring the country’s financial stability, and compliance with the «Maastricht
criteria» which must be observed by countries wishing to join the Euro zone.
Since the total local government deficit amounted to no less than 22% of the
state deficit, the Government of the Republic took preventive measures against
174
local self-government debt and national deficit growth. Hence, the 2009 budget
Act was twice amended, considerably reducing government expenditure, and
consequently local authorities income base. Their share of personal income tax,
for example, was cut from 11.93% to 11.40%, and several specific grants, such
as subsidies for education, culture and road maintenance, were also reduced.13
Land tax is also a national tax, but all its revenues are paid to local treasur-
ies. The rural municipality or city council determines the tax rate within limits
given by law. Land tax is 0.1–2.5% of the estimated value of land.14 In the case
of agricultural land, the rate is 0.1–2.0%. Land tax is not imposed on land where
economic activities are prohibited by law or pursuant to the procedure provided
by law; land in public use etc.
Local charges are another important source of income. For instance, the
purpose of applying environmental charges is to prevent or reduce possible
damage related to the use of natural resources, emissions of pollutants into the
environment and waste disposal. The proceeds from environmental charges are
divided between the state budget and the budgets of the rural municipality or
city of the location of the environmental exploitation. The rates for the natural
resources extraction charge are established per ton or cubic meter by a regula-
tion of the Government of the Republic. The Environmental Charge Act stipu-
lates that equal parts (50 per cent) of the natural resources user fees (user fees
for oil shale, sand, gravel etc) will be paid to municipalities as revenue.
The above three state-imposed taxes (personal income tax, land tax and nat-
ural resources user fees) are significant, because the total amount of the taxes
determines the amount of subsidies for general purposes allocated to rural mu-
nicipalities and cities, from the State Budget. The total amount of the above
three taxes collected by a local authority is divided by the population of the
rural municipality or city. The amount of subsidy for general purposes due to
the rural municipality or city from the State Budget is calculated on the basis of
a formula which takes into account the demographic structure of the municipal-
ity (the number of children at pre-schools, the number of students, the length of
local roads and city streets, etc.).15 The amount of the equalisation fund is in-
cluded in draft form in the state budget and its distribution is determined by
13
In 2009, the percentage of personal income tax was one month 11.9%, 3 months 11.93%
and 8 months 11,4%.
14
The National Land Board periodically fixes the taxable value of land depending on the
location and the purpose of its use (agricultural land, commercial land, land designed for trans-
port, public land etc.).
15
In 2002, the formula used for calculating the amount of resources to be allocated from the
state budget for the purpose of horizontal equalisation of municipal budgets was changed. The
previous, m-formula took into account only the total of three income articles – personal income
tax, land tax and natural resources royalties. The new formula also considers certain significant
socio-economic factors that have an influence on municipal expenditure such as the age structure
of the local population and the road network, and the difference between such expenditure in
different rural municipalities and cities.
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negotiations between the representatives of the associations of local self-gov-

ernment units and the Government of the Republic.
More than 80% of rural municipalities and cities (in 2009 – 183 from 226
rural municipalities or cities) in Estonia are entitled to the above subsidy for
general purposes. The rural municipalities and cities surrounding Tallinn are
the exception, since the revenue they raise from personal income tax is ex-
tremely high. Also, some rural municipalities in the North-East region of the
country do not receive the above subsidy for general purposes, because they
generate quite a lot of revenue due to natural resources user fees.
General purpose block grants are allocated to local bodies to cover expenses
like teachers’ salaries, subsistence benefits etc. Block grants from the State
Budget provide approx. 1/5 of local government revenue (see Table 4). There
are other specific funds, in domains such as subsistence and social benefits.
Their functioning is regulated by the Government of the Republic.
The Local Taxes Act (1994) determines the types of local taxes, the subject
of taxation, exemptions from tax, the basis of assessment and the rate of taxes.
Under these legal conditions, rural municipalities and cities may decide about
the type and rate of local taxes.
Local taxes are the following ones: advertisement tax; road and street clo-
sure tax; motor vehicle tax; animal tax; entertainment tax; and parking charges.
Since 1994, local taxes also included sales tax and boat tax, but after the deci-
sion of the Tallinn City Council to implement these taxes starting in 2010, the
Riigikogu decided to abolish them as of 2012. In terms of relative importance,
local taxes in Estonia amount to less than 1% of local self-government revenue
(Table 4). Advertisement tax, road and street closure tax and parking charges
are the most frequently imposed local taxes. However, more than 3/4 of local
authorities have not imposed any local taxes.
Rural municipalities and cities can borrow to cover the investments pre-
scribed by the rural municipality or city development plan. The amount to be
borrowed cannot exceed 60% of the budget revenue of the current year and a
repayment profile must be devised so that the repaid amount does not exceed
20% of the revenue in a given year.
Several ministries allocate earmarked grants to local authorities for special
purposes or to support municipal investments. Local self-government may
freely decide on fees and charges paid by users for public services. They may
have some resources from municipal assets, for example, from the privatiza-
tion of municipal property. There are, however significant differences between
the cities and rural municipalities in their capacity to obtain revenues from this
source.
The Constitution guarantees that rural municipalities and cities have inde-
pendent budgets. The Ruling of the Supreme Court of Estonia 3-4-1-8-09 (16
176
March 2010) describes the right and obligation to decide and organise autono-
mously all local issues based on law, pursuant to subsection 154 (1) of the
Constitution. Subsection 157 (1) of the Constitution specifies the right to mu-
nicipal self-administration and stipulates that a local authority has its own
budget that is drafted according to procedures provided by law. The budget of
a local authority is part of the public sector budget, but it is not part of the State
Budget.
Rural municipalities and cities have overall autonomy to manage their own
property and earn income.16 The local council establishes the procedure for the
administration of its property. A rural municipality or city may transfer a real
estate asset that has been transferred to it the State if such asset ceases to be
necessary or has become unsuitable for the performance of the functions of
local government. A rural municipality or city has the right of pre-emption
upon the transfer of structures located within its administrative territory by
private persons and individuals if the structures were used, in whole or in part,
by an educational, health care, cultural or child care institution for not less
than one year prior to the transfer. Otherwise, the provisions of the Law on
Property apply.
The biggest problems regarding municipal property are related to land prop-
erty. According to an overview conducted in December 2010 by the National
Audit Office regarding land owned by rural municipalities and cities, no one
knows exactly how much land rural municipalities and cities have and what
kind of land they need. The State’s databases give a complete overview of land
owned by private persons and individuals, but it is impossible to say how much
land in Estonia is owned by rural municipalities or cities based on this informa-
tion, because rural municipalities and cities do not have to register their land in
the Land Register.
Local authorities received most of their land free from the State through
land reform: almost 15,000 plots of land with a total area of nearly 30,000 hec-
tares (>1% of all land registered in Estonia) had been given to local self-gov-
ernment units by 2010. Rural municipalities and cities obtained the remaining
plots of land through purchase from private owners or the State, and by means
of inheritance or donation. Some local authorities received hundreds of hec-
tares of land (manor land that belonged to local self-government before 1940 or
military land from the Soviet period) from the State through land reform and
16
A significant amount of municipal revenue of big cities is generated from letting or selling
municipal property. The latter is, naturally, one-time income. For example, Tallinn received ap-
prox. 60 million euros for 51% of the shares of the company providing the town with water sup-
ply and wastewater services (AS Tallinna Vesi) in 2001.
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have used it for developments and a source of income; other local bodies have
had to acquire land.
The local authorities that received the most acreage during land reform were
the cities of Tallinn (3,722 ha), Tartu (1,315 ha) and Rae rural municipality
(1,084 ha). Forty percent of local government units have received less than 50
hectares of land free of charge through land reform. The majority of land (81%)
is given in municipal ownership based on resolutions by county governors,
while the remaining cases were settled by the Government of the Republic,
which has broader discretionary powers concerning municipalisation.
Rural municipalities and city councils have exclusive competency regarding
the submission of applications for the expropriation of real estate property. The
rural municipality or city council must submit an expropriation application of
private property to the Minister of Internal Affairs, who submits it to the Gov-
ernment of the Republic for a final opinion.
9.1. Introduction
Local authorities are required to conduct internal audits. Each rural munici-
pality and city council must establish an audit committee consisting of at least
three members, for the duration of its term of office. All members of the audit
committee shall be elected from among the council members. The audit commit-
tee monitors several aspects of the financial running of the local authority,
among others: 1) the conformity of the activities of the municipal executive
board with the regulations and resolutions of the municipal council; 2) the ac-
curacy of the accounting of municipal agencies and agencies under the adminis-
tration of municipal agencies, and the purposeful use of municipal funds; 3) the
timely collection and registration of revenue and the conformity of expenditure
with the rural municipality or city development plan. In addition to internal con-
trol by council audit committee, many bigger cities (like Tallinn, Tartu, Pärnu)
have professional internal control offices. Since 2003, rural municipalities and
cities are required to add an independent auditor’s report to the annual report and
the budget report.
External state control and supervision is performed by different state bodies
and agencies: the Chancellor of Justice (Õiguskantsler), the National Audit Of-
fice (Riigikontroll) and the County Governors (maavanem). The purpose of this
supervision is to ensure the lawfulness of municipal activities (article 160 of the
Constitution). It must be understood that state control and supervision over lo-
cal government is permitted only if it is stipulated by law. Basically, the system
of state supervision over the legal functioning of local government has re-
mained unchanged in Estonia since the early 1990s.
178
9.2. The Chancellor of Justice
According to the Constitution (article 139), the Chancellor of Justice (Legal

Chancellor), is an independent official who ensures that legislation adopted by
local self-government bodies complies with constitutional and other law. If the
Chancellor of Justice deems that legislation adopted by a local authority is con-
trary to the Constitution or law, the governing body that has adopted it is noti-
fied that it has 20 days to modify the act. If this is not accomplished within the
given time period, the Chancellor of Justice will propose to the Supreme Court
(Riigikohus) that the act be declared null and void. The Chancellor of Justice is
required to present an annual report to the Parliament on legislation adopted by
the state legislature, the national government and local authorities, and its com-
pliance with the Constitution and law.
Another important constitutional task entrusted to the Chancellor of Justice
is the function of the ombudsman, according to the Chancellor of Justice Act
(passed on 25 February 1999). The Chancellor of Justice must ensure that state
agencies respect the citizens’ fundamental rights and freedoms and the princi-
ples of good governance. An amendment to the Act, entered into effect on 1
January 2004, further expands the functions of the Chancellor of Justice as an
Ombudsman. Consequently, the Chancellor of Justice now also supervises lo-
cal authorities, public-law legal entities and private persons who exercise pub-
lic functions. These cumulative and closely related tasks give the Chancellor of
Justice a broader range of aspects to monitor in the activity of local authorities,
namely the respect of fundamental constitutional values such as human dignity,
democracy, the rule of law, and the welfare state.
9.3. The National Audit Office
According to the Constitution (article 133) the National Audit Office shall
supervise the use and control of state assets which have been transferred to
local authorities. The National Audit Office conducts economic audits of local
government units in so far as they use non-movable and movable property
transferred by the state, allocations for specific purposes and subsidies granted
from the State Budget, and funds allocated for the performance of state func-
tions. The National Audit Office also audits the use of the funds of the Euro-
pean Union allocated through the state or local authorities and the compliance
with obligations towards the European Union assumed in connection with
such funds. With regard to the end users of the funds of the European Union
and persons who have obligations towards the European Union, the National
Audit Office has the right to ascertain the validity of the circumstances that
justified the receipt of such funds. It may also verify the lawful use of the
funds and the actual performance of the obligations taken by the applicant of
the funding.
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However, the new National Audit Office Act , adopted in 2002, granted the
National Audit Office considerably more rights in this area. The National
Audit Office can now audit several aspects: a) the use of municipal property
in municipalities; b) non-profit organisations and foundations provided there
is a municipality among their founders or members; and c) companies in
which a municipality has a majority holding. On the other hand, the National
Audit Office has the power to inspect several features of the local bodies
working: (1) internal control, financial management, financial accounting
and financial statements; (2) the legality of the economic activities, including
economic transactions; (3) the reliability of the information technology sys-
tems. In 2006, a department was established by the National Audit Office to
audit municipalities. The Local Government’s Audit Department audits rural
municipalities and cities, focusing mainly on the legality of the internal con-
trol systems, financial management, financial accounting and economic
transactions, etc.
9.4. The County Governor
The county governor has the power to supervise the legality of legislation
and adjudications of local bodies within his jurisdiction, in the cases and to
the extent provided by law. For instance, he may check the legality of the use
of state assets by local authorities. On the other hand, the county governor or
an official authorised by the governor has the right to control the performance
of state functions assigned to local self-government by law or assumed by
local government by an inter-administrative agreement. However, the county
governor has no authority to stop or declare void any measures taken by a lo-
cal body; he can only suggest that the local body take the necessary measures
to comply with the law. If the rural municipality or city does not change its
mind in order to comply with the law, the county governor has to appeal to
the courts. In cases set by law, the county governor also has the right to file a
petition with the Chancellor of Justice or to submit a report to the National
Audit Office.
9.5. The courts
The principal judicial institutions inspecting public institutions, including

municipal institutions are administrative courts (four in Estonia) and the Con-
stitutional Review Chamber of the Supreme Court. These institutions are not
concerned with whether local self-government act inexpediently. They exercise
control over the legality of the public institutions’ activity. As regards private
law transactions of local governments, these fall within the jurisdiction of the
civil courts.
180
A rural municipality or city has the right to apply to the court to defend its
legal rights or to resolve arguments. In order to protect the common interests of
its members, an association has the right to file an action with an administrative
court. According to the Constitutional Review Procedure Act, the Supreme
Court shall verify the conformity of legislation, the refusal to issue a piece of
legislation or the conformity of an international agreement with the Constitu-
tion on the basis of a reasoned request, court judgment or ruling. The President
of the Republic, the Chancellor of Justice, a local government council and the
Riigikogu may submit requests to the Supreme Court. According to this Act, a
local authority may submit a petition to the Supreme Court to declare an Act
which has been proclaimed (but not yet in force) or a governmental regulation
(if it has not yet entered into force), to be in conflict with the Constitution The
Supreme Court can also be asked to repeal an Act which has entered into force,
a governmental regulation or a provision thereof if it is in conflict with the con-
stitutional guarantees of the local self-government.
Estonia has 7 seats in the Committee of Regions of the EU. In the Commit-
tee of Regions, the Association of Estonian Cities has 4 full and 3 alternate
members, and the Association of Rural Municipalities of Estonia has 3 full and
4 alternate members in Estonia’s national delegation. All members are either
members of rural municipalities or city councils (including the chairman of the
Tallinn City Council etc.) or mayors of rural municipalities or cities. Members
of the Committee of the Regions have access to the electronic system of EU
documents (ELIS).
On the other hand, the Association of Estonian Cities and the Association of
Rural Municipalities of Estonia opened an office in Brussels on 13 October
2005. The office works proactively to promote joint interests of Estonian local
self-government units in EU legislation, funding and policy, and provides di-
rect communication to EU institutions, organisations and networks.
The implementation of the EU cohesion policy is carried out at the central
level. The Ministry of Finance has overall responsibility for the management of
structural funds. Each priority has its own implementing central Department:
Education and Research; Economic Affairs and Communications and Environ-
ment. From 2007-2013, Estonia was allocated more than 3.4 billion Euros from
Structural funds for actions in fields such as energy economies, entrepreneur-
ship, administrative capability, education, information society, environmental
protection, regional and local development, research and development activi-
ties, healthcare and welfare, transportation and the labour market. Local au-
thorities must work as teams or at least draw up joint projects in order to access
EU structural funds.
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12.1. Case law
Judgment of the Supreme Court of Estonia en Banc 3-4-1-8-09, 16 March 2010

Petition of the Tallinn City Council of 2 April 2009 (Primarily on issues of
financing local self-government functions)
Judgment of the Supreme Court of Estonia en Banc 3-4-1-16-09, 22 December
2009 Petition of the Tallinn City Council of 18 June 2009 and 3-4-1-2-09, 9
June 2009 Petition of the Tallinn City Council of 9 February 2009 (Local
self-government council elections and the formation of the districts of
Tallinn)
Judgment of the Supreme Court of Estonia en Banc 3-4-1-14-08, 15 December
2008 Petition of the Tallinn City Council of 8 September 2008 (PPP projects
in local self-government)
Judgment of the Supreme Court of Estonia en Banc 3-3-1-46-03, 19 April 2004
Petition of a Rural Municipality Council of 5 February 2002 (Support from
the State Budget to local self-government budgets, including the equalisa-
tion fund)
Judgment of the Supreme Court of Estonia en Banc 3-4-1-1-05, 19 April 2005
Petition of the Chancellor of Justice of 21 December 2004 and 3-4-1-7-02,
15 July 2002 Petition of the Chancellor of Justice of 21 May 2002 (in the
local self-government council elections, the prohibition to form election
coalitions)
12.2. Selected bibliography on local government and self-government
Mäeltsemees, Sulev: Local Self-government in Estonia. Encyklopedia about

Estonia (Estonica). www.estonica.org/en/
Mäeltsemees, Sulev: Local Government in Estonia. In: «Decentralization: Ex-
periments and Reforms.» Edited by Tamas Horvath. Budapest, Local Gov-
ernment and Public Service Initiative, 2000, pp. 64 – 113.
Lõhmus, Mikk: Decentralization of Public Administration in Estonia. Doctoral
dissertation, 2008. Tallinn University of Technology, Faculty of Social Sci-
ences.
Linnas, Raivo: An integrated model of audit, control and supervision of the
Local Self-Government sector: the case of Estonia. Doctoral dissertation,
2010. Tallinn University of Technology, Faculty of Social Sciences.
Olle, Vallo: Exercise of local government in the form of direct democracy: lo-
cal public initiative and referendum. Doctoral dissertation, 2002. University
of Tartu, Faculty of Law.
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State portal of Estonia: www.riik.ee/en

Estonian legislation in English: www.legaltext.ee
Association of Estonian Cities: http://portaal.ell.ee/
Association of Rural Municipalities of Estonia: http://www.emovl.ee/index.
php?keel=eng
Parliament of Estonia: http://www.riigikogu.ee/?lang=en
Ministry of the Interior of Estonia: http://www.siseministeerium.ee/?lang=en
Ministry of Finance of Estonia: http://www.fin.ee/?lang=en
Supreme Court of Estônia: http://www.riigikohus.ee/?lang=en
National Audit Office of Estonia
http://www.riigikontroll.ee/tabid/36/language/en-US/language/en-US/Default.
aspx
Chancellor of Justice of Estonia: http://www.oiguskantsler.ee/?lang=eng
Statistics about Estonia: www.stat.ee
Faculty of Social Sciences of the Tallinn University of Technology:
http://www.ttu.ee/faculty-of-social-sciences
Web encyclopaedia about Estonia: http://www.estonica.org/en/
183
Chapter 8:
LOCAL GOVERNMENT IN FINLAND
Olli MÄENPÄÄ
Local self-government and local democracy have a long tradition in Fin-

land, which goes back to the late Middle Ages. General legislation on local
government was first adopted in the 19th century, when separate laws on rural
and urban municipalities (1865 and 1873) were enacted. The new laws made it
possible to arrange the first municipal elections.
Finland gained independence from Russia in 1917. An express provision on
municipal self-government was included in the first Constitution in 1919, when
new comprehensive municipal laws were adopted for rural and urban areas. In
all municipalities, the council must be elected in free and democratic elections.
The municipal functions remained limited during the first half of the century.
With the evolution of the welfare society (1950-1980), most public services
(health care, social benefits, basic education) were assigned or transferred to the
municipalities. Consequently, they become a local extension of the State under
ministerial tutelage. To counteract this development, an experiment was initiat-
ed in 1989 to re-empower municipal autonomy. State regulation and control of
the municipalities were significantly reduced and the state subsidy system was
reformed, which included the introduction of non-earmarked block grants.
The current Municipal Act (1995) continued this decentralisation trend by
allowing more municipal diversity and conferring wider powers to the munici-
palities to manage their functions and administrative structures independently.
New market-oriented techniques have become more common in managing mu-
nicipal functions that include outsourcing of services, Public-Private Partner-
ship arrangements and the introduction of more managerial models in munici-
pal administration.
Maintaining the financial basis of municipal services and meeting the chal-
lenges to the municipal economy are two important current issues. An ambi-
185
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tious project has been launched to overhaul the municipal administration by

vitalizing self-government, strengthening the sustainability of municipal econ-
omy, expanding local democracy and reforming the structure of municipal ad-
ministration.
Finland is a bilingual (Finnish and Swedish) republic, with a population of

5.4 million and an area of 337,000 sq. kilometres. The combined population of
the capital city, Helsinki, and neighbouring areas is one million residents. Mu-
nicipalities have a predominant role in providing public services, and are an
essential element of the Nordic welfare society.
The basic unit of local government is the municipality (kunta, kommun). There
are presently 336 municipalities, of which 108 are cities (kaupunki, stad) and the
rest are regular or ordinary municipalities. The municipalities are uniform in that
they enjoy the same legal status, bear the same responsibilities, exercise equal
authority, and have the same kind of democratic and executive bodies. Despite
this, there are differences such as the number of residents, the economic base, the
geographic location, size and the level of employment. An average municipality
has 16,000 residents. One third of the country’s population lives in the eight Finn-
ish municipalities (cities) with over 100,000 residents. The capital city, Helsinki,
has no special constitutional or legal status in domestic legislation, and there is no
legal procedure to designate the capital of the country. The capital city’s status is
regulated by the Municipal Law as one of the municipalities. Although there are
no specific provisions concerning the capital, it is generally recognized that
framework legislation is necessary to govern an area of this type.
Inter-municipal cooperation plays an important role in the provision of pub-
lic services. The «joint municipal authority» (kuntayhtymä, samkommun) consti-
tutes the basic form of cooperation between municipalities, and Finland’s 184
joint municipal authorities also form the second tier of municipal government.
On the other hand, there are also 19 «provinces» (maakunta, landskap),
which are are formed by municipalities. Therefore, provincial self-government
is constituted «from the bottom up», and provinces rely heavily on municipali-
ties. Provinces have limited functions as regional development and planning
authorities and promoters of regional interests, except for the province of Åland
that was granted special status and wide autonomy including legislative pow-
ers, by the Constitution.
The state administration also has offices at the regional and local levels. At
the regional level there are Regional State Offices (aluehallintovirasto, region-
förvaltningsverket) and several other regional state agencies. The local state
administration consists of police, prosecutor’s offices, registry offices and tax
authorities.
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local government in finland
3.1. The role of the European Charter of Local Self-Government
Finland signed the Charter on June 14, 1990, with no reservations or limi-
tations. On the basis of a government bill, the Parliament passed an Act on the
adoption of certain provisions of the European Charter of Local Self-Govern-
ment, in 1991. This general incorporation Act contains only two brief provi-
sions: Section 1 states, «insofar as the provisions of the Charter fall within the
scope of legislation, they are in force as has been agreed»; Section 2 dictates
that the act will enter into effect by a government decree. Consequently, the
act became effective on 10 October 1991, following the decree of 6 Septem-
ber 1991.
The actual text of the Charter was published separately. No specific legisla-
tion was required to vest it with legal force. Since the Charter was incorporated
by an ordinary Act of Parliament, its provisions have the same rank as ordinary
laws, and are directly applicable by courts and administrative authorities. In the
preamble to the bill, the relationship between each of the articles of the Charter
and relevant national legislation was examined, and the conclusion was that
Finnish legislation contained no provisions that would conflict with the Char-
ter, so no laws had to be amended. The only reason why the Charter was al-
lowed to regulate areas pertaining to national legislation was that the Act on the
Autonomy of the Åland Province had already given exclusive power to the
legislature of the autonomous province of Åland to regulate its municipal ad-
ministration.
In actual judicial practice, however, the provisions of the Charter may be too
imprecise and vague to have direct legal effect, or to be the sole basis for a judg-
ment in an individual case. It is more likely that the role of the provisions would
be to serve as legal principles to inform and influence the interpretation and
application of domestic statutes. Moreover, there was little public debate on the
rights and obligations when the Charter was incorporated, which was due main-
ly to the opinion that it would add nothing substantively new to the existing
legal system.
3.2. Domestic constitutional framework
Municipal autonomy is expressly recognized in Section 121(1) of the Con-

stitution (1999). Accordingly, Finland is divided into municipalities, «whose
administration shall be based on the self-government of their residents.»1 The
1
Full text of art. 121 of the Finnish constitution: «Municipal and other regional self-govern-
ment. Finland is divided into municipalities, whose administration shall be based on the self-
government of their residents. Provisions on the general principles governing municipal admin-
187
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Constitution also specifically guarantees municipalities the right to levy mu-

nicipal tax. Provisions on the general principles governing municipal adminis-
tration and the duties of the municipalities are laid down by law. New functions
or duties may be entrusted to the municipalities only on the basis of a specific
provision in an act of Parliament.
According to the established practice of the Constitutional Law Committee
of Parliament2, the following features are considered fundamental characteris-
tics of municipal self-government:
(a) The municipality has the right to take charge of its administration and
finances independently. State authorities have no general power to con-
trol municipalities or to issue binding directives or administrative orders
that may affect them. State authorities may intervene only to a limited
extent as specifically provided by law enacted by Parliament.
(b) Municipal decision-making powers are held by the bodies elected by
direct and secret ballot in municipal elections. The municipality may
delegate these powers within the municipal organisation and for the
purpose of inter-municipal cooperation.
(c) Municipal authority is general and broadly-based, but the exercise of
public power in individual cases must be specifically contemplated in
the law. An act of Parliament is needed to impose new functions and
financial obligations on municipalities, and also to relieve them of exist-
ing functions.
(d) Municipalities have the right to levy taxes on their inhabitants and other
local bodies subject to taxation. Each municipality determines its tax
rate independently.
(e) A commensurability requirement is binding for any new legislation in
that new responsibilities may be imposed on municipalities only if they
are granted the proportionate and appropriate financial resources to car-
ry out the new tasks.
Although the Constitution says very little about the status of provinces and
other territorial units, Section 121(4) foresees the possibility of provincial self-
government: «Provisions on self-government in administrative areas larger
istration and the duties of the municipalities are laid down by an Act. The municipalities have the
right to levy municipal tax. Provisions on the general principles governing tax liability and the
grounds for the tax as well as the legal remedies available to persons or entities liable to taxation
are laid down by an Act. Provisions on self-government in administrative areas larger than a
municipality are laid down by an Act. In their native region, the Sami have linguistic and cul-
tural self-government, as provided by an Act».
2
��
The Committee’s principal function is to supervise the constitutionality of the bills submit-
ted to it. The Committee hears experts on issues of constitutional law and human rights and, after
consideration, issues binding statements on the constitutionality of the bills. The Committee also
considers the bills’ bearing on international human rights instruments.
188
than a municipality are laid down by Act.» Pursuant to this provision, provin-
cial self-government may be considered to have a semi-constitutional status. In
addition, the autonomous status of the Åland Islands is recognized in Section
120, which states that the self-government of the Åland Islands is specifically
regulated in the Act on the Autonomy of the Åland Province.
3.3. Main legislation on municipalities
The Municipal Act (1995) contains more specific rules on the organization
of municipal administration and its activity. The general scope of municipal
responsibilities is determined in Section 2: it is the responsibility of each mu-
nicipality to carry out functions falling within the sphere of its autonomy as
well as other functions entrusted to it by law. Accordingly, it is conventional to
distinguish two spheres of municipal competence: (a) the general municipal
powers, which are based solely on the municipal autonomy, and (b) the special
municipal powers, based on and defined by special laws.
There is no neat borderline between the general and special powers of the
municipality nor are there any stable grounds for determining how the func-
tions should be distributed between central government and the autonomous
municipal authorities. However, it is generally accepted that in order for the
municipal autonomy to have real and substantial meaning, a municipality is, in
principle, competent to handle all matters of common local interest. Since mu-
nicipal competence is defined as «general», there is no exhaustive list of mu-
nicipal responsibilities established by law. Instead, there are several legislative
enactments that regulate municipal competence in specific spheres. Legislation
of this kind is necessary whenever a new responsibility or duty is conferred to
the municipalities, especially in such areas as public services and benefits, en-
vironmental protection, land-use planning, regulation of building and waste
management or supervision of general health.
Other significant legislative enactments include the Municipal Repartition
Act (2009), the Act on the Autonomy of the Åland Province (1991), The Re-
gional Development Act (2009) and the Act on Regional State Offices (2009).
3.4. Administrative regulations
According to the Constitution, municipal autonomy is based on law, and the

law also establishes the municipalities’ functions. These basic provisions pre-
vent state authorities from binding municipalities to state administrative regula-
tions or directives. Delegated legislation (government decrees) can regulate the
application and execution of statutes enacted by Parliament and this also ap-
plies to the exercise of powers entrusted to the municipalities.
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AUTHORITIES
4.1. Regulatory powers
Municipal authorities exercise regulatory powers pursuant to specific secto-

ral laws. They are also largely responsible for land-use planning and building
supervision. Environmental protection is, to a large extent, a local responsibil-
ity, and so is the monitoring of compliance with general health and sanitation
standards.
In the exercise of their regulatory functions, the municipal authorities have
various administrative powers. They grant administrative permits for building
and construction, adopt land-use plans for their area, impose administrative
sanctions for breaches of legislation and inflict conditional fines, pursuant to the
enforcement of duties required by legislation. The municipalities have only lim-
ited rule-making powers, since the basis of any right or obligation must be deter-
mined by an act of Parliament. Municipal rules and standards may be adopted to
determine local standards for e.g., environmental and health requirements.
The law requires municipalities to promote air pollution control, supervise
solid waste management, monitor and guide noise abatement and to take meas-
ures to avoid undue pollution of bodies of water. Municipalities are also re-
quired to plan for comprehensive environmental protection and to monitor the
state of the environment within their boundaries. A permit or approval from a
state environmental authority is required for wastewater discharges and emis-
sions to the air, and for handling wastes and chemicals. Municipal authorities
grant environmental permits and approvals for activities that have only local
repercussions.
Under Section 15(2) of the Constitution, expropriation for public needs is
possible in exchange for full compensation as regulated by law. Expropriation
of real estate may also be used for the benefit of local authorities pursuant to the
conditions stipulated in the Act on Expropriation (1977).
The municipalities have the power to expropriate property only under specific
conditions and pursuant to an express provision in law. The most significant in-
stances of compulsory taking or purchase of property are those regarding the en-
forcement of planning decisions. Thus, a municipality is entitled to expropriate an
area to execute a detailed local plan, if the plan designates that area for municipal
purposes. In addition, provided there is a pressing general need, a Ministry may
authorize a municipality to expropriate an area for community construction and
related purposes, or for other planned development of the municipality.
Under the Act on Pre-emptive Purchase (1977), when two private parties
agree to convey property, the municipality has an anticipatory or preferential
right to acquire the such conveyed land in order to develop the municipal struc-
190
ture, for recreational purposes, or for the sake of nature conservation. This right
can be applied only after the contractors have concluded their deal, and the
municipality takes the place of the purchaser, in the same conditions they had
agreed on.
4.2. Municipal services
The municipalities play a pivotal role in producing and providing most of

the basic public services for local residents. They run comprehensive and voca-
tional schools and provide adult education, libraries, and cultural and leisure-
time services. Municipal authorities are also largely responsible for child day-
care, care for the elderly and the disabled, and socially targeted housing and
income support for those in need. Municipal health centres provide primary and
secondary health care and dental services. In addition, municipalities are also
generally responsible for the upkeep of local infrastructure and the provision of
many of the public utilities such as construction and maintenance of streets,
water and energy supply, and the coordination of waste disposal. To a degree,
such functions are handled by municipal companies under private law.
Municipalities play a significant role in basic education by organizing ac-
tivities and providing services. They also operate comprehensive schools, sen-
ior secondary schools, and vocational and professional education institutions.
Private schools are also possible, but they need a licence issued by the Ministry
of Education and are required to follow the general curriculum. All forms of
basic education are free. Municipalities also provide adult education, libraries,
and cultural and leisure services, and are entitled to government grants for found-
ing and operating costs.
They also deliver, organize and/or purchase most health services for their
residents. Municipalities and joint municipal authorities own and administer
health centres for primary care. Since these areas are small, joint local authori-
ties - hospital districts - own most of the specialized hospitals and administer
all public hospitals. Each municipality is required to be a member of the joint
municipal authority in charge of administration for a health district. The health
centres provide primary care, school health care, community nursing, long-
term care wards and free dental services for patients under 18 years. They also
administer health and community care. Most centres have an in-patient depart-
ment, and public hospitals provide 95% of specialist medical care.
Municipalities provide most social and welfare services and more than half of
the employees in the municipal sector work in social services and health care.
These services amount to more than 40% of local authorities’ expenditures. All
children under school age are entitled to municipal day care after maternity
leave has ended. As an alternative, the local authority can also pay a home-care
allowance to families of small children who are looked after at home. Two-
191
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thirds of the day-care units are in municipal day-care centres, while the remain-
ing third is in-home care. Local authorities are also responsible for providing
care for the elderly. Services for the disabled and mentally handicapped, along
with other social services, account for about 30% of expenditure for social serv-
ices. These services are generally free of charge. If a person’s earnings are in-
adequate, subsistence is ensured through income transfers under the social in-
surance scheme. Municipalities are ultimately responsible for residents’
subsistence. A person who cannot earn a reasonable living can receive munici-
pal income support following a case evaluation.
On the other hand, municipalities are responsible for local waste manage-
ment, which includes hiring services to transport, recycle and otherwise handle
community or similar wastes. The same is true for hazardous waste produced
by households or agriculture and forestry operations.
Another field of municipal activity is the delivery of a wide selection of
cultural and leisure services. Theatres, orchestras and museums, are often run
by them or receive indirect funding. There is a dense network of museums,
theatres and orchestras in comparison to the country’s population. Local au-
thorities often financially support cultural associations and their events or pro-
vide them with the premises. Municipalities also maintain libraries whose serv-
ices are generally free of charge.
Public transport is often arranged in cooperation with private companies.
Larger towns use financial support from city authorities to maintain a high
level transport system, while smaller towns and rural areas have a more basic
level funded by state and local authorities
Public utilities are usually owned by municipalities and a few belong to
private corporations. Generally, the large cities have their own energy author-
ity that distributes power to areas, and some of the bigger ones also generate
electricity. In other municipalities, private companies or companies owned by
several local authorities provide electricity. There is free competition in the
electricity market. Finally, municipal energy authorities generally supply district
heating. The local council of municipalities decides on which areas will need
water supply and sewage. Almost the full cost of these utilities is covered by rates
charged to users.
5.1. Division of powers within the municipal organisation
The Municipal Act presupposes a slightly modified division of powers with-

in the municipal organisation. The decision-making powers are exercised by
the Council (kunnanvaltuusto). Its members are directly elected in municipal
elections every four years. The executive functions are carried out by the mu-
192
nicipal Board (kunnanhallitus) and the administrative bodies controlled by it.

The Council may also conduct consultative referendums on municipal issues.
The Board (kunnanhallitus), the municipal committees, and the administra-
tive staff perform the tasks of general administration and implement municipal
decisions. The Board is composed of persons elected by the Council according
to a proportional ratio. Its main duties include supervising and coordinating the
committees and municipal staff, and drafting and implementing the council’s
decisions. The Board also conducts a preliminary check on the legality of the
decisions passed by the Council.
The Council is clearly the principal municipal authority, because its legiti-
macy is granted by local voters. The Council (assembly) and the Board (the
executive) are separate units with distinct functions and position in the munici-
pal organisation. The Council is the «legislator», because it exercises decision-
making powers in all the fundamental or far-ranging issues and questions of
special significance for the municipality. The Board and the subordinate Com-
mittees implement the Council’s decisions, so their functions are largely «ex-
ecutive».
The system of municipal authorities reflects the parliamentary model. The
members of the Board are generally councillors. The Council may even decide
that only councillors and deputy councillors may be elected to the Board. The di-
rectly elected Council may also dismiss members of the municipal Board, in mid-
term, if the Council losses confidence in all or some of the Board members. In this
sense, the Board is answerable to the Council as a whole. Also, the municipal
manager (kunnanjohtaja) acts as the top executive of the municipal staff. The sys-
tem, though, is based on a modified model of parliamentarism, since all political
groups have their proportionate share of seats on the Board and in the Committees.
Thus, no permanent, institutionalized system of opposition – majority exists. In-
stead, temporary and ad hoc coalitions are common in voting situations.
5.2. The Council
The Council exercises the decision-making powers of the municipality. As

a directly elected body, it derives its mandate from the local voters and repre-
sents their political interests. Citizens vote for individuals rather than party
lists. The number of councillors is determined in proportion to the population,
and may vary from 17 to 85 members.
The Council is the supreme decision-making body and is responsible for the
local authority’s finances and operations. Since the Board is responsible to the
Council, the Council also keeps a keen eye on the expediency and appropriate-
ness of the Board’s activities. The Council can set up committees to manage
actions including social and health care service, education, urban planning and
environmental regulation.
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5.3. The Board (kunnanhallitus)
The members of the Board are chosen by the Council. The parties repre-
sented in the Council obtain seats on the Board in proportion to their share of
Council seats. Since all parties are represented on the Board, there is no actual
opposition/government setting in municipal decision-making. The Board is the
highest executive body of the municipality and is responsible for the general
administration and financial management. Specifically, it prepares and exe-
cutes Council decisions and supervises their implementation. The Board also
represents the municipality by exercising its right to be heard, oversees its in-
terests and supervises the legality of Council decisions.
5.4. Municipal committees
Each municipal committee is responsible for the administration of one of the

main areas of municipal activity. The Council elects the committee members
by proportional vote, and may set up other committees to carry out municipal
functions. Some committees also have a statutory basis and enjoy more free-
dom in their decision-making within the municipal organisation. Some com-
mittees, especially those responsible for health services, education, social care,
housing, and environmental protection have ample administrative decision-
making powers and executive functions within the municipal administration,
which are delegated to them by the Council. To a large extent, these powers are
assigned through specific legal rules.
5.5. The Municipal Executive body (kunnan hallinto)
The municipal executive body consists of an appointed administrative staff

and the Board, which is elected by the Council. Traditionally there is a clear
distinction between the Board and the appointed administrative officials, who
are responsible for professional municipal management.
The third administrative body is the elected Manager who supervises and
coordinates the administrative staff. This person is granted a status equivalent to
a manager (kunnanjohtaja) or a mayor (pormestari), and each municipality is
free to choose either option. The basic difference between these two positions is
that the Manager is part of the administrative staff and has the status of a mu-
nicipal official. In contrast, the Mayor chairs the Board and is more politically
responsible, so the position is comparable in status to other Board members.
Since the Manager and the Mayor are elected by the Council, one might say that
they are elected «executive bodies», but there is a common understanding that
only the Mayor can be part of the executive political body, while, from a technical
point of view, the Manager is part of the municipal administrative staff.
194
As an essential element of a welfare society, the municipalities take a pre-

dominant role in providing public services such as health care, social, educa-
tional and cultural services, infrastructure maintenance and environmental pro-
tection. To a large extent, they perform these functions by pooling their efforts
to constitute joint municipal authorities, which are a vital form of inter-munic-
ipal cooperation.
Inter-municipal cooperation can be characterized as a well-established ad-
ministrative practice in Finland, and its traditional framework is defined in the
Municipal Act, which facilitates its implementation. In most cases, cooperation
is voluntary and spontaneous, based on the initiative of the municipalities con-
cerned, but some cooperation is mandatory, particularly in the areas of special-
ist health care and regional planning.
Today, there are 184 joint municipal authorities consisting of two or more
municipalities, operating on a contractual basis, that are responsible for specific,
permanent tasks. The most important joint authorities deal with hospital dis-
tricts, basic health services in health centres, districts for the care of the disabled,
vocational education and the provinces. The municipalities finance the operation
of the joint authorities, since these cannot levy taxes for revenue. Three-quarters
of all joint authority expenditure is used to organise health services. The Mu-
nicipal Act (at Sec. 76) specifically provides that municipalities may perform
their cooperative functions under administrative contract. Sections 76-87 regu-
late several aspects of inter-municipal cooperation through joint bodies: forms
of cooperation, setting up of joint bodies and the content of the contract, admin-
istrative framework, financing and decision-making, as well as procedure to
amend and terminate joint arrangements, resignation, and dispute-solving.
Cooperation may also be based on private law, and municipalities often re-
sort to contractual cooperation, thus eliminating the need to form a specific
body particularly in situations involving water supply, rescue services, building
inspection, consumer and debt counselling, and education. Municipalities may
also set up bodies under private law, including limited companies, cooperative
societies, associations and foundations, for actions involving waste manage-
ment purposes, vocational schools and others.
Public procurement of services is also based on contractual arrangements
with either other municipalities or private service providers.
6. HUMAN RESOURCES
Municipalities and their joint authorities employ about 20% of Finland’s

workforce, and roughly 80% of the municipal personnel work in health care,
education and social services. Local government employees are classified into
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two principal groups according to their legal status: municipal officials and
municipal employees. The rights and duties of the latter are based on contrac-
tual relationship under private law. The Employment Contracts Act regulates
both this employment contract and those of the private sector.
Municipal officials are in a non-contractual employment relationship, which
falls under administrative law. According to the Municipal Act, only municipal
officials may be empowered to exercise public authority. The status of munici-
pal officials is regulated by the Municipal Officials Act (2003). In addition,
general provisions in the Municipal Act (1995) regulate the status of these of-
ficials. In practice, the differences between state and municipal officials are
minor, even though the statutory basis for their rights and duties is different.
Municipalities are free to select and manage their staff, and neither central nor
regional authorities have any say in the administration of a these employees.
7.1. Sources of municipal revenue
Funding for Finnish municipalities is derived from three main sources: mu-
nicipal taxes, municipal charges, and state subsidies. In 2009, tax revenues ac-
counted for some 47%, operating revenues for 27% and state transfers for 19%
of municipal income. Other sources of revenue include investment income,
loans and other financial income. Total municipal expenditure for 2010 was 40
billion €. The strength of local self-government derives largely from the mu-
nicipalities’ independent right to levy taxes and charge user fees. Municipali-
ties fund nearly half of their operations from their own tax revenues, which
consist of a local income tax and a real estate tax. In addition, they receive an
annual share of revenues from corporate taxes levied by the State.
Another major source of municipal revenues consists of user fees and cus-
tomer charges that account for approximately a 25% of municipal revenues.
State subsidies are the third source, albeit a minor source. In 2009, subsidies
from central government covered some 19% of all municipal revenues. State
subsidies are not earmarked and municipalities are free to determine their use.
The municipal income tax is levied at flat rates on individuals’ earned in-
come. The municipal Council sets the rate annually and in advance for the fol-
lowing year in each municipality on the basis of the municipal budget. Each
municipality decides independently on its income tax rate and no upper cap is
set. In 2009, the range of local income tax for all municipalities was 16-21% of
taxable income, which averaged out to 19.17% of all taxable income. Munici-
pal tax rates have shown considerable continuity and consistency, but recently,
there has been a steady increase. Since municipalities are required to present a
balanced annual budget, the economic pressures on municipal finances are im-
mediately reflected in tax rates.
196
The real estate tax is determined by the taxable value of each property and
by the tax rates set annually by each municipality. Although it may appear that
municipalities are free to determine these rates, in reality, the property tax has
an upper and lower limit prescribed by law. Up to now, property taxes have
remained fairly modest, and represent only 2.5% of total municipal revenues,
but there is increasing pressure to raise property taxes to finance the growing
costs of health care. Municipalities do not directly levy the corporate income
tax, but they do receive their share of the State tax revenue. This share is deter-
mined by law and is presently set at 33% of total corporate tax revenue, and
amounts to less than 3% of total municipal revenues.
Municipal tax revenues are a major contribution to municipal finances and
have recently grown at an average annual rate of 4.7%, which is lower than the
growth rate of municipal expenditures (6% annually). This disparity will eventu-
ally call for an adjustment of municipal expenditures or a tax increase, or both.
Municipalities also derive income from charges and fees for managing local
energy and water supplies. Municipalities may operate other businesses such as
public transport, sewage networks and ports. Two-thirds of municipality in-
come from charges comes from publicly owned enterprises, mainly power and
water supply, sewerage works, waste disposal, and public transport. As in the
case of local taxes, municipalities have significant power in determining the
charges for such services. Within the limits imposed by law, municipalities
may also charge for social services and health care, as well as for cultural serv-
ices. These charges have only a minor significance in funding these services.
Less than 10% of social welfare and health expenditure is covered by charges
and fees, and basic education is provided free of charge.
The third most important source of municipal income is state subsidies,
which have two basic functions. They are usually paid out, because munici-
palities have undertaken statutory services such as education, health and social
services. In this case, the grants function as financial assistance to local au-
thorities in exchange for offering services. The second function is to equalise
the differences between municipalities and to offset disparities in public service
costs thus facilitating equal access to these services. As a whole, the State trans-
fers account for less than 20% of all municipal revenues.The Ministry of Fi-
nance administers the grant system.
State subsidies for current expenditure to the municipal sector comprise:
1) General subsidy, a block grant, which is granted per capita;
2) Subsidy for social welfare and health care, which is determined on a per
capita basis and according to the age distribution of the municipality’s
population;
3) Subsidy for education and cultural affairs, which is partly determined per
capita and partly per pupil and student, or according to the scale of op-
erations;
197
olli mäenpää
4) Revenue equalisation: a supplement to tax revenue, which is granted as

general support to municipalities whose own revenues are particularly low.
Municipalities receive subsidies mainly as a compensation for expenses
arising from their statutory duties to provide health and welfare services. The
principles of the State subsidies paid to the municipal sector are laid down in
legislation. Data available from public statistics are used to determine the cal-
culatory costs of the services and, subsequently, the amount of the subsidy. The
calculatory costs are determined on the basis of the number of local residents,
age structure, number of pupils and students, geographical area, population
density, unemployment rate, archipelago location and language status.
The local differences are balanced out through the equalisation of tax reve-
nues included in the government grants system. A significant and specific fea-
ture of the revenue equalisation system is that it operates solely between the
municipalities and is also totally financed by them. If a municipality’s tax rev-
enue is below a certain threshold, it is entitled to receive the difference as sup-
plement to its general subsidy. On the other hand, the better off municipalities
whose tax revenue is above the threshold are required to pay a certain percent-
age of the exceeding amount in order to finance the equalisation. Although
considerable cuts were made in government subsidies during the recent reces-
sion, the equalisation potential of the system seems to have remained practically
intact. The balancing effect is demonstrated by an official estimate according to
which the average municipal income tax rate could, in the least favoured munici-
palities, rise quite considerably to 30% without state subsidies.
Municipalities are also supplemented out of government funds in so far as
the local authority’s own tax revenue is below the agreed equalisation limit.
The supplementary amount depends on the average amount of tax units calcu-
lated per resident for all local authorities, and the average tax rate for all local
authorities. In order to cover expenditure, municipalities may also take out
loans without restrictions in the domestic or foreign money markets. The mu-
nicipalities normally use loans only to fund investments; they do not take loans
to finance their running costs.
7.2. Municipal expenditure
Local authorities are free to use their revenues to perform their functions in
the manner they prefer, without restriction. Municipal tasks related to welfare
state services (health and welfare services, basic and vocational education)
comprise some 70% of municipal expenditures. The municipal budget, ap-
proved annually by the Council, forms the foundation for municipal finances.
At the same time, the Council approves a financial plan for at least the next
three years. The budget and the financial plan contain the municipality’s opera-
tional and financial aims. In order to ensure the preconditions for discharging
198
the municipality’s functions, the municipalities are under the obligation to draw
up plans for covering accumulated deficits. The Council decides on any chang-
es to the budget.
Municipalities have unlimited right to own assets. They may own tangible
and intangible, moveable and real estate property. Ownership is governed by
rules of private law regardless of the status of the proprietor. Thus, municipal
ownership is also regulated by private law rules. There are no special arrange-
ments for ownership in the public sector other than that municipal ownership is
not subject to taxation. Municipalities own real estate, housing and land. Ten
per cent of Finland’s housing stock is in municipal ownership. Municipalities
also own most of state-subsidized, rented housing. The annual outlay on real
estate accounts for over 10% of municipal expenditure.
Self-government denotes a qualified independence and autonomy in rela-

tionships with state authorities. More specifically, municipal self-government
encompasses the right to conduct the municipality’s own administration and
finances independently. State organs are competent to interfere only to a limit-
ed extent, and only if this is specifically provided by law. The municipality is
thus presumed to have the general power to act in local affairs. A further guar-
antee is that a state administrative authority can never suspend or dismiss elect-
ed representatives or to dissolve an elected local organ. The scope of govern-
mental supervision is outlined in Section 8 of the Municipal Act. Pursuant to
that Section, the Ministry of Finance is charged with two tasks. First, it has both
the duty and the power to supervise the functioning and economic situation of
the municipalities. Second, it oversees that the requirements of municipal au-
tonomy are duly taken into account in the drafting of legislation concerning the
municipalities.
Under the same Section, the Regional State Office has the power to ascertain
that a given municipality has acted in accordance with the Law. The Regional
State Office may exercise this supervisory power only in cases where a formal
complaint has been made that challenges the lawfulness of a municipal action or
non-action. Such a complaint can be made by anyone, but it does not initiate
judicial review. The Regional State Office, acting on the basis of an administra-
tive complaint, has no power to suspend, amend or annul a measure taken by the
municipality; it can only reproach the municipality if it has acted unlawfully.
It is clear that the Regional State Office has no general competence to inter-
vene in the administration of municipal affairs, nor does its supervision extend
199
olli mäenpää
to issues of expediency. Only in cases of manifestly illegal action or clear ne-

glect to carry out statutory functions, the State Office has the competence to
issue an injunction either obliging the municipality to abstain from a certain
kind of unlawful activity or ordering it to accomplish something required by
law. In both cases, the obligation must be defined in detail and a conditional
fine may be imposed to back up the obligation and to ensure compliance.
The control of legality of the municipal action is mainly exercised by the
administrative courts in individual cases. Judicial proceedings against the ac-
tion of a municipality can be initiated by the actual parties. In addition, any
municipal resident has standing in cases concerning the exercise of the general
competence of the municipality. In some more specified areas of public regula-
tion, such as land use planning and environmental protection, also a regional
state authority may challenge the legality of a municipality’s decisions pursuant
to an express provision providing standing. If the legality of a municipal deci-
sion is brought under judicial review, its execution is automatically suspended.
However, the administrative court may permit the execution. No administrative
authority has the power to suspend the execution or enforcement of a decision,
plan, action or other measure that has been adopted by a municipal authority.
The jurisdiction of the Parliamentary Ombudsman and the Chancellor of
Justice embraces all exercise of public power and public functions regardless of
the subject area or the level of public administration. Thus, also the functioning
of the municipalities and the provision of services by them falls under the Om-
budsman’s supervisory powers. The Ombudsman, however, lacks the power to
give relief in a concrete case to an aggrieved individual/party other than by
finding that an official or an authority has acted in a manner that contravenes
the law. In such a case a criminal charge may be filed, a reprimand or rebuke
may be issued or a recommendation may be given.
Finland has no constitutional court and laws as such are neither appealable
nor justiciable in abstracto. Therefore, and contrary to other European coun-
tries, there is no specific constitutional appeal or procedure designed to chal-
lenge an Act of Parliament, if the act is thought to be in contradiction with the
general principles of local autonomy laid down by article 121 of the Finnish
Constitution (See, supra, point 3).
Both civil and administrative courts, however, have the power to analyse the
constitutionality of legislation enacted by the Parliament, if this legislation is to
be applied in an actual case. If they find that a statute or a provision thereof is in
evident conflict with the Constitution, the courts may decide not to apply the
suspect legal provision in that specific case, but they lack the power to set aside
the said provision. Also, a specific feature of the Finnish legal system is the con-
200
stitutional supervision exercised by the Constitutional Committee of Parliament.

All major government bills may be analysed by the Committee, which decides on
their constitutionality before they eventually become binding statutes.
On the other hand, a municipality can challenge any administrative decision
through an administrative appeal. Accordingly, the municipalities have re-
course to administrative courts whenever an administrative decision is directed
to them, insofar as it affects their rights or obligations. Finally, any citizen can
challenge an administrative decision through an appeal process and claim that
the decision is based on a provision of law that is incompatible with the Consti-
tution or an international convention such as the European Charter of Local
Self-Government.
Finnish municipalities are represented by a delegation to the EU’s Commit-

tee of the Regions.3 The members of the delegation are municipal councilors
and members of the legislative assembly of the autonomous Åland province.
On the other hand, the Association of Finnish Municipalities represents their
interests in EU policy making. The provinces (joint municipal authorities) are
also involved in developing EU regional policy and drawing up programmes to
obtain support from EU structural funds for their own area.
12.1. Landmark cases and decisions
The Constitutional Law Committee of the Parliament has issued a number

of significant non-judicial interpretations about municipal self-government.
Some of the main statements include the following:
– The state administration has only limited powers to steer the municipali-
ties and the steering may only concern the statutory tasks of the munici-
palities (Statements 46/2010 and 14/1999).
– Since the grounds of individual rights and obligations must be determined
by law, the municipalities lack the rule-making power to determine them
independently of legislation (3/2000).
3
The Finnish delegation in the Committee of the Regions is composed of nine full members
and nine alternate members. All the full members are representatives of local government: four
members of city councils, one chairman of city council, three members of local executive boards
and one representative from a province. Source: Committee of the Regions Website: http://www.
cor.europa.eu.
201
olli mäenpää
– Municipalities are under the obligation to guarantee the operation of basic

constitutional rights and human rights (9/2000)
– Local authorities must be able to exercise their constitutional right to
levy taxes so as to provide a real financial basis for their functions
(41/2002).
– Municipal cooperation may not jeopardize the decision-making powers of
a participating municipality by necessitating extensive delegation of pow-
ers (65/2002)
(A) Handbooks
Hannus, A.; Hallberg, P. & Niemi, A.: The Municipal Act. Helsinki 2009. (In
Finnish)
Harjula, H. & Prättälä, K.: Municipal Law – Background and Interpreta-
tions. Helsinki 2007. (in Finnish)
Heuru, K.; Mennola, E. & Ryynänen, A.: The Municipality. The Basics of
Municipal Autonomy. Tampere 2008. (In Finnish)
Moisio, A.; Loikkanen, H. & Oulasvirta, L.: Public services at the local level
– The Finnish Way. Government Institute for Economic Research. Helsinki
2010.
Mäenpää, O.: Les autorités locales en Finlande. Delcamp, A. & Loughlin, J.
(eds.), La décentralisation dans les États de l’Union européenne. Paris 2002,
137-151.
(B) Periodicals
Lakimies (The Lawyer)

Hallinnon Tutkimus (Administrative Studies Journal)
Association of Finnish Local and Regional Authorities: www.localfinland.fi

Local government employers: www.kuntatyonantajat.fi/en/Pages/default.aspx
Ministry of Finance, Department for Municipal Affairs: www.vm.fi/vm/en/15_
municipal_affairs/index.jsp
Autonomy of the Åland Islands: www.government.ax
202
Chapter 9:
LOCAL GOVERNMENT IN FRANCE
Robert HERTZOG
The 2003 revision of the French Constitution1 added to article 1, which defines
the Characters of the Republic, the following sentence: «It shall be organised on a
decentralised basis». Decentralisation («décentralisation») has been the French
political concept for local self-government since the 19th century. Today, the French
model is the product of a long history and not of some precise doctrine. In the feu-
dal monarchy, each province had its own legal status and the territorial power was
in the hands of landlords, the Catholic Church and the agents of the king. Some
cities, gratified by special liberties, were ruled by an oligarchic government.
Immediately after the 1789 Revolution abolished this system2, the National
Assembly decided on a new territorial organisation that has shaped France until
today. An Act of 22/12/1789 created the municipalities (communes in French)
and «departments» (départements) with an identical status all over the country.
Each parish - more than 40,0003 around the country - could become a munici-
pality with elected organs and a public status. The «department» was designed
to be the level for performing general State administration by elected authori-
ties under the control of ministries. But times were troubled and a new order
was established by Napoleon Bonaparte’s government by the law of 17/2/1800
«concerning the division of the territory of the Republic and the administra-
tion». It was called «the administrative constitution of France» because its main
provisions and general logic remained in force for nearly two centuries. It cre-
ated the préfet, the general administrator of the department, and a deliberative
1
See the text of the French Constitution (also in English) at: www.legifrance.gouv.fr
2
The Declaration of human rights and civil liberties (26/8/1789) is still part of the consti-
tution.
3
At that time, France was the most populated country in Europe, with about 25 million in-
habitants.
203
robert hertzog
assembly, the conseil général4; but all authorities were appointed by the central
government or its representatives.
Decentralisation progressed by strengthening elected assemblies and creat-
ing a political awareness of municipal and departmental communities. An 1833
Act decided that municipal and departmental councils should be elected. De-
partments suffered a legal transformation by law of 10/5/1838, which created
its dual nature: on the one hand, departments were characterised as districts for
State administrations; and, on the other hand, local self-government units, in
both cases under the authority of the préfet. The law of 10/8/1871 extended the
powers of its assembly. So did the «great municipal law» of 5/4/1884 for mu-
nicipalities, as their council was granted the power «to decide on all municipal
affairs». This was interpreted by the Administrative Court as a general clause
of competence, allowing the councils to act in any domain of local interest.
The 1946 Constitution had a special section on local self-government that
announced important reforms … which were never performed. Likewise, the
1958 Constitution recognized municipalities (communes) and departments (dé-
partements) as collectivités territoriales with a guarantee of autonomous ad-
ministration by elected councils (art. 72). A law of 31st December 1970 ex-
tended the «municipal liberties», reduced the control by the préfets, especially
on budgets, and modernised the management rules. Later, an Act of 16 July
1971 expressed a national strategy to reduce dramatically the number of mu-
nicipalities. In spite of supplementary grants for amalgamation, the number of
local entities was only reduced from 38600 to 36600 (several merged munici-
palities divorced afterwards!). This failure had a long lasting impact. It showed
that a systematic process of amalgamation was impossible in France because a
majority of politicians and citizens opposed it.
Special attention must be given to the «big bang» reform of 1982. In May
and June 1981, a socialist President of the Republic and a socialist majority at
the National Assembly were elected for the first time since the foundation of
the 5th Republic in 1958. The central cabinet, run by men with long experience
in local administration, decided to widen the decentralization reform that had
being discussed in Parliament since 1978. Despite a strong opposition of the
Senate, the Act of 2/3/1982 «on the rights and liberties of the municipalities
(communes), departments and regions» enforced dramatic changes. It was fol-
lowed by tens of special statutes and hundreds of decrees, rapidly accepted by
all political parties and implemented with a real consensus. The most symbolic
and decisive innovation was to transfer the executive powers in the department
and the region from the prefect to the president of the said department and re-
gion, who would be elected by the assembly. This needed to separate the serv-
ices of the préfecture (the prefect office) between those staying under the au-
thority of the prefect and assuming State powers and those placed under the
4
General council: because it had competence for all administrative matters(!).
204
local government in france
authority of the President of the department or region. It was done rather

smoothly by contract, some questions being yet brought to the administrative
Courts. Therefore, two separate administrations work side by side in the territo-
rial division called «department» or «region». This can be confusing, even for
French citizens, and people may consider, by mistake, that the «Napoleonic
model» is still alive. The control was deeply modified as will be explained later.
Other statutes, since 1983, transferred competences, services and equipment
from State administrations to departments and regions. This extended the budg-
ets, as new compensation resources were allocated.
Decentralisation expanded also by addition of new institutions. Single pur-
pose inter-municipal cooperation entities were allowed in 1890; in 1959 a new
model of «multi-purpose municipal unions» was introduced. Successive stat-
utes (1967, 1992, and 1999) established inter-municipal communities with their
own fiscal power and strong competences.
As for Regions, they were first created as State districts in 1959 for a better
coordination of national policies. In 1969, a project for autonomous regions was
rejected by referendum and caused the dismissal of President de Gaulle. Legal
entities with just small financial competences, established in 1972, became territo-
rial communities in two steps, 1982 (grant of general competence and establish-
ment of a political executive) and 1986 (inception of elected assemblies). Com-
munities and regions were meant to compensate the small size of communes and
departments.5 These new tiers with a more pertinent size brought economy of
scale in the considered competences, but also new costs and budget expansion.
Nowadays, the financial crisis obliges to slower public expenses and there is a
new trend for amalgamation. Therefore, the Act of 16/12/2010, on the reform of
local government, includes provisions to facilitate the merger process at each lev-
el of government, and between a region and its departments, in order to simplify
the local self-government organisation and make it more cost-effective. However,
this needs consensus of the politicians, who don’t show much enthusiasm!
Political doctrines had some influence at given periods, but there is no steady
relation between political parties and the shape of local self-government. Right
and left have been centralists or decentralists, depending on the context. There are
so many stakes when deciding on territorial organisation that there is never a
spontaneous consensus inside any party. Laws are the outcome of rough bargain-
ing and the final compromise is remote from any model somebody had in mind.6
It is important to note that each level of local self-government has developed
at a different pace. The municipal power has roots in ancient times and was
continuously strengthened since 1789. Departments, created the same year,
5
A possible reduction in the number of departments by about a half is discussed since the
1940’s.
6
Tens of Reports in Parliament or by committees commissioned by the central government
on general or specific questions, had diverse influence on the decisions that were finally adopted.
205
robert hertzog
were only partially decentralised until 1982. Regions have full political and
administrative autonomy only since 1986. So, local self-government was syno-
nym of municipal autonomy and the «commune» (the municipality) was a rev-
olutionary myth opposed to State power in 1791-1793, 1848 and 1871. Most
municipalities are indeed weak because of modest human resources and finan-
cial dependency from the State. Furthermore, different attempts for amalgama-
tion failed all along history (in 1795, 1942, 1947 and 1971). However, a total
figure of 36,791 mayors and 519,417 councillors are an extremely influential
political group. The paradox is that local self-government has been more devel-
oped on its political side than in the legal provisions.
For what concerns hot current issues, it can be said that French local govern-
ments are not hit too violently by the general crisis, thanks to protective mecha-
nisms. However, their situation becomes more and more tense, especially in
departments which have no flexible resources and rising social expenses. There
are two major challenges for the next years. The first one is to restructure the
local system in order to reduce its cost, thanks to amalgamations and new coop-
eration; this needs also an action on better distribution of competences between
the different territorial tiers; but one can be skeptical on this issue as there are
solid oppositions. The second one is to reshape the resources. Tax reform has
already been done but is very unsatisfying. Updating the assets appraisals for
property tax purposes would be a progress. There is not much hope that the
State can raise the grants, so government and Parliament are trying to make
them more equitable by complying with the request of art. 72-2 of the Constitu-
tion: «Equalization mechanisms intended to promote equality between territo-
rial communities shall be provided for by statute.» Spring 2014 will be a critical
moment as there will be elections in all tiers of local self-government.
Municipalities (Communes), departments and regions have the same constitu-

tional status of local self-government. Municipalities and inter-municipal entities,
now called the communal sector, represent more than 55% of the total expenses
of local government, while departments amount to 32% and regions to 13%. The
territorial organisation of government is, in the typically French model invented
in the 19th century, divided into deconcentrated and decentralized bodies.
(1) The first ones are State services locally headed by a prefect, who is ap-
pointed by a decree of the President and represents the authority of the
State and the ministers. These services have been the effective instru-
ments of centralisation, i.e. direct management of local affairs by State
institutions. Their drastic transformation is the interface of the decen-
tralisation revolution started in 1982, which was a shift of power from
deconcentrated State administrations to local authorities. They are in a
slimming process and concentrating at the regional level.
206
(2) The second ones (decentralised bodies) are legal entities with elected
assemblies and executives bodies. They have their own competences,
properties, budget, resources and employees. Their existence and au-
tonomy are guaranteed by the constitution and protected by the Courts.
The following table shows the different sorts of both types of governmental
bodies in France and their key institutional features:789
Local self-government State administration
Decentralized administrative bodies Deconcentrated governmental bodies

Autonomous legal entities State employees in a hierarchical organisa-
No hierarchy tion, under the authority of ministries
36,791 Municipalities (communes) The Mayor has some competences as State
The elected assembly (6 year-term) elects the authority (civil register, organisation of elec-
mayor and the deputy mayors tions…)
Inter-municipal cooperation entities No State representation at that level
– 2,599 Communities (of 3 kinds)
– 15,099 Technical Unions (Syndicats)
101 Departments (5 of them, overseas8) Prefecture and directorates under the authori-
– Elected assembly ty of a prefect appointed by decree and chief
– President of (nearly) all State services
4,039 Cantons: districts for the election of 342 Arrondissements: small state services in
councillors in the department assembly9 the sous-préfecture under authority of a sub-
prefect acting by delegation of the prefect
26 Regions (21 + Corsica + 4 overseas: Réun- Prefecture of region and directorates under
ion, Martinique, Guadeloupe and Guyana). the authority of the Prefect of region, who has
They have: also authority in many domains on prefects of
– Elected council departments
– President elected by that assembly
– Advisory Council on economic and social
affairs, non-elected members
The most characteristic feature is the fragmentation of the municipal sys-

tem, with a big proportion of very small municipalities: 14,351 have less than
300 inhabitants and totalise less than 2,3 millions inhabitants; 20,233 munici-
palities have less than 500 inhabitants; 27,200 municipalities, less than 1,000
inhabitants; only 886 such bodies totalize more than 10,000 inhabitants; 39
have more than 100,000 inhabitants. Yet they have nearly the same status. This
7
Data as of 1/1/2011.
8
In each overseas region there is also a department; to these 4 was added on 1/1/2011 Mayo-
tte, an island near Madagascar, which had a special status but decided by referendum to become
a department.
9
Large cities are divided in several cantons; in rural cantons exist often two State services,
a gendarmerie group and a tax and treasury office.
207
robert hertzog
fragmentation needed consolidation that was researched by inter-municipal co-

operation.
Inter-municipal communities embrace 35,041 municipalities, with a total of
58, 8 millions inhabitants. Their number will be reduced in 2011-2012 by the
amalgamation of those considered as being too small or with inadequate bound-
aries. Likewise, Inter-municipal unions (syndicats) are in charge of specific
matters. 10,473 of them are «single purpose» entities; 1,358 are «multi-pur-
pose» ones. 3,268 «syndicats mixtes» unite communes and other public per-
sons: departments, regions, chambers of commerce, etc. The number of unions
will also be reduced by merging as many as possible with communities; but the
optimal perimeter for a given service is often not coherent with the boundaries
of a community, so superimpositions will prevail.10
Local government has traditionally been a matter of Law and political doc-
trine, studied in Law schools within the regular courses on Administrative Law.
Customary principles were repeated without much legal support. For example,
the uniformity of statutes and the principle of equal rules for all entities in a
given category (municipalities, departments) was for long time a reality that is
today totally out-dated. A comprehensive constitutional theory was built when
the constitutional Court (Conseil constitutionnel) developed a steady case law
on this subject, since the beginning of the 1980’s, when important reforms pro-
voked political struggle and frequent appeals. In addition, subsequent modifi-
cations of the Constitution, in 2003 and 2008, have considerably extended its
provisions on local self-government.
The prime legal basis is still the 1958 Constitution. Some of its provisions
are completed by «organic statutes» (Lois organiques) that have to be respected
by ordinary statutes.11 The Constitution contains Title XII (art. 72 to 75-1)
called «on territorial communities» (collectivités territoriales). Other articles
contain also provisions related with local and regional authorities. This consti-
tutional status, as well as the legal provisions contained in the Code of Local
Government (see below) provide common principles and rules for regions, de-
partments and municipalities (communes). All are considered as being of the
same nature, without hierarchy among themselves and no difference in their
type of powers.12
10
The generic name of communities and unions in French is: établissements publics de
coopération intercommunale, EPCI.
11
On financial autonomy, organisation of referendum in local government and the possibil-
ity of experimentation of new models of organisation or procedures.
12
Regions have no legislative power and few regulatory competences, when municipalities
have important ones for town planning or security.
208
Art. 34 of the French Constitution has had a central role in the constitu-
tional case law, as it says that law shall fix up the «basic principles of … the
self-government (libre administration) of territorial communities, their powers
and revenue». The Constitutional Court has interpreted that key provision as
meaning that all important rules on local authorities must be passed by Parlia-
ment, in which «the Senate shall ensure the representation of the territorial
communities of the Republic.» (Art. 24) Senators are elected by local govern-
ments.13 Moreover, «bills primarily dealing with the organization of territorial
communities shall be tabled first in the Senate» (art. 39). As a huge majority of
members of Parliament are or have been elected in local government, this is a
very strong guarantee for the local interests. The local and regional authorities
associations often write amendments that are presented by members of Parlia-
ment with a great probability of adoption.
Likewise, art. 72 of the Constitution contains a list of autonomous local and
regional communities (municipalities, departments and, since 2003, regions)
and allows the creation of new categories by statute. They have elected councils
and are granted the right of free administration («libre administration») in the
limits of the Law. No local government has authority over another one (regions
over departments, for example). The State representative has the right (and, ac-
cording to the Constitutional and Administrative Courts, even the obligation) to
control the legality of the decisions taken by local and regional authorities. Art.
72-2 provides for financial autonomy for local and regional authorities, and the
principle of fiscal equalization and compensation if new tasks are delegated by
State. The Constitution has also provisions on the right of petition for having a
question discussed in a local council and use of referendum; these procedures
are not often used in fact.
Moreover, long constitutional articles give precise rules for overseas public
units with different levels of autonomy and special legislation, which creates a
unique system. The regime of New Caledonia and Polynesia looks like soft
federalism. They have a ‘cabinet’ and an assembly with quasi legislative pow-
ers on certain matters.
Free administration («libre administration»), as mentioned at articles 34
and 72, is the key constitutional concept of local autonomy. This concept has
allowed the Constitutional Court to produce a creative case law. Its positions
are rather balanced, but it is not considered as being very audacious in favour
of decentralisation. Its voluminous case law becomes even sharper since new
(2009) procedures allow a litigant in any ordinary suit to claim that a law vio-
lates the constitution and should therefore be examined by the Constitutional
Court in order to appreciate the conformity of its rules (the «constitutionality
question», question de constitutionalité). This possibility has already been used
13
The Senate is elected by indirect election: the greatest number of voters are delegates from
municipalities, either members of local councils or citizens designated by it.
209
robert hertzog
by many local governments, several times with success, to contest laws that
were in force since a long time.
On the other hand, France has a specialized administrative jurisdiction14 that
had traditionally the monopole of the regulation of governmental bodies and
agencies in their relations with the citizens and in the relations between them-
selves. Citizens and the préfet can sue any administrative decision and even con-
tracts issued by local and regional authorities in the Administrative Courts. Local
and regional authorities can also challenge any decision taken by State authorities
or other local bodies, either individual adjudications or regulations, including
decrees of the President, the Prime minister or the préfet. Combined with the pos-
sibility to have access to the Constitutional court, these should be deemed as suf-
ficient judicial protections. The Conseil d’Etat has a balanced case law. On the
basis of an ambiguous provision in the Municipal Act of 1884, it recognised mu-
nicipalities a general clause of competence to act autonomously in all matters of
local interest, as far as there is no legal prohibition or explicit power given to
another authority. But courts pay attention to preserve the core power of the cen-
tral government, in the logic of a unitarian State and legal system.
The European Charter of local self-government (ECLSG), a Treaty con-
cluded within the Council of Europe, contains principles that bind the Parlia-
ment and the central cabinet, since art. 55 of the French Constitution specifies
that treaties duly ratified shall, upon publication, prevail over Acts of Parlia-
ment. France participated actively at the preparation of the Charter and was one
of the few states who signed it immediately on 15/10/1985. However, ratifica-
tion, authorized by a law of 10/7/2006, became effective only on 1/5/2007.
Decentralization was much ahead of the requirements of the Charter since the
reforms of 1982, but there were some minor legal objections and the ministries
were not eager to accept a monitoring by the Strasbourg institutions. The legal
impact of the Charter is marginal. The idea of subsidiarity, that was new in
France, had been included in art. 72 of the Constitution in 2003.
As for domestic legislation, the main provisions on local self-government
are consolidated in the Code général des collectivités territoriales (CGCT), one
of more than 50 codes in which laws and decrees are organised in articles
grouped in chapters with logical topics. Codes are very useful in matters where
plenty of rules change constantly. The CGCT is divided in 6 parts: General
provisions, common to all local authorities; Rules for municipalities (com-
munes), Departments and Regions; Local cooperation (inter-municipal coop-
eration, but also between regions or departments); overseas communities with
special statute. More provisions are included in sectoral codes like the Tax
code, codes of the Financial jurisdiction, Education, Transports, Urban plan-
ning, Housing, Public properties, etc.
14
42 Administrative courts; 8 administrative courts of appeal; at the top the Conseil d’Etat,
created in 1799, which has many different competences.
210

AUTHORITIES
4.1. Some general remarks
Local and regional authorities are considered to be administrative authori-

ties, whose unilateral decisions can be contested in the administrative courts.
Most deliberations of the assemblies are considered as regulatory acts15: the
creation of a public service; the vote on the budget, fees or tax rates, list of the
job positions, the regime of bonus for employees, etc. Decisions taken by the
executive bodies, that is, the mayor or president, are rather «individual» ones:
concerning employees, citizens, private corporations, etc. The contracts are, as
a rule, subject to Administrative law, and local authorities have to follow the
Code of Public Procurement, which is the same for the State. If any local or
regional authority needs land or real estate for a project of public interest, it can
launch a procedure of expropriation. Municipalities can also decide to pre-empt
a property that is involved in a selling process. However, local authorities have
no direct possibility to create or decide on administrative penalties or sanctions.
Although the Constitution says that local communities «shall have power to
make regulations for matters coming within their jurisdiction» (art. 72), in real-
ity they have few normative powers, i.e. the capacity to issue general compul-
sory rules that have to be respected by a large group of persons. Concerning
their own competences, they can issue complementary provisions to national
rules: on the regime of the grants they allocate, on the aids to private firms, on
social assistance (in the case of departments), etc. In only two domains strong
normative power is delegated to local communities: town planning is a compe-
tence of municipalities, often transferred to inter-administrative «communi-
ties» (see below, on cooperation). Moreover, «administrative police» is the
power of the mayor to issue regulations on safety: traffic, dangerous places
(lakes and rivers), sanitary measures, protection against fire, natural emergen-
cies, environmental management (water protection, noise reduction), etc.
Periodic transfer of competences from the State to regions and depart-
ments16 has been a major form of decentralization since 1983. The last impor-
tant one was accomplished by a 2004 act which transferred costly tasks17 to
departments (social assistance, administrative employees of secondary schools,
national roads and the personnel in charge of their maintenance) and to regions
(non-teaching personnel of second level secondary, regional railways, cultural
15
The main consequences of the distinction regulatory/individual acts are in the jurisdic-
tional procedures or in the possibilities of modification and annulation.
16
Detailed information can be found in the Reports of the «Observatoire des finances lo-
cales» (see bibliography). Municipalities, too diverse to support general transfers, had options for
certain ones, monuments or airports.
17
Department budgets rose from 43 billion € in 2003 to 68,5 in 2009.
211
robert hertzog
monuments and a list of minor matters). In 2003, the principle of compensa-

tion was included in the Constitution: whenever powers are decentralized from
the central government to the territorial communities, revenue equivalent to
the resources necessary to discharge those powers shall be transferred (art. 72-
2). Compensation must be full and immediate. A national Committee is in
charge of evaluating the due amount to be transferred. The Constitution says
also that whenever the effect of newly created or extended powers is to in-
crease the expenditure to be borne by territorial communities, revenue as de-
termined by statute shall be allocated to the said communities. The Constitu-
tional Court has decided that if the sum of taxes allocated for compensation
regresses beneath the compensatory amount, a statute must create additional
revenue.
Once competences are transferred, there is a strong pressure on local gov-
ernments, since they will have to spend promptly more money. Thus, there
were constant complaints that the compensation was not fair and frequent com-
promises triggered additional State support.18 On several issues, departments
went to the administrative and Constitutional Courts, with various results.
Another important point is the privatisation of competences. Local authori-
ties normally manage directly the services that express their competences, and
can do that also in social affairs or for commercial activities in the form of so
called régies. But there is considerable use of private or commercial law enti-
ties, especially by municipalities, often called «satellites». Associations or
commercial societies, with direct or indirect participation of local communities,
intervene in a wide range of activities, especially public utilities, music festi-
vals, commercial districts, urbanisation, etc. Numerous private companies act-
ing by «delegation of public services», on the basis of different contracts, have
a dominant place in water distribution, sewage, waste, transportation, heating,
managing fairs or industrial districts, etc.
The content of local authorities’ competences is another matter for conten-
tion. There is a long lasting debate on the irrationality and obscurity of compe-
tence distribution between national and local administrations and between these
ones.19 This question was discussed by the Balladur Committee in 2009,20
whose diagnostic was that one cannot simplify the distribution of competences
18
Marc Laffineur, Augustin Bonrepaux: Rapport d’information sur les transferts de compé-
tences de l’Etat aux collectivités territoriales et leur financement, Ass. Nat. N° 3523, 14/12/2006
19
Cour des Comptes: La conduite par l’Etat de la décentralisation, 10/2009, 176 p. Jean-
Luc Warsmann Rapport d’information sur la clarification des compétences des collectivités ter-
ritoriales, Ass. Nat. N° 1153, 8/10/2008.
20
The «Committee for a reform of local government», chaired by former Prime Minister
Edouard Balladur, proposed in his Report ‘Time to decide’ to President Sarkozy (3 March 2009,
Journal Officiel 6 March, on legifrance.gouv.fr) major modifications of the whole local govern-
ments, considering that it was out-dated in many aspects and had structural defects. It prepared
and inspired the law of 16/12/2010.
212
without reducing the number of tiers. It considered also that the general clause
of competence, given jointly to municipalities, departments and regions, gener-
ates overlapping of actions and costly competition between local governments.
Therefore, a draft presented by the central government in October 2009 pro-
posed to specialize departments and regions by allowing intervention only
when the law explicitly would authorize it. The Parliament did not accept this
strict position. Finally, the Act of 16/12/2010 states the principle of specializa-
tion but adds so many exceptions that the situation will be really intricate in the
future. The law allows also the delegation of competences between local gov-
ernments, something that can bring a lot of complications. The region should
establish with its departments a multi-annual plan, specifying their respective
competences.
4.2. The functions of the various local and regional authorities
As noted supra, municipalities (communes) benefit from a «general clause

of competence». Consequently, they may intervene in a wide and diverse range
of matters, as long as these will be considered to be of local interest by the
courts. Under this clause, local governments have created services and infra-
structures in domains such as sport, culture, environment, economic develop-
ment, cooperation with foreign local authorities, transport (airport or port), etc.
The Municipal Council is in charge of land-use planning and urban planning,
which is often delegated to inter-governmental structures for cooperation (see
below).
Therefore, municipalities are responsible for the construction and mainte-
nance of kindergarten and primary schools. They decide the construction and
functioning of sport facilities and cultural services (music school, museum, and
theatre) as well as of roads, parking areas, public gardens, public utilities like
water distribution, waste collection and disposal, heating plants, bus or tram
transport, though these services are often in hands of cooperation bodies or
delegated to private companies. Fire protection is a traditional function with
volunteer firemen in small municipalities, but this service, becoming more pro-
fessional, is mainly organised on an inter-municipal and departmental level.
Municipal police employees have limited powers. They can impose fines in
fields such as traffic violations, supervision of rural areas and environment
regulations. Municipal social services have competence concerning the elderly,
nurseries, and the poor. Social housing can be another municipal responsibility.
All these services can be transferred to cooperation bodies like «unions» or
«communities» (see below).
The Mayor, in his dual function as a State authority, has delegated compe-
tences for keeping the civil register of births, deaths and marriages, voter regis-
ters, organizing elections, etc. In this sense, different formalities can be per-
formed at the City Hall desk: passport, I.D. cards, etc.
213
robert hertzog
For what concerns the departments (départements), they act in a variety of

fields. The most important is social assistance, including the protection of chil-
dren, assistance for the handicapped and elderly people, and social integration.
Department are also in charge of non-teaching personnel and middle schools
(collèges); roads, including most «national roads»; school bus; local develop-
ment; bus transportation in rural areas; water protection; public archives, etc.
Departments support inter-municipal associations in varied domains. They of-
fer grants to municipalities and the said associations for investment. Finally,
they run several programs in domains such as culture, museums, libraries, his-
torical buildings, etc.
Finally, regions have traditionally had a leading role in economic develop-
ment, especially for delivering direct aids and subsidies to private companies.
This leadership, though, is hardly accepted by other local governments. Regions
competences can better be seen in their expenditures. On a Total of 26, 5 bil-
lion€ in 2010, the first line is education with nearly 7 billion€ for upper second-
ary schools; professional training takes 5, 3 billion€. They support universities
and research centres. Regional train lines have also been transferred to regions.
They pay the equipment and support part of the deficit, but trains are run by the
national SNCF Company, on the basis of contracts. Thanks to the general com-
petence clause, there is multi-directional support for culture (museums, operas,
libraries) and art, sport, environment (regional parks and preservation areas, en-
ergy saving, water protection). Some regions own an airport, canals and river
ports, etc. They are very active in trans-border and international cooperation.
5.1. The municipalities (communes)
Municipalities are extremely diverse. They have a common status, but with
more and more technical differences (elections, budget structure, modalities of
grants, human resources management, salaries and staff positions…). Paris is
unique as it is at the same time a municipality and a department. Its Council and
Mayor have competences in both legal capacities. Security and the police are
under the authority of a prefect of police, depending directly on the ministry of
Interior. Like Lyon and Marseille, Paris is divided in communes d’arrondissement
(a kind of «district» or section) which have their own council and mayor, staff
and budget for current administrative, social, cultural and educational matters.
The deliberative organ of municipalities is the Municipal Council. Council-
lors, in number of 9 (for entities under 100 inhabitants) to 69 (over 300,000
inhabitants) are elected for six years (last time in March 2008) by the registered
voters. In municipalities with less than 3,500 inhabitants, candidates can run as
part of a list; voting for candidates on different lists or deleting names is al-
lowed, and votes are counted for each candidate. During the first round, candi-
214
dates who get more than 50% of votes, representing more than 25% of the
people registered on the electoral list, are elected. At the second round, a rela-
tive majority is sufficient to be elected. In municipalities having more than
3,500 inhabitants, full lists are compulsory and voters cannot change them.
During the first round, the list that gets more than 50% of votes gets immedi-
ately the majority of the Municipal Council. The remaining seats are propor-
tionally shared among all the lists which got more than 5% of votes, including
the winning one. If no list gets an absolute majority, there is a second round
among the lists which got more than 10% of votes. During the second round,
the list which gets the majority of votes wins the majority of seats, the remain-
ing seats being shared as said above.
This situation can be assessed as a good compromise, for there is always a
solid majority in the Council and the Mayor has a strong support and authority.
Minorities have also a representation. A central government decree can break
up the Council when a chaotic situation prevents it to fulfil its duties, and new
elections must be held in short delay. Municipal councillors are considered as
volunteers and therefore do not get a salary. However, they can be financially
compensated for extra expenditures linked to their duty. Towns can establish a
general allowance that can be consistent (up to about 1000 € per month). Coun-
cillors have different rights: for training, protection against attacks, absence in
job, etc. A long lasting debate on «professional status» for local politicians is
blocked by ideological considerations and financial difficulties.
The Municipal Council gathers at least four times a year and at any time the
mayor so requests. Meetings are public, unless the Council decides otherwise.
The Mayor is responsible for setting the agenda of main points which will be
discussed in the meeting. The municipal council is responsible for the adoption
of the budget, the rate of taxes and fees, the guidelines of the different policies,
the town planning rules, for deciding the job positions for employees, the crea-
tion, organisation and management process of services and equipment, author-
ising the Mayor for signing contracts, including loans, etc.
The executive municipal body is formed by the Mayor and several deputy
mayors. The election of the Mayor happens in the week following the election of
the council. He is generally the leader of a solid majority. Deputy Mayors are
elected on proposal of the Mayor. Their number cannot exceed 30% of the number
of councillors. They are, of course, political friends or allies of the Mayor, their
powers are those delegated by the Mayor, and he can take them away at any mo-
ment. Mayor and deputy mayors cannot be dismissed by the Council but under
specific conditions he can be dismissed by the central government. The Mayor is
responsible for the preparation and implementation of the decisions of the Council,
which can delegate to him part of its powers. Furthermore, he represents the State
and therefore carries out some State delegated responsibilities, as mentioned su-
pra. The Mayor has also his own competences, which are not shared with assem-
bly: he has regulatory power in matters of security, traffic, health, environment;
215
robert hertzog
delivering of construction permits, etc. He organises the services of the City Hall
and is the chief of all employees who are appointed by him, generally after a com-
petitive exam when a position has been published as vacant. The mayor and depu-
ties are not considered as professionals, but get a gratuity that is proportional to the
population of the municipalities. In big ones, the position of Mayor is, in fact, a
full-time job and his holder has often another political mandate in inter-municipal
cooperation bodies, other local government or even in Parliament.
Inter-municipal cooperation (IMC) bodies: an alternative for

5.2.
amalgamation
The great number and variety of inter-municipal cooperation (IMC) bodies is

another key feature of the French system. They are a necessity considering the
situation of the municipalities. France is now covered with IMC bodies, most of
them running well. But they are too numerous and often too small; they compli-
cate the architecture of the municipal sector and have high costs. The objective
is to amalgamate them, reduce their number and create more powerful ones.
5.2.1. The first step of IMC: technical unions
The first legal frame to be considered here is the Act of 22/3/1890, which set
up a model of municipal union called syndicat in French. It has legal personal-
ity and can assume a public function in place of municipalities. Its creation
needs unanimity. Multi-purpose municipal unions, allowed in 1959, were a de-
cisive progress. Afterwards, the law permitted their creation by a special major-
ity: 1/2 of the municipalities and 2/3 of population, or the reverse. Thousands
of unions were created in the 1960’s-1970, when France had a booming econo-
my, fast growing metropolitan areas and a national policy for the modernisation
of public services. These «pipe unions» (water supply, garbage collection, elec-
tricity or gasworks, urban transport) look much like public companies though
municipal law basically applies. Many have no own staff, the tasks being ful-
filled, on the basis of a contract, by the employees of one municipality, or the
services being delegated to a private contractor.
As for the procedure to create these bodies, it starts with the publication by the
prefect of a list of municipalities that will be consulted on a project to create a
certain type of union. In fact, the prefect holds informal preliminary discussions to
build consensus or to react to the proposal of a group of municipalities. If unanim-
ity (generally) or a qualified majority of municipal councils approves the project,
then the prefect issues a decree that creates formally the union, and defines its by-
laws. The union is a legal entity. Its assembly is composed by delegates elected by
each municipal assembly (normally 2). The syndicat de communes elects a presi-
dent and vice-presidents, who have executive power. The resources of the budget
216
are the fees paid by the users of the services, contributions paid by the municipali-
ties in pursuance of criteria that are in the by-laws (number of inhabitants, of pupils
in schools, length of the roads, fiscal capacity of each participating municipality,
etc.). It receives general grants from the State budget and can get specific ones for
investment. It can contract loans with banks. The employees are civil servants or
contractual employees, if the union has commercial activity. Unless the law says
differently, the general provisions applying to municipalities apply to unions.
Thanks to these unions, all basic public services are available everywhere. By
creating solidarity and confidence between local politicians and bureaucrats, they
allowed a step forward for more integrated structures.
5.2.2. The second step of IMC: «communities», a success story
A 1966 Act created four compulsory urban communities in specially frag-

mented metropolitan areas (Bordeaux, Lille, Lyon and Strasbourg). The aim
was to allow better regional development policies, considering that a Region
needs a dynamic capital. Others were subsequently created on a voluntary basis
(the current total is 16). They have a wide range of competences and full fiscal
power. The Act of 6/2/1992, on «territorial administration», proposed new
forms of «communities», more centralised in competences and taxation. Imple-
mentation was slow, the main reason being the complexity of the rules. After a
new round of negotiations, Parliament adopted the law of 12/7/1999 «On sim-
plification of inter-municipal cooperation», which reduced the number of com-
munity types to three. Its strategic aim was to cover the whole territory with
communities, but the Government was convinced that this would take time. It
succeeded in an unpredictable way and by 2005 this aim was nearly achieved.
There are different explanations for this process, but the financial incentives
played a key role. One of such incentives was the exclusive attribution of the
business tax to the inter-municipal communities, instead of to municipalities.
The enlargement of the tax limits and an equal treatment of corporations in a
broader zone had also positive effects. Being the most productive local tax, it
secures a strong financial capacity for the inter-municipal community. The sec-
ond measure was a strong increase of the State general subsidy for the new
communities. It was so attractive that the number of communities was rapidly
over all cabinet’s expectations. In a period of fiscal stress and need of invest-
ment, it created harsh competition between the local governments.
Currently there are 2,599 inter-municipal communities21. They Include
35,041 municipalities, 95,5% of their total number, and 91,2% of the national
population. Out of these, 1,320 communities have established the exclusive
business tax. There are 3 types of inter-municipal Communities:
21
Data as of 1/1/2011.
217
robert hertzog
(a) For rural municipalities and small cities (the law sets no size limit22):
2,387 communautés de communes, with a population of nearly 28 mil-
lions.
(b) For larger cities (total over 50,000 inhabitants and a city of at least 15,
000): 196 Communautés d’agglomération (CA) with a population of
23,7 millions.
(c) Metropolitan cities (over 500,000 inhabitants): 16 Communautés ur-
baines (CU), with an overall population of 7,7 millions inhabitants.
The creation of an inter-municipal «community» (communauté) is similar to
that of the unions. Communities are legal entities, with compulsory minimal
competences in economic development and urban planning. All other munici-
pal competences are open for transfer, except State delegated competences,
which belong to the mayor. It is possible to add new competences at any time
and many communities are in a continuous process to extend their functions.
Community councillors are elected by municipal councils23: each one elects
a number of delegates in approximate proportion to the population. The small-
est ones have at least one delegate, generally their Mayor. These assemblies can
be really numerous. President and deputy presidents of the community are
elected by the community council. They have the same executive powers than
the Mayor, in the matters for which the IMC is competent. The community has
its own administration and staff but can, by contract, share it with a municipal-
ity. The law of 16/12/2010 has established provisions to facilitate such mutu-
alisation practices.
The budget follows the same rules as the municipal budget. The resources
are: the local business tax, the tax on property for waste collection, the tax on
salaries for public transports. The «communautés de communes» have taxes
additional to municipal taxes, but they can opt for exclusivity of the business
tax. Community council can create an equalisation fund that re-distributes part
of its tax income to the participating municipalities, on criteria defined by the
council. Moreover, communities receive general grants from the State and they
can establish fees for commercial services and contract freely loans.
5.2.3. A new step to rationalize inter-municipal cooperation (IMC)
The «Committee for the reform of local government» (see supra) proposed
in his Report (3 March 2009) major modifications of the IMC. Some of them
22
650 CC have less than 5,000 inhabitants! Half of the total is under 10,000 and only 29 have
a population of more than 50,000.
23
In the next scheduled local elections (2014) the delegates will be mentioned on the voter
bulletins; the municipal council will no longer have to decide who shall represent the municipal-
ity, as this will depend directly on the result of the election.
218
are enshrined in the law of 16/12/2010 on territorial reform. New provisions

should facilitate the amalgamation of the municipalities belonging to the same
community, but there is not much willingness for that. A plan of systematic
revision of the IMC entities is implemented in each department aiming (for
2012) at reducing their number and defining more rational boundaries and clear
competences. Likewise, the law allows the creation of a new category of IMC
called métropole. Its main specificity is that it will get competences transferred
from the department and the region in certain domains. The difficulty will be its
financing, as the department and the region will have to pay compensation to
the métropole.
5.3. The departments
The 101 French departments (including overseas ones) are an intermediate

level of territorial division with a long tradition, important competences and
huge budgets. There is an ongoing debate about its possible amalgamation with
regions and the distribution of certain competences to the inter-municipal com-
munities. But resistance is immense. The departmental council (Conseil
Général) can decide on all departmental matters, particularly on the creation of
public services, on provisions for social assistance, on budget and taxes, on
roads and secondary schools construction and maintenance, support for asso-
ciations or municipalities, etc. The council has at least 4 meetings a year; it
elects a permanent committee to which it can delegate its competences (except
budget and taxation) and which has frequent meetings.
The councillors (conseillers généraux) are elected for six years in a con-
stituency called canton. Half of the assembly is renewed every three years, so
the political stability is greater than in other local governments. The election
follows a two-round voting system: a single winner is designated by each
voter who casts a single vote. The abstention is often high, especially in urban
areas. Totally new rules will apply in 2014 (next local elections) when a «ter-
ritorial councillor» will be elected as member of both the department and the
regional councils. Political future of this procedure is yet uncertain. The
councillors are not professionals; however, they receive a variable compensa-
tion for their activities. The executive president, assisted by four to fifteen
vice-presidents, is elected among the councillors every three years. Being
«the only one in charge of the administration»; he prepares and executes the
council deliberations, signs the contracts, appoints employees, decides on ex-
penditures. He can delegate powers to the vice-presidents and in limited part
to the staff.
Departments are in a difficult financial position. Their expenses are in pro-
gression (social) and often rigid (roads, education). Their resources are either
hit by the crisis (tax on real estate transactions) or no longer flexible (taxes are
shared with the State, without having the capacity to fix the rate). On the other
219
robert hertzog
hand, grants from national budget have stabilised. The consequence is that they
reduce investment as well as discretionary expenses (culture, support of mu-
nicipalities, etc.), and their debt is rising.
5.4. The Regions
The region is the youngest territorial body in France. It was primarily estab-
lished in 1959, as a district for State administration in charge of economic de-
velopment and coordination of the national policies. It evolved by steps and is
fully decentralized since 1986. It has no legislative power, nor even much regu-
latory competences. Its native field of responsibility is planning, regional de-
velopment, financial support of policies considered of regional interest though
they are under the responsibility of ministries, universities, scientific research
centres or other local governments. As shown above, new competences were
added several times, without any strategic vision. Their financial size is about
13% of the total local government budgets, which is less than 40% of depart-
ments. Yet certain regions (Corsica, all those overseas) have special compe-
tences and a great autonomy.
The regional council is elected for 6 years, but the one elected in 2010 will
stay in office until 2014 only. The electoral system has been modified several
times. The one in force in 2004 and 2010 is especially complicated in order to
allow a representation of the departments and to guarantee a political majority
because until 2004 most regions had volatile majorities. In the 2014 elections,
new rules will apply: a territorial councillor will be elected as member of both
the department’s and the region’s council.24 The council, which has at least 4
meetings a year, elects a permanent committee to which it can delegate most of
its competences, except in matters of budget and taxation. The president, elect-
ed by the council at its first meeting after elections, is, in fact, the leader of the
list that wins the competition. The president and the vice presidents have clas-
sical executive tasks, and they can delegate certain competences to high rank-
ing officers.
An advisory council, the Economic, social and environmental regional
council (CESER) represent varied interests. 5% of the members are appointed
by the prefect among «qualified persons» in regional development. All others
are presented by the institutions that are, in fact, the real members: trade unions
(35%), employers (35%) and associations, NGOs, university, etc. This advisory
council gives an advice on the budget and annual accounts, on any question the
president asks for and can decide by itself to make audits, studies and evalua-
tions on regional policies or matters of regional interest.
24
Union of two mandates on one person is meant to facilitate future amalgamation of depart-
ments and region. Though serious objections, the Constitutional Court did not consider that it
was a violation of law. The opposition, though, has promised to abolish it.
220
6. HUMAN RESOURCES: THE LOCAL CIVIL SERVICE
As of 2011, there are 1,825,000 public employees («agents», in the French

terminology) working in 250 different kinds of positions in municipalities, de-
partments, regions, inter-municipalities and other local bodies. About 1,4 mil-
lion are permanent civil servants (fonctionnaires), recruited through competi-
tive exams at the beginning of their career. Local governments can also recruit
non-permanent employees, under restricted conditions. In commercial services,
employees can be under civil labour contract. The number of local government
employees has strongly grown since 1980 and so has the level of expertise.
Payroll charges are an important part of budgets25 and the Ministry of the Budg-
et presses to slow down the figures.
A traditional cause of dependency of municipalities was the low level of

expertise of their personnel. Mayors were quite happy to direct devoted bu-
reaucrats, not too far away from their own level of education. Therefore,
State administrations had great influence as consultants and support of com-
munal services. This has totally changed, as today local employees have the
same university background, professional expertise and salary than State
employees.26
The French civil service law, conceived at the end of the 1940s, was applied
only to State employees. Local governments had a large liberty to recruit and
manage their own employees, often in low positions and with a logic of «clien-
telism». Staff was under-qualified, even in big communities. Provisions were
different in nearly each one and mobility was rare. In the early 1970s a national
agency was created, ruled by delegates from local government, with the mis-
sion to establish a professional training program and organise or supervise the
recruitment procedures for entering into local government careers. This agency
is now the Centre national de la Fonction publique Territoriales (CNFPT).
This legal entity, financed by taxes paid on local government salaries, has the
mission to organize the professional training of local employees. It has differ-
ent schools and regional branches around France. After the decentralisation
laws of 1982, the central government decided to modify the general status of
the civil service. Therefore, a 1983 Act created three categories and defined
their overall status: State civil service, local civil service and the one of public
hospitals. The law of 26/1/1984, dedicated to local civil service, organizes a
career-oriented system. Regulations are enacted by the central government af-
ter consultation with an advisory committee with representatives of local gov-
ernment executives and trade unions.
25
Total 50,2 billion€ in 2009; 32 in muncipalities, 10,7 in departments, 5 in IMC and 2,7 in
regions.
26
A survey in 2011 shows that local government employees are the happiest with their jobs,
compared with State employees and private workers.
221
robert hertzog
To enter the local civil service, succeeding a competitive exam does not
grant directly a position. Successful candidates are signed on an aptitude list
for three years and have to apply for a position at a concrete local govern-
ment. This allows a good balance between liberty of decision by each em-
ployer and a guarantee of minimal qualifications of the personnel recruited.
The salary scale is the same as in the State civil service, but there are often
additional advantages. Employees are in a statutory position with many pos-
sibilities to progress during their professional life.27 Mobility, especially in
the higher jobs, is easy and common, because the status is unified for all local
government. In each department, a Centre de Gestion, an inter-administrative
legal body, has responsibility for the statutory management of local employ-
ees working in entities with less than 350 employees, which is the situation of
the greatest number of municipalities; yet, individual decisions are taken by
the mayors.
The higher staff jobs in local governments (General Director, deputy direc-
tors) are «functional positions». These are powerful officials but they can be
removed at any moment by pure decision of the local executive. If they are
civil servants, they keep nonetheless a job. For high management positions,
called «territorial administrators», applicants are recruited by a special school
called Institut National d’Etudes Territoriales (INET) located in Strasbourg,
like the famous State School ENA, with which cooperation is organised.
7.1. Local government’s expenses
The expenses of local governments represents nearly 22% of all public gov-
ernmental expenses (including the central administration and the social securi-
ty) and 70% of public investment expenses. Their budgets have increased at
high speed since the 1980s, more than the State budget and GDP, due to the
transfer of competences but also to the dynamism of the local leaders and the
flexibility of the resources, in spite of their defects. The following figures can
be compared to the expenses of the central government (480 billion €) and the
Social Security (494 billion €).
27
Jobs are divided into eight fields representing local government’s main sectors of in-
tervention. There are also 55 work frameworks groups; each one is divided into grades that
represent the employee’s experience, qualifications or seniority. Three hierarchical catego-
ries, A, B, C, exist. About 75% of all employees are in the lowest category, C; about 14% are
B and 11% are A. There are special tracks for engineers, doctors, social service workers,
sports, etc.
222
Expenses in the 2009 fiscal year28

Local self-government tiers
(in billion €)
Municipalities 91,8
Inter-municipal cooperation bodies with own 34,1
tax power (communities)
Consolidated Municipal Sector 117,4
Departments 68,4
Regions 28
Inter-municipal unions 17, approximately29
Total 213,8
On the other hand, the following table shows the total expenses and receipts
of local governments, for the fiscal year 2010 (in billion €):2829
Regions Departments Municipalities
Total Expenses 26,5 68,9 91,1

Total Receipts 26,7 68,3 92,4
Current Expenses 15,8 52,8 62,4
– employees salaries 2,8 11,0 32,6
– social assistance 34,6
Current Receipts 21,8 60,6 74,5
– taxes 12,4 40,7 44,4
– allocations from the central government 8,6 13,7 19,5
Investment Expenses 10,2 15,5 28,7
Loans 2,7 3,0 6,4
The general frame of the budget is the same for all local and regional enti-
ties. It is divided in two parts: current operations and investment. Both must be
balanced, but a surplus of resources in current operations means savings for
paying investment costs. Current expenses are salaries, social aids, general
administrative costs, grants to private associations (sport, social, culture), in-
terest of loans, redemption (not of buildings). The revenues consists of fees,
taxes, and unconditional grants from State. Investment expenses are mainly
28
2009 and 2010 figures are similar. A national economy stimulating programme boosted
local governments budgets in 2009.
29
This is our own estimate, as statistics on IMC unions (syndicats) are complex, and the real
figure is probably higher. The full municipal sector is then about 134,4 billion €, 58,2%, out of
a total of 230,8 billion €. One should also add the services managed by private companies on
basis of contracts (concession…), which are important in many domains (water, waste, transpor-
tation…). However, there is no consolidated information.
223
robert hertzog
debt refund, buying land, real estate and any equipment, and public works.
The specific resources are: savings, general or earmarked grants, selling of
real estate, some assigned taxes on construction and, of course, loans. Local
governments are free to take loans with any bank, by open competition, with
the condition that the money is spent for paying new investment and not re-
funding former debt.
«Logistic tasks», like treasury and book-keeping, tax management (asset

evaluation, control, tax collection) are fulfilled by employees of the Ministry of
Budget. This could be seen as undermining local autonomy, but it is well ac-
cepted as a free service and does not intervene in decision-making. Most mu-
nicipalities would not have resources to do the job and many taxes are shared
by several LG tiers or with State. It is a guarantee of neutrality in tax assess-
ment and of professional supervision of the funds, without risky bank positions.
It allows quick national consolidation of data that is valuable in critical times.
7.2. Local authorities’ resources
Local government resources are numerous, complex, different for each tier
and in constant evolution. Local and regional authorities raise direct and indi-
rect taxes, as well as grants from the central government. They can establish
fees and freely borrow money (following competitive procedures) in order to
pay new investment. The existing direct local taxes, created at the end of the
18th century, have archaic characters but also some advantages. Two property
taxes, on buildings and on land, are paid by the owners, mainly to the munici-
palities, communities and departments. The taxable assets are assessed by the
government, taking into consideration physical criteria, but appraisals have not
been fully reevaluated since 1970 (!). A local revenue tax is paid to the mu-
nicipalities and the «communities of communes» (IIMC) that have not opted
for the exclusive business tax, payable by all persons (families) who occupy a
dwelling, on the basis of theoretical revenue depending on its characters. The
assemblies decide on the rate of these taxes within certain limits. Moreover,
municipalities and «communities» (IMC) can establish a tax on salaries to fi-
nance public transportation.
The local business tax has been dramatically modified by the Budget for
2010, mainly in order to reduce its weight on manufacturing activities. It has
also modified the distribution of local taxes between the different tiers of local
and regional government. The new asset is a mix of value added and property,
with additional criteria for certain activities and provisional compensation by
national budget. Regions and departments have no longer the capacity to mod-
ify its rate and get a certain fraction of the total collection. The main capacity
of decision is in the hands of the «inter-municipal communities». The system
has become awfully complex, while the reform was meant to «simplify» the old
224
taxe profesionnelle30(!). Departments and regions get part of taxes shared with
State, like the national oil taxes. Departments receive a national tax on the car
insurance contracts. There are about 20 other taxes, some with small products:
on real property sale (municipalities and mainly department), car registration
(region), waste collection (the entity which delivers the service). Many of these
taxes are optional. Their regime is regulated by the Tax Code, but the local
council must decide to establish them in a specific unit. The councils can some-
times decide exemptions or reductions in frames defined by law.
In 2011, the financial transfers from the State budget to local government
bodies presented the following figures:
– General current grant: 41,4 billion €
– Compensation grants (for transfers of competence to local bodies): 8 bil-
lion €
– Reimbursement of VAT on local investment expenses: 6 billion €.
The proportion of grants is diverse, depending on the category of the local/
regional, the highest being the one for regions. The general grant has an equal-
ization mechanism in favor of municipalities with lower financial capacities.
The equalizing impact should be strengthened in 2012. To face financial crisis,
the grants are frozen from 2010 to 2013. This creates a situation that is harder
for the poorest local units, which need help in a context of global shortening.
7.3. Financial autonomy
Autonomy is a constant political argument in the long struggle of local and

regional authorities to get more money from the State. A traditional element of
decentralisation consists of having a proper budget, resources and properties
and a certain liberty to decide on them. The Constitutional Court considered it
as part of the free administration. It became an irritating political problem at the
end of the 1990s, when several laws abolished local taxes and compensated
them by grants from the national budget. Local government’s thesis was that
this lowered their power, but the Court decided that local revenues were not
reduced in a way that was hurting free administration. This became an issue for
the 2002 elections. The new government, led by Jean-Pierre Raffarin, a former
regional president, decided to launch the «Act 2 of Decentralisation». A modi-
fication of the Constitution in 2003 added art. 72-2, enshrining many principles
that were just customary until then. The territorial communities shall enjoy
revenue of which they may dispose freely in the conditions determined by law.
They may be authorized by statute to determine the basis of assessment and the
rates thereof, within the limits set by law. There is a principle of compensation
for new competences and another for equalization.
30
For details, see the Rapport de l’Observatoire des finances locales 2011 (in Bibliography).
225
robert hertzog
The principle of fiscal (tax) autonomy was meant to avoid cutting of taxes
that are replaced by grants. Therefore, taxes and «other own revenues» shall
be a «decisive part» of all resources in each category of local government.
More precision shall be given by an «organic statute». The one passed in 2004
gives a definition of the own revenues that excludes grants and loans, but in-
cludes revenue coming from taxes on which local governments have no capac-
ity of decision. A general definition of the «decisive part» has been rejected by
the Constitutional Court, therefore there is only the mention that the ratio of
own revenues should not be smaller than the one valid for 2003. In fact, the
figures have risen in a paradoxical way.31 Many new revenues allocated to
departments and regions consist of a share of national taxes, considered by law
as «own revenues», but local and regional authorities claim they restrict their
fiscal power (!).
There is nothing original on this subject. Local governments have always

had right to have properties and have important ones: land, buildings, roads,
equipment and machines. The General code of properties of public legal per-
sons, which applies to the State, local and regional bodies and other public enti-
ties, distinguishes in a classical mode between public and private property re-
gimes. The first one enjoys a special protection and cannot be sold but it can be
de-classified. These are properties that are for common use (roads, sea side) or
specifically designed for public service (schools, water tower, city-hall, etc.)
These assets can be given for a temporary period to other persons for economic
use, under the payment of fees, corresponding to the advantages the user will
find in this operation. Public properties are evaluated in the general accounts
but depreciation amount of buildings and other real estate is not in the budgets.
Local and regional «private properties» are ruled by civil law, though there are
some specific provisions. They concern land, forest, lakes, houses and other
buildings not affected to a public service.
Until 1982, France enjoyed a kind of co-administration of local affairs. The

prefect was the executive of the department and the region. State administration
had a strong grip on municipal policies by earmarked grants for investment and
by consultation or support on financial or technical questions. This is the past.
Since 1982, parallel to greater autonomy, a systematic and clever control sys-
31
In 2009, as compared to (2003): 62,3% for communes (60,8); 65,5% for departments
(58,6); 54% for regions (41,7).
226
tem has been established, with the same rules and procedures for all local and
regional entities.
To begin with, there is a control of legality on the decisions of local and
regional assemblies and executives. This is a constitutional duty of the prefect.
The law contains a list of acts that must be sent to the prefect for information.
This, and effective publicity, are conditions for entering into force. The prefect
can claim for a modification of a local or regional decision (an amendment to
be performed by the affected body) if he considers that the decision is illegal.
Alternatively, the prefect may go immediately to the administrative court for
annulment.
Second, there is also a financial control. For this purpose, a financial con-
trolling board was established in each region (Chambre régionale des comptes),
under the supervision of the national Accounts Court (Cour des Comptes). Its
members have a status of judges, though most of their activity is not litigation
but control and audit. They have three kinds of powers. First, they judge the
accounts of local and regional accountants, who are State employees. Appeal is
possible to the Cour des comptes and then to Conseil d’Etat. Second, they give
an advice when the prefect or other authorized officials claim that the budget
has not been adopted in time, is not balanced or does not contain credit for
compulsory expenses. In these cases, the prefect can decide on the budget if the
local assembly does not comply with legal requirements. On the other hand, if
the budget implementation ends with deficit (exceeding a certain ratio) the re-
sponsible local or regional authority will be put under a special supervision of
the court and the prefect. Finally, the regional boards control periodically all
local and regional authorities32 (unless the very small municipalities for which
it is done by regional branch of ministry of budget) and even private entities
which got public money. Their reports are public and must be discussed at the
next local assembly meeting. The role of these regional boards was very criti-
cized by politicians and local and regional staff,33 but it is well accepted and
probably the cause of the generally sane financial situation of local and re-
gional authorities. They pushed for better management techniques and internal
control procedures, now familiar to local managers.
Legal protection of local autonomy is guaranteed by the Constitution, by the

European Charter of Local self-government, and by the Constitutional court.
More concretely, the administrative courts solve each year hundreds of cases
opposing the State and local and regional authorities, or between those bodies.
32
They have also competence on other public organisations, such as hospitals, universities,
social housing, etc.
33
In the 80’s and 90’s, they made public corruption cases that ended in criminal courts.
227
robert hertzog
For example, decisions on the grants allocated to a given local community can
be discussed in the courts, as well as new regulations that create expenses for
local government units, or any administrative regulation issued by a State au-
thority.
The most efficient protections, though, lay in the political system and in its
traditions. Decentralization can be seen as a continuous struggle between a po-
litical class strongly enrooted in local society and national power-holders, gov-
ernment and bureaucracies. The reality, not always visible, is that the French
model is essentially based on cooperative decentralisation. On the political
side, there is the strong representation of local and regional leaders in Parlia-
ment, especially in the Senate. Local politicians are also the law-makers. They
have always had a strong grip on national policies because of a typical character
of the French political system: plurality of offices (cumul des mandats), mean-
ing that the same person can be elected for different positions and keep them
all: mayor, department counsellor, senator or deputy and minister.34 National
representatives identify themselves with their territorial constituencies. Most
presidents of the departments are senators, which makes them a powerful trans-
party lobby in Parliament. Furthermore, the Senate has a special role of repre-
sentation of territorial communities. Not to mention the influence of national
associations of mayors (created in 1907), of departments, of regions, of great
cities, of touristic or forest-municipalities, etc. Ministries ask always their ad-
vice when preparing new projects. They make also direct proposals and work
with parliamentary committees. Pressures from the central government, though,
often succeed in making Parliament adopting laws that are not welcome by lo-
cal government practitioners, the 2009 business tax reform for example, but
this is common politics.
At the technical level, there are many ways of cooperation between the State
and the local governments. For instance, the National Committee of Local Fi-
nances, composed of representatives of ministries and local and regional au-
thorities and chaired by a local politician, has certain powers in the distribution
of grants and must give an advice on all regulatory decisions of the central gov-
ernment that have a specific impact on local finances. There is a committee for
evaluating the compensations when new competences are transferred from the
State to local and regional authorities. Another one discusses the rules to be
established for local government civil service. There are dozens of this kind.
Summing up, the logistic of local finances, treasury and tax administration are
in the hands of State administrations, but they are in constant working relations
with the territorial communities.
Protection of local autonomy exists not only against the State, but also vis à
vis other local or regional authorities, because the general clause of competence
34
This is now restricted to two offices, and a minister cannot be an MP; but positions in IMC,
in public companies, in board of hospitals or ports, etc. are not counted.
228
creates often overlapping interventions of different local units. In this respect,

the constitution says explicitly in art. 72 that «no territorial community may
exercise authority over another». This principle has been raised, for example,
to challenge the conditions imposed on municipalities by the departments, in
the field on grants.
In France, like in other countries, European law applies to local authorities

in different matters: contracting, prohibition of certain aids to private compa-
nies, respect of principles of free competition. Furthermore, European citizens
can vote in local government elections and apply for jobs in local authorities,
etc. A specific example is the abolition of privileges for local and regional au-
thorities loans when a 1988 directive established the free circulation of capital,
as this resulted in the privatisation of a public bank that merged later with its
Belgian counterpart to become the current Dexia. It opened that market to all
banks and modified deeply the debt management.
Many regions, departments and big cities have a lobbying and intelligence
office in Brussels, often shared with several ones. In this sense, all national lo-
cal authorities associations have a European watch service. Great attention is
given to EU funding, though it is considered as a complicated field. Structural
Funds are first managed by ministries and prefects of Region, but in Alsace the
management of the Interreg Funds has been delegated to the Region. On the
other hand, all French members of the Committee of Regions are politicians,
often mayors or presidents, few ones with a national scope. What is more, the
president of the said Committee has been several times a French national.
(A) Handbooks
Aubin, E.: Droit de la fonction publique territoriale. Gualino - Lextenso, 2009.

Auby, Jean-Bernard; Auby, J.F. & Noguellou, R.: Droit des collectivités lo-
cales. PUF, Thémis droit, 2009
Bœuf, Jean-Luc & Magnan, Manuela: Les collectivités territoriales et la dé-
centralisation, La Documentation française, Paris
Bonnard, Maryvonne: Les collectivités territoriales La Documentation fran-
çaise, Paris
Faure, Bertrand: Droit des collectivités territoriales, Dalloz 2009, 701 p.
229
robert hertzog
Ferstenbert, Jacques; Priet, F. & Quilichini, P., Droit des collectivités terri-
toriales. Dalloz, 2009.
D. Grandguillot: Les collectivités territoriales après la réforme. Gualino –
Lextenso, 2011.
Rapport de l’Observatoire des finances locales: les finances des collectivités
locales en 2011, Ministère de l’Intérieur, Paris, 2011; on the website of the
Ministry.
Thoumelou, Marc: Les collectivités territoriales quel avenir ? La Documenta-
tion française, Paris.
Verpeaux, Michel: Droit des collectivités territoriales, PUF, Paris.
Verpeaux, Michel: Les collectivités territoriales en France, Dalloz, Paris 2011.
Vital-Durand, Emmanuel: Les collectivités territoriales en France, Hachette,
Paris, 2011.
Grale: Annuaire des collectivités locales. A yearbook published since 1979,
since 2009: Droit et gestion des collectivités territoriales, Editions Le Moni-
teur.
(B) Periodicals
Pouvoirs locaux. Les cahiers de la décentralisation. Tri-monthly, published by

the Institut de la décentralisation
La Gazette, Ed. Le Moniteur, Weekly: http://www.lagazettedescommunes.com/
Revue Lamy Collectivités territoriales, Monthly, Wolters Kluwer, France
La Lettre du Cadre Territorial, Bi-monthly: www.lettreducadre.fr
(C) Internet resources
Legifrance: Constitution, Parliament activity and reports, legislation, codes,

Courts cases: www.legifrance.gouv.fr
Ministry of Interior: general information, statistical data: www.dgcl.interieur.
gouv.fr
Conseil économique social et environnemental: a national advisory committee,
has several reports on LSG reform: www.lecese.fr/
CNFPT (National Agency for training LSG agents): www.cnfpt.fr/
Updated books, journals and official reports: http://www.ladocumentationfran-
caise.fr/dossiers/collectivites-locales/ouvrages.shtml
230
National associations of local authorities:

Association des maires de France: www.amf.asso.fr
Association des régions de France: www.arf.asso.fr
Assemblée des départements de France: www.departement.org
Research institutes:
GRALE (a national federation of research centres): www.univ-paris1.fr/in-
dex.php?id=509732
Institut de la décentralisation: www.identralisation.asso.fr
231
Chapter 10:
LOCAL GOVERNMENT IN GERMANY
Dian SCHEFOLD
Local self-government is an old tradition in Germany, but after the period of

absolutism, its importance again increased in the reforms influenced by France
during the Napoleonic period in western Germany after 1801 and in the Prus-
sian reforms of the same period, with the milestone of the Prussian Städteord-
nung (code of towns) of 19 November 1808 drafted by the Freiherr vom Stein.
This introduced widespread legislation, which continued throughout Germany
during the 19th century. Regulation of local self-government had always been a
competence of the several States (later called Länder), rather than of the central
State (Reich, empire or federation), with the City-States enjoying a special sta-
tus as members of the central State (as of 1815, Hamburg, Bremen, Lübeck and
Frankfurt; since 1945, Berlin, Hamburg and Bremen). For that reason, a differ-
ent treatment of towns and other local communities was normal. In Prussia, for
example, the rural communities were regulated by law only in 1891.
In terms of the central State (Bund) a first guarantee of local self-govern-
ment, binding for the Länder, was given only by the Weimar Constitution of
1919 (Arts. 17.2 and 127). But in 1935, the Nazi government tried to impose a
uniform Deutsche Gemeindeordnung for all the local authorities in Germany,
abolishing democratic organisation and in this way unifying the tendencies of
legislation.
After 1945, every Land established its own code of local authorities. The
German Federal Constitution or «Basic Law» of the Federal Republic of Ger-
many (the Grundgesetz of 1949, originally thought to be provisional) guaran-
teed local self-government (Art. 28), leaving, however, the legislative power on
the subject (the constitutions and laws) to the Länder. After the German reuni-
fication in 1990, the new East German Länder established their own legal codes
for local authorities. Therefore, to study local self-government in Germany, one
has to take into account the regulation of each one of the 16 Länder, in addition
233
dian schefold
to the federal constitutional guarantee. However, there have been similar ten-
dencies of development in the several Länder: for example, in the 1970’s there
was a drastic reduction of the number of local governments in West Germany,
with the corresponding (and ongoing) development in East Germany after
1990; and the 1990’s saw the general introduction of the direct popular election
of mayors and of the referendum and popular initiative at the local level, with a
tendency towards the privatisation of many local services.
At present, the 16 Länder of the Federal Republic of Germany contain

12,629 local communities, among them three City-States. In some Länder, in
addition to the local communities, a second tier of self-government exists in the
form of the Kreise or Landkreise (comparable to counties). Although the larger
towns do not normally belong to a Kreis, they accomplish the combined func-
tions of the first and second tiers of local self-government. There are 116 of
such kreisfreie Städte, along with 323 Kreise, so that the second tier consists of
439 units.
Furthermore, the larger towns are often subdivided into city districts with
more or less their own powers; similar phenomena may be found in merged
municipalities, where the old communities sometimes maintain some powers.
On the other hand, smaller communities often have joint administrations, as is
the case with 77% of the local communities. That can happen based on State
(Land) laws, in the old and still-used (although constitutionally problematic)
form of an Amt (common office), or a Gemeindeverwaltungsverband or Verwal-
tungsgemeinschaft. While these solutions do not suppose the consent of the re-
spective communities, the latter may collaborate as well through voluntary inter-
communal cooperation (Zweckverband). Nevertheless, all these solutions
obviously reduce the importance of the governing bodies of the individual com-
munities. Therefore there is, in two Länder, the alternative of constructing local
communities on two levels: to join several local communities (Ortsgemeinden)
into a second-tier community with its own council and administration (the Samt-
gemeinde in Lower Saxony or the Verbandsgemeinde in Rhenania-Palatinate).
Finally in some Länder, and for certain purposes, there are unions or asso-
ciations of local communities, forming a sort of third tier of local government
(Landschaftsverbände, Bezirksverbände), in addition to the de-concentrated
forms of State administration. For the representation of their interests, local
communities are associated in unions on the levels of the Land and of the cen-
tral State, while separate organisations are formed for the larger towns (Deut-
scher Städtetag), for the other local communities (Deutscher Städtebund and
Gemeindebund) and for the Landkreise (Deutscher Landkreistag). These or-
ganisations have the specific role of participating in State decisions and at the
European level (on the Committee of Regions).
234
local government in germany
3.1. The European Charter of Local Self-Government
Given the historical tradition of local self-government in Germany and Ger-

many’s cooperation at the level of the Council of Europe, this country’s participa-
tion in the preparation and enactment of the European Charter of Local Self-
Government (ECLSG) was unquestionable. As a matter of fact, Germany was
among the first signatory States of the Charter, which was approved by a federal
law of 22 January 1987 (BGBl. II, p. 65) and ratified without reservations (al-
though a declaration regarding Berlin has been overruled since the German reuni-
fication). Therefore, the ECLSG is, in principle, applicable in Germany. The
problem exists, however, that the Charter is based on a federal law while, as em-
phasised above, legislation regarding local authorities is a power corresponding
to the Länder. Thus, there are doubts as to the constitutionality of the law ratify-
ing the Charter. According to practice (Lindau-Agreement of 1957), international
treaties affecting the powers of the Länder are accepted, if the Länder have agreed
to them beforehand, as in the case of the Charter. But there is no Constitutional
Court decision confirming that opinion. Therefore, many German experts argue
that Art. 28 of the Basic Law1 contains all the guarantees of the ECLSG and apply
this article, perhaps using the Charter as an interpretative instrument.
3.2. Federal constitutional guarantee of local self-government

(kommunale Selbstverwaltung)
Article 28 of the German Federal Constitution states2 the following:

«Land constitutions – Autonomy of municipalities:
(1) The constitutional order in the Länder must conform to the principles of a
republican, democratic and social state governed by the rule of law, within
the meaning of this Basic Law. In each Land, county and municipality the
people shall be represented by a body chosen in general, direct, free, equal
and secret elections. In county and municipal elections, persons who pos-
sess citizenship in any member state of the European Community are also
eligible to vote and to be elected in accord with European Community law.
In municipalities a local assembly may take the place of an elected body.
(2) Municipalities must be guaranteed the right to regulate all their local
affairs on their own responsibility, within the limits prescribed by the
laws. Within the limits of their functions designated by a law, associa-
1
In this contribution, the expressions Basic Law and German Federal Constitution are used
synonymously. «BL» stands for Basic Law.
2
English language version proposed by the German Federal Ministry of Justice.
235
dian schefold
tions of municipalities shall also have the right of self-government ac-

cording to the laws. The guarantee of self-government shall extend to
the bases of financial autonomy; these bases shall include the right of
municipalities to a source of tax revenues based upon economic ability
and the right to establish the rates at which these sources shall be taxed.
(3)
The Federation shall guarantee that the constitutional order of the
Länder conforms to the basic rights and to the provisions of paragraphs
(1) and (2) of this Article.»
The essential principle, based on the Federal Constitution, is the general
guarantee of local self-government for all the local communities in Germany,
with the additional guarantee of the legally granted powers for the unions of
communities (Gemeindeverbände), especially at the second tier (Kreise). The
guarantee includes financial self-responsibility as well. This guarantee, ex-
pressed in Art. 28.2 of the Basic Law, is completed by the guarantee of a freely-
elected representation of the people, not only at the level of the Länder, but at
the levels of the Kreise and of the local communities, as well (Art. 28.1, para-
graph 2). These regulations concern the homogeneity of the Federation and all
the Länder in the German constitutional system. They are minimal conditions,
mandatory for every political power. They are normally completed and often
made concrete by additional dispositions in the Länder constitutions.3 For the
City-States, their constitutions are those of the city as municipality, as well.
The interpretation of this federal guarantee, clarified through lengthy discus-
sion and case law (but still controversial in some details) includes above all that,
within the legislative framework, local self-government concerns all the affairs of
the local community. The local character of tasks constitutes the power of local
authorities. Therefore, a special list of individual tasks is not necessary. In case of
general issues which have local impact, such as the planning of motorways or
power plants or cooperation for international development, the emphasis on the
local concern may justify the activity of local authorities, although the planning
decision of the central administration and the State’s foreign policy prevail. The
universal character of local communities’ power limits the activities of the Kreise
on legally delegated tasks. As far as local authorities are concerned, they act on
their own responsibility, as long as legislation does not limit or condition it; in
such cases, local authorities may act in the role of delegated State administrators.
Local power includes the statutory power of the local authorities, as well.
Nevertheless, this situation is limited by reservations in the legislative
framework: it may transfer a local task to higher levels of administration; it may
3
See, for instance, the Constitutions of Baden-Württemberg, Arts. 69-76; Bayern, Arts. 10-
12 and 83; Brandenburg, Arts. 1-2; Bremen, Arts. 143-149; Hessen, Arts. 137-138; Mecklen-
burg-Vorpommern, Arts. 3, 69 and 72-75; Niedersachsen, Arts. 57-58; Nordrhein-Westfalen,
Arts. 1, 3 and 78-79; Rheinland-Pfalz, Arts. 49-50; Saarland, Arts. 117-124; Sachsen, Arts. 82
and 84-88; Sachsen-Anhalt, Arts. 2, 75 and 86-90; Schleswig-Holstein, Arts. 2, 3 and 46-49; and
Thüringen, Arts. 80 and 91-95.
236
limit the margin of self-responsible decision; or it may regulate a matter and

delegate it as a State power to the local authorities. One of the most relevant
limitations is represented by the constitutional system of fundamental rights:
according to the prevailing opinion, fundamental rights may be limited only by
a legal ruling, not by autonomous decisions of local governing bodies. In prac-
tice, that leads to a strong limitation of local responsibility, e.g. in the areas of
taxation and contraventions of the law.
It follows that local self-government is protected as an institutional guaran-
tee which may be made concrete in different ways, but in no case abolished or
neglected. For the individual local communities, it results in a guarantee of
their constitutional and legal position, which may be limited (although with the
possibility of a merger with other local communities), but which is necessarily
carried out with respect while also taking into account the principle of legal
self-government. This supposes a balancing of interests and values and is im-
portant for their legal protection (see 10, below).
3.3. Consolidation of local self-government by legislation
There is no further federal regulation of local self-government, but every Land

(except the City-States) must comply with the constitutional rules and principles
through its own legislation. Normally there is a legal code for local communities
(Gemeindeordnung4) and one for second-tier communities (Landkreisordnung5
or Kreisordnung6), sometimes with both objects united under one law.7
4
With dates of enactment and most recent modification: Baden-Württemberg: 24 July 2000,
4 May 2009; Bayern: 22 August 1998, 27 July 2009; Hessen: 7 March 2005, 24 March 2010;
Nordrhein-Westfalen: 14 July 1994, 17 December 2009; Rheinland-Pfalz: 31 January 1994, 28
September 2010; Sachsen: 18 March 2003, 26 June 2009; Sachsen-Anhalt: 5 October 1993, 7
November 2007; Schleswig-Holstein: 28 February 2003, 28 March 2006.
5
Baden-Württemberg 19 June 1987, 4 May 2009; Bayern 22 August1998, 27 July 2009;
Hessen 7 March 2005, 24 March 2010; Rheinland-Pfalz 31 January 1994, 28 September 2010;
Sachsen 19 July 1993, 26 June 2009; Sachsen-Anhalt 5 October 1993, 16 November 2006.
6
Nordrhein-Westfalen: 14 July 1994, 9 October 2007; Schleswig-Holstein: 28 February
2003, 1 February 2005.
7
Brandenburg: Kommunalverfassung, 18 July 2007, 23 September 2008; Mecklenburg-
Vorpommern: Kommunalverfassung, 8 June 2004, 17 December 2009; Saarland: Kommu-
nalselbstverwaltungsgesetz, 27 June 1997, 11 February 2009; Thüringen: Kommunalordnung, 28
January 2003, 23 December 2005. Niedersachsen (Lower Saxony) has recently codified all the
local authorities in one Kommunalverfassungsgesetz: 17 December 2010. It should be noted that
the dates of enacting often do not reflect the original laws, but rather are re-publications after the
(very numerous) modifications, which would be almost impossible and would take too much
space to indicate in this contribution. Along the same lines, the names of the official gazettes
where the publications appeared are not mentioned herein, as they have different denominations
and abbreviations in the various Länder. Therefore, to find the actual texts, a foreign researcher
may want to consult publications such as the work of Schmidt-Eichstaedt, cited in the following
footnote.
237
dian schefold
These laws often contain rules on inter-municipal cooperation and for as-
sociations of municipalities surrounding the larger towns. These objects are
often ruled by special laws. All these laws were enacted after 1945 (in East
Germany after 1990), and they are very frequently modified.8
Therefore, federal legislation does not have a great influence on local self-
government, although the local authorities must execute the federally mandated
legislation, along with the legislation of their respective Land. But the power to
distribute tasks, formerly often claimed by federal laws, has been limited since
the constitutional reform of 2006, which has excluded the direct imposition of
obligations on local authorities by federal legislation: this must always be car-
ried out by the Länder, and it is within their power to decide on the execution
at the local level (Art. 87.1, paragraph 7 BL). A direct transfer to local authori-
ties by federal laws is no longer allowed, unless special constitutional regula-
tions justify it. In addition, the federal administration, very important at the
central level, does not have many institutional resources at the local level (some
special exceptions being customs, a very limited federal police, military admin-
istration and control of waterways and motorways). In some areas, in particular
Social Security, there are special forms of self-government separate from those
of local authorities, and others, formerly important ones such as railways and
the postal service, have undergone organisational privatisation and therefore
function nowadays as enterprises.
Regarding the legal status of the capital city, the reunification of Germany
has certainly increased the importance of the question, beginning with the re-
unification treaty itself. The fact that Berlin is one of the City-States, however,
already ensures it a special position. On the other hand, the distribution of the
central government’s agencies (especially the federal ministries) between Bonn
and Berlin is regulated by a special federal statute, and as a consequence of the
reform of federalism of 2006, a statute on the representation of the entire State
(the Federation) in the capital city should be enacted (Art. 22.1 BL). Neverthe-
less, such statute does not yet exist.

AUTHORITIES
4.1. The principle of universality
As previously stated (see 3, above), local authorities are in principle free to

accomplish all their tasks and to regulate these spheres of competence by local
8
For a (loose-leaf) collection connected with the laws on local elections, local finance and oth-
ers, one should refer to Gerd Schmidt-Eichstaedt (ed.): Die Gemeindeordnungen und die Kreisord-
nungen in der Bundesrepublik Deutschland, 2nd ed., 15th actualisation (January 2011), Stuttgart
(Kohlhammer). See other references and sourcebooks mentioned below in 12.2 of this contribution.
238
by-laws, but only within the limits established by State legislation. In practice,
most important are the local services of economic and non-economic charac-
ter, often summarized as Daseinsvorsorge (provision of existence). According
to the laws, the citizens are entitled to participate in these services. Non-eco-
nomic services of this kind are, for example, kindergartens and day nurseries,
sports fields, swimming complexes, educational institutes, cultural institutions
for concerts and theatres, parks, hospitals and cemeteries. Other competences
include local authorities’ planning power, oversight of the disposal of sewage
and refuse and participation in educational institutions. Furthermore, in terms
of local purposes and needs, local authorities have the right to exercise eco-
nomic activities, establishing local savings-banks and enterprises for energy
and water supplies, local traffic management, housing construction, etc. These
enterprises may be either a part of the local administration or separate estab-
lishments of public law, or commercial societies under the ownership of the
local community. These enterprises may often be organised through the coop-
erative efforts of several local communities. In case of necessity and public
interest, local authorities may by law establish the obligation for citizens to
use these services.
4.2. Practical limitations
Despite this very extensive power, its exercise is difficult and limited for
financial and economic reasons (see 7, below) and for legal ones, as well. The
latter are based on the legislative framework, which may limit local self-gov-
ernment. To understand the importance of this limitation, it should be noted
that local self-government, according to the prevailing opinion in Germany, is
considered local self-administration: although separate, it forms a part of the
governmental structure, not of the constitutional system, and even local regula-
tions cannot substitute a parliamentary law. Therefore, as far as fundamental
rights of the citizens are concerned, they may be limited only by law (this con-
cept as interpreted narrowly), and local authorities have the power to act in
these spheres only insofar as such laws allow them to. For this reason, besides
the mentioned obligation to use certain local services, all local taxation, fines
for legal violations, expropriations and/or measures to protect the environment
are possible only as far as the laws legitimise them. There are many legal provi-
sions of this kind, but only these define the power of local authorities in all
these spheres.
That is why, in spite of the principle of universality which permits the execu-
tion of voluntary local tasks as long as the margin of laws is respected, the com-
petence of local authorities is rather and essentially determined by legislation. It
often declares some tasks mandatory for local authorities, especially to ensure
the necessary services of a social State (e.g., social assistance, education). With
this structure, effective service may be combined with local responsibility for
239
dian schefold
the substance of the task. But more frequently, the legal regulation refers to both
the content of the services and the measures to be taken by the local authorities.
In this sense, urban planning, for example, is largely regulated but must be car-
ried out by the local authorities, and their economic activities in particular must
take intense regulation into account, even from the side of the European Union.
Furthermore, with or even without an explicit legal basis, State financial
resources may be allowed to aid certain local investments. With such earmarked
grants (see Art. 9.7 ECLSG), local authorities are influenced when setting their
investment priorities, e.g., in programs to finance certain sport and swimming
complexes or other voluntary tasks. The constitutional legitimacy of such pro-
grams of «golden control» is doubtful, but they are difficult to avoid.
4.3. Mandatory tasks with directives or «delegated» powers
Many of local authorities’ powers related to these tasks are regulated to a great
degree by State (Land) legislation, and local power is limited to that of simple
execution according to the directives given by the higher State bodies. This refers
above all to the tasks related to public order, in areas such as trades and crafts,
traffic, construction, immigration and public meetings, while the organisation of
the police force is nowadays generally independent of the local authorities.
For those tasks related to the public order and for other completely State-
regulated powers, there are different ways of understanding them. While, ac-
cording to tradition (and in clear separation from the tasks of local self-govern-
ment) they may be regarded as «State tasks», delegated to local authorities and
therefore under the general control of the State administration, a certain ten-
dency after 1945 (more in favour of local self-government) has qualified them
as genuine «local tasks», similar to those of local self-government, but also as
«mandatory tasks» under the power of directives of the State (Pflichtaufgaben
nach Weisung, according to the Weinheim draft of 1948). The earlier «dualistic»
construct prevails in six Länder (Bavaria, Lower Saxony, Rhineland-Palatinate,
Saarland, Saxony-Anhalt and Thuringia), while their consideration as «monis-
tic» tasks with a differing intensity of State directives determines the legislation
in seven Länder (Baden-Wurttemberg, Brandenburg, Hesse, Mecklenburg-Vor-
pommern, North-Rhineland-Westphalia, Saxony and Schleswig-Holstein).
Both constructs allow for State supervision and directives (as far as the laws
determine the appropriateness of local measures), but there are some differences
in details, especially regarding the position of local authorities calling for judicial
review against such limitations of self-government. The solutions in the various
Länder differ, although there is a tendency towards assimilation, especially in
terms of the participation of the council in the execution of delegated powers. In
both constructs, local governing bodies generally act as the lowest-ranking public
authorities and are most accessible to the citizens (cf. Arts. 4.3 and 4.4 ECLSG).
A State administration on that level has very low importance, except perhaps for
240
the police and a few federal authorities (see 3, above). Nevertheless, there are
cases in which the legislation of some Länder makes use of certain local authori-
ties (especially the heads of administration of the Kreise) as State authorities, to
ensure the implementation of the aims of the State administration (Organleihe).
5.1. Traditional forms and leading principles
The organisation of local authorities in the different parts of Germany has

traditionally varied in form. There is, in the tradition of Prussian towns, the
system of the magistrate (Magistratsverfassung), i.e., a multi-member adminis-
trative body elected by the council, while in Western Germany (influenced by
the French system), the mayor (Bürgermeisterverfassung) serves as the mono-
cratic governing body, elected by and presiding over the council. Later, in
southern Germany, the simultaneous popular election of council and mayor
(süddeutsche Ratsverfassung) was introduced, while in parts of northern Ger-
many after 1945 all the power was concentrated in the council, which, for ad-
ministrative purposes, employed an executive functionary (Gemeindedirektor:
norddeutsche Ratsverfassung). In contrast, on the second tier the influence of
the executive function, often with control of the State, normally prevailed, and
the council held fewer powers.
In this situation, two main tendencies influenced legislation. According to Art.
28.1, paragraph 2 of the Federal Constitution (see 3, above), the existence of a
council elected according to the constitutional principles of a general, direct, free,
equal and secret vote is generally prescribed for the Länder, as well as for all the
local communities and the Kreise; in this way the position of the council is strength-
ened in relation to the administration. On the other hand, since 1990 nearly every-
where in Germany the tendency towards the direct popular election of mayors has
determined the form of organisation at the level of local communities, as well as
for the heads of administration of the Kreise (Landräte). Thus, the forms of or-
ganisation have converged, while at the same time preserving elements of the
former models. Additionally, ideas of New Public Management, often supported
by experimental clauses in the legal codes of local self-government, and forms of
direct democracy have influenced the organisation of local government.
5.2. The council
In German public law, the council may receive different names: Rat, Ge-
meinderat, Stadtrat, Gemeindevertretung, Stadtverordnetenversammlung (or
Kreistag, at the level of the Kreise). Participation in the election of the council
is a fundamental right of all citizens – German as well as those of the European
Union, according to an E.U. directive which influenced Art. 28.1, paragraph 3
241
dian schefold
of the German Federal Constitution. Some Länder grant the right to vote to
persons age 16 and older. The electoral system, regulated by special laws on
local elections, is proportional everywhere, but in different forms, with more or
less influence of the electors. Political parties (at the federal and the Land level)
have an important influence, as do local associations of electors. While in
former years clauses of exclusion of very small parties (i.e., those receiving
under 5% of the votes) were frequent, recent constitutional case law has been
counter to them, rendering them ineffective.
According to the different legal codes of local government, the council is gen-
erally the highest governing body of the local community, with the number of
members proportional to the population, ranging from fewer than 10 to approxi-
mately 100, who are elected for a period of four to six years. The Mayor often
presides over the council, although sometimes there is a special president. There
are council commissions, some mandatory (as stipulated by the legal code) and
some set up independently, often regulated in autonomous statutes related to the
interior organisation of the council. Members of the council have the right to par-
ticipate. Those belonging to the same political party cooperate in a parliamentary
group and enjoy certain statutory rights. In cases of particular personal involve-
ment, council members are excluded from deliberation and decision-making.
As befitting its position, the powers of the council are, at least in principle,
comprehensive: the several State codes contain extensive lists of exclusive
powers. Nevertheless, there is a contradiction. In keeping with the idea of local
autonomy as part of the governmental structure, the council is not a legislative
governing body (see 4.2, above). Consequently, there should be a general pow-
er of the council in all matters affecting the local community and its administra-
tion. That was the starting point for the concentration of power in the early
post-war period. The practice, however, insisted on a limitation of the powers
of the council and the Mayor, introducing a kind of separation of powers and a
guarantee of the Mayor’s sphere of influence as head of the local administra-
tion. Furthermore, the directly-elected Mayor has his own democratic legiti-
macy and therefore a stronger position. Following these trends, the council has
the right of control, but not the general power to treat administrative matters.
There are powers reserved for the council, detailed on long lists enumerating
such tasks as internal affairs, elections, decisions on local statutes, budgets,
general problems of organisation (especially of public services and enterprises)
and territorial matters. But the interior organisation of the administration and its
individual concerns are powers reserved for the mayor.
5.3. The Mayor, deputy mayors and administration
Currently, the usual executive governing bodies in the municipalities are the
Mayor (Bürgermeister) and, where applicable, the administrative director
(Landrat) on the second-tier level of the Kreis. The latter is a civil servant,
242
elected by the local population (although in Baden-Württemberg and Sch-

leswig-Holstein the Landrat is elected by the council), for a period sometimes
equal to that of the council and often longer (five to 10 years). The dismissal of
the Mayor, by a qualified majority of the population voting in favour, is possi-
ble. Furthermore, following the old model of collegial direction (Magistrats-
verfassung: see 5.1, above), deputy mayors (Beigeordnete), as well as function-
aries elected by the council for a certain period and competent for certain tasks
according to the legal code or local statutes, may frequently serve as substi-
tutes. Sometimes, the Mayor and deputy mayors, together with some elected
members of the council, form a preparing committee (Verwaltungsausschuss)
for certain important administrative tasks. In this way the local administration
is always guided under the direction of the Mayor and/or the competent deputy
mayor. Nevertheless, there may be independent commissioners for certain tasks
(nowadays, especially for the equalisation of women) regulated either by the
legal code of the local governing bodies or by the autonomous decision of the
municipality. The legal obligation of larger municipalities to employ such com-
missioners has been established by constitutional case law.
The Mayor’s principal duty is the management of the local administration.
He prepares and executes the decisions of the council and decides certain mat-
ters immediately, especially current affairs and tasks legally delegated to him
(see 4.3, above). The importance of these tasks is controversial: tendencies of
New Public Management enforce it, while those of democratisation tend to re-
duce it. Furthermore, in the case of council decisions which violate the laws or,
according to some codes of local authorities, the interests of the municipality,
the Mayor may make his objections, demanding a second discussion in the
council or, in the case of illegality, a decision as a means of supervision (see 9,
below). Finally, it is the duty of the mayor and, in case of necessity, of his sub-
stitutes to represent the municipality in matters of public or private law.
5.4. Participation of citizens
The organisation of local governments must be viewed within the framework

that defines the role of citizens. All German citizens, and nowadays as per Euro-
pean law, the citizens of the European Union as well (see Art. 28.1, paragraph 3
of the Federal Constitution) have certain rights and obligations (in particular to
carry out honorary functions and to pay taxes and duties). Among the rights,
besides that of using local services and the above-mentioned right to elect the
council and the Mayor, there is a general right to co-determination in matters of
local self-government. Therefore, institutions such as citizens’ assemblies, hear-
ings, citizens’ requests and consultative votes are often regulated in the legal
codes, and they are possible even without formal regulation. But they may be
developed to formal rights of decision. In fact, this has been occurring more and
more in the legislation of the past 20 years in all the Länder and for all local
authorities, after the first steps taken in the 1950’s in Baden-Württemberg. Im-
243
dian schefold
portant local issues may be submitted to a popular vote, providing they are lim-
ited to those of municipal competence (i.e., not those of State competence), and
with exclusion of certain financially important affairs, planning decisions, etc.
Within this framework, a popular vote is binding if at least a minimum quo-
rum (normally 20% to 30% of the eligible voters) supports the decision. A vote
may be proposed either by the council or, in practice more importantly, by a
popular referendum. For this, a minimum quorum of signatures (between 1%
and 15%, depending upon the number of inhabitants of the municipality) is
necessary, and in addition to the aforementioned limitations of the issues to be
decided upon, certain formal conditions must be respected. On a referendum,
the council may decide in its favour – in which case the initiative is considered
successful and a vote is not necessary – or it may call a popular vote, which will
be decisive. Alternative proposals by the council are often possible. The regula-
tions differ in detail, and the experiences with the new instruments are not yet
complete, so the field is still undergoing development.
The overall scope of local self-government allows local communities to ex-

ercise their powers jointly, in cooperation with each other. The very limited
size of many local communities recommends such solutions or even makes
them necessary in order to accomplish certain local tasks. Thus, on the one
hand, and according to special laws of the Länder, the organisation of local
authorities includes the possibility of such cooperation, either by means of in-
formal working groups and simple agreements or through the creation of com-
mon public services or unions (Zweckverband) via inter-municipal contracts.
On the other hand, in most of the Länder, legislation may provide for some
forms of common organisation of small local communities, with an independ-
ent administrative organisation (Amt, Gemeindeverwaltungsverband) or the
designation of the common tasks to the administration of one of the participat-
ing communities (Verwaltungsgemeinschaft: see 2, above).
The problem with these solutions is that the common administrative organi-
sation – often under a special head – can scarcely be controlled by the different
participating communities and their councils. There is normally a controlling
body, but it is composed of the mayors or some members elected by the coun-
cils, without direct democratic legitimacy and separate from the local organisa-
tions responsible for the tasks not delegated to the common organisation.
Therefore the solution of the Amt was recently (26 February 2010) declared
unconstitutional by the Schleswig-Holstein Constitutional Court and will prob-
ably have to be modified.
Following older models, two Länder are attempting to mitigate these prob-
lems by organising for the small local communities (the Ortsgemeinden) and in
244
addition to them a common local level (always local and therefore distinct from
the Kreise) with a directly-elected council and mayor. In this way there are two
tiers of local communities. The higher tier (the Samtgemeinde in Lower Saxony
and the Verbandsgemeinde in Rhineland-Palatinate) takes care of the important
administrative tasks and has its own structure with a council, full-time mayor
and administration, while the lower tier consists of its honorary organisation of
council and mayor in the individual communities belonging to the Samtge-
meinde or Verbandsgemeinde.
6. HUMAN RESOURCES
Traditionally (and as confirmed by the Federal Constitution, Arts. 33.4 and

33.5), the German civil service has been organised with different types of public
servants stricto sensu (Beamte) for tasks of authority. In addition, for other tasks
the State and other public entities have their employees and workers, whose jobs
are regulated by collective contracts under labour law. The civil service in its
strong sense is regulated by laws at the levels of the Länder, and the civil service
of local self-government is chiefly regulated by the legislation of the Länder.
In local governments, the directing civil servants (Mayors, deputy mayors
and other positions of responsibility) belong to this category. As previously
explained (see 5.3, above), they are often elected and for a limited period of
mandate. It is especially for these civil servants of local authorities that the
category of civil servants with a limited (not lifetime) mandate has been regu-
lated in the respective laws. In these cases, employment takes place by means
of elections or by appointment in accordance with legal procedure.
The other members of local authorities’ staff are employed by the Mayor, act-
ing as the administrative head empowered to hire. Some members of this staff are
civil servants, while others are employees and workers. The employment proce-
dure is regulated by law but executed by the mayor. In former times, the State
authorities could exercise their rights of influence, but at present these have been
abolished or, with the exception of State supervisory power (see 9, below), are no
longer important. Salaries are regulated by law and through collective contracts,
taking into account the employees’ functions and the size of the municipalities,
but these regulations leave certain discretionary powers to the local authorities.
7.1. Distribution of tax-raising power
A federal State with local self-government is a multi-tiered system, with each

tier in principle having its own resources. But as German federalism is based on
the two tiers of Federation and Länder, the position of local self-government is
245
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weaker and attributed to the Länder (see Art. 106.9 of the Federal Constitution).
Although it is true that local communities have their own property and assets
(see 8, below) and statutory power (see 3.2 and 4.2, above), legislation, espe-
cially tax legislation, is reserved to the State, above all to the Federation. For
local taxes on consumption and expenditure, the power of the Länder is exer-
cised in enacting laws which transfer (and limit) this power to the local authori-
ties; such taxes, regulated in detail by local statutes, together with contributions
and fees constitute the principle source of local governments’ income. But the
distinction of consumption and expenditure taxes from federal taxes such as the
added-value tax is highly criticised and controversial. For instance, taxes on
dogs, on entertainment, and on second homes (for holidays) are admitted, while
a tax on packaging, for example, has been declared unconstitutional. More im-
portant are the tax revenues based on federal real estate laws on both immovable
and movable property, for which local authorities have the right to determine the
rate (see Art. 28.2, paragraph 3 of the Federal Constitution).
7.2. Tax revenues
The incomes from real estate taxation, together with those from local taxes,
are local governments’ most important resources of their own. They constitute
more than one-third of the resources for the municipalities, while the Kreise
largely depend upon the contributions paid by the municipalities. This is what
is meant by a local goverment’s «own» finances.
Local taxes are, however, in competition with income and added-value tax-
es and are therefore criticised and limited by State legislation and jurispru-
dence. Because of this tendency, measures have been taken to balance the
amounts of these taxations. On the one hand, the State levels (Federation and
Länder) receive a part of the real estate taxes. On the other hand, to equalise and
mitigate the consequences, local authorities have the right to participate in the
distribution of income tax revenues and, more recently, of added-value tax rev-
enues between the Federation and the Länder. But these tax revenues, regulated
by federal laws and perceived by the tax authorities of the Länder – a special
form of administrative organisation in cooperation with the federal and the
Land levels –, are primarily returns for the higher, rather than for the local,
levels. Therefore, their distribution, although clearly determined by certain
constitutional and legal principles, is nevertheless a political question and not a
basic right of local authorities. At present this participation constitutes approx-
imately 40% of municipalities’ tax resources.
7.3. Financial equalisation
In practice, to realize these transfers, there is an initial financial equalisation

at the federal level, to mitigate the differences of financial capacities between
246
the Federation and the Länder and among the Länder themselves. This equali-
sation, very controversial and influenced by political decisions, constitutional
rulings and even constitutional modifications, also includes the needs of local
authorities. But then the Länder, according to the Federal Constitution and to
their own constitutional principles, are obliged to carry out a similar financial
equalisation among the local governments, as well. For this purpose, there are
laws in every Land regulating the financial transfers from the central level to
that of the local authorities. They take into account the needs of the different
kinds of local governments and their concrete situations, using the instrument
of key and index numbers and providing for special subsidies in case of impor-
tant investments.
Obviously, the influence of such measures on the reality of local self-gov-
ernment is important. They may be used as «golden controls» (see 4.2, above)
and in that way limit local authorities’ decision-making freedom. Furthermore,
in a period of limited public resources, legislators may be greatly tempted to
reduce local authorities’ financing, either diminishing the conceded amount or
making those governing bodies responsible for the accomplishment of certain
tasks and thus determining the priorities of local self-government. An obliga-
tion such as providing a place in kindergarten for every child is a classic exam-
ple, and such a task may be justified as one characteristic of a social State and
therefore the consequence of the principle of equality.
But the question remains as to whether such developments can and should
limit local self-government. To protect that institution, recent constitutional de-
velopments, at both the federal and the Länder levels, provide for a principle of
connexity which guarantees the local authorities additional financial resources
if they are required to fulfil additional tasks [to wit, Art. 106.8 BL, similar to
related articles in the Constitutions of, for example, Bavaria (Art. 83.3), North-
Rhineland-Westphalia (Art. 78.3) and Rhineland-Palatinate (Art. 49.5)]. Fur-
thermore (though with exceptions), the Federation has been excluded from
charging local authorities directly, leaving this power to the Länder (Art. 84.1,
paragraph. 7 BL). The efficacy of such rules, however, may be contested and is
doubtful: are the Länder better protectors of local self-government than the
Federation? Also, what task is an inadmissible «extra burden» for local au-
thorities? Thus, the interpretation and the effects of the new regulation remain
problematic, but one must admit that at least they are now being discussed.
As a result of the system described above, it can be said that the regulation
of local governments’ financial resources remains unsatisfactory, in terms of
the insufficiency of their guarantees. Among the problems of financing public
tasks, a tier participating without decisive power in the decision-making proc-
ess necessarily remains weak. In the conflict between the constitutional guaran-
tees of the social State on the one hand, and of local self-government on the
other, the result of the balancing may always be criticised. One may ask, as
well, whether the courts should decide these problems and replace the neces-
sary political decision and setting of priorities.
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8.1. Ownership of property and assets
As subjects of law and as legal entities, local communities and the Kreise
are entitled to own property, a very important part of exercising the rights of
local self-government. In fulfilment of their tasks, all local communities must
manage their property, which can take the form of roads, squares, parks, schools
and public buildings, as well as houses built by local authorities to provide
apartments for residents in need of them. To the extent to which local authori-
ties exercise economic activities, they may own the relevant property and as-
sets, such as factories and technical and commercial plants. The property may
belong to the local community per se, but especially for economic activities, the
owner being an organisation as a separate legal entity is normal and frequent.
In such situations, the direct owner may be a legal entity of either public law (an
institute) or private law (a company under commercial law), and the local com-
munity is the owner of this entity or its shares, often jointly with other entities,
which is a frequent form of inter-municipal cooperation.
8.2. Limitations
As a key instrument of local self-government, the property of local commu-

nities is limited, the same as in other fields of local administration, especially
by the framework of laws (see 4.2, above). All the legal codes of local com-
munities contain rules concerning their property and assets. They limit the ac-
quisition of goods as well as their alienation, with respect to the local tasks and
diligent municipal administration. Criteria of this kind allow for State supervi-
sion, to control the activities and to take any necessary measures. Especially
critical cases (e.g., the sale of property below the real value) are subject to the
permission of the supervising authority. Regulation is part of the very detailed
rules concerning the budget, which allow the control and ensure the transpar-
ency of local finance.
As a rule, special limits are set for the economic activities of local authori-
ties if they are in the local public interest, as part of the tasks of local self-gov-
ernment; nevertheless, they are limited to protect the financial situation of local
communities and of their residents, for general economic reasons and (a very
controversial point) perhaps for the interests of private economic rivals, as well.
The trend of these policies may change. Whilst during a longer period there was
a tendency towards privatisation (based on political choices and the need to
improve local finances), recent tendencies are more cautious and underline the
necessity of guaranteeing essential local services.
Other limits result from the intended use of certain types of property, espe-
cially roads (and, in a similar way, waters). Their function for public use is
248
determined by State (both federal and regional) laws, which establish a public
regime for their use. It is possible (and is the practice in Hamburg) to combine
that regime with private property, establishing a kind of domaine public, influ-
enced by the French concept, but the normal solution in Germany is the combi-
nation of private road ownership (normally belonging to public legal entities)
with its designation (Widmung) for public use, regulated by public law.
The aforementioned limitations illustrate that local communities as owners
have a different position from that of private owners. They are owners in the
sense of civil law and are thus protected by the guarantee of local self-govern-
ment, but one may ask whether the guarantee of private property also protects
them. The question has been decided, in a negative decision, in a complaint
made to the Constitutional Court (Verfassungsbeschwerde), which has ruled
that it does not protect the property of local authorities as such, but only the
fulfilment of local authorities’ assigned tasks.
9.1. The leading principle
As stated above, local self-government is guaranteed in the framework of leg-

islation (see 3.2 and 4.2, above). Therefore, local authorities’ appropriate applica-
tion of the laws must not be controlled. Nevertheless, in terms of the legality of
the activities, there is a control as to whether the limits of local self-government,
and concretely the relevant laws, have been observed. This control is normally
administrative, but in addition to that, the control of the budget and audit (again
according to the legal provisions and within their limits) is first the task of the
auditors at the local level and then of the competent authorities of the Land.
But in addition to the tasks of local self-government, local authorities ac-
complish tasks delegated by the State (Land) (see 4.3, above) or at least com-
pletely regulated by legislation, which may provide the State with power to
give directives. As far as such activities are concerned, the local authorities
form part of the State administrative hierarchy. They must follow and execute
not only the laws but also the directives of the higher authorities in their respec-
tive areas of administration, which may determine the appropriateness of the
application of the laws, as well. Therefore, these forms of supervision are dif-
ferent and thus require separate treatment.
9.2. Supervision of legality
With respect to local self-government, the control exercised by the supervis-

ing authorities is limited to «questions of legality». This concept, however, is
ambivalent and accentuated by the fact that many measures of control, e.g.,
249
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«public interest», «urgent necessity» or the principles of urban planning, are

very general. This is why, especially as far as such measures are concerned, the
legal codes often prescribe the need for consent (permission) from the supervis-
ing authority. On the other hand, a control of this kind obviously restrains self-
government; therefore, there is a tendency to reduce the cases of such permis-
sion or to simulate its having been granted if the authority does not respond to
a request within a certain period of time. One may argue that the principle of
local self-government supposes a policy «friendly» to local authorities (ge-
meindefreundliches Verhalten) that may be seen in close connection with the
principle of proportionality.
The exercise of this supervision lies with the Minister of the Interior (of the
Land), for the large cities and as the highest authority, but delegating the task,
in most cases, either to an intermediate tier (Mittelbehörden: Regierungspräsi-
dent) in the larger Länder such as Bavaria and North-Rhineland-Westphalia
and/or to the Kreise, which exercise this power as a delegated task under the
supervision of the higher tiers. The instruments of control are regulated in the
legal codes of local communities. There is a general right to information, the
right to object, the right of cancellation, the right to prescribe certain measures
and to take substitutive ones, and finally, the right to name a special commis-
sioner and to dissolve the council. These instruments illustrate that, certainly
with respect to the principle of proportionality, there are rights established by
administrative jurisprudence to suspend an illegal action or to enforce a legally
necessary action of local authorities. But all these acts of supervision are ad-
ministrative in nature and may therefore be contested by means of a lawsuit
before the administrative tribunals, who then decide whether the suspension or
the enforcement of a given act may be upheld. Furthermore, citizens’ lawsuits
against illegal acts of local authorities and demands for the exercise of supervi-
sion may induce such measures. The Federation, which has no power to super-
vise local authorities, can demand that the respective Land exercise supervi-
sion, by means of a lawsuit before the Federal Constitutional Court, if necessary.
9.3. Supervision in case of delegated powers
If local authorities, usually the local administration, carry out their delegat-
ed powers, they are subordinate to the State administration in the respective
sphere, e.g., the Ministry of the Interior (if it is question of public security), but
often to other Ministries, such as that of Social Security, if their powers are in
question. Therefore, the relevant governmental agency has the right to give di-
rectives to the local authorities and to determine their action, with all the neces-
sary instruments. It may even seem consequent to contest the possibility of ju-
dicial review of such directives on the lawsuit against the local authority, as
such a review corresponds to the interior sphere of administration. Neverthe-
less, this question is very controversial, especially since according to the con-
250
cept that qualifies mandatory tasks with directives as local tasks (see 4.2,
above), one may argue in favour of a limitation of local self-government, even
if it is mandatory tasks under directives that are under discussion. But if an act
of a local authority within the sphere of delegated powers is contested by a
citizen, the control of the appropriateness and legality of the act is first exer-
cised by the higher tier of administration and may therefore be used as an in-
strument of supervision.
9.4. Informal and technical coordination
In addition to these different constructs, it must be emphasised that the field

of action of local authorities is determined largely by coordination measures
taken by the heads of administration of the different spheres, which coordinate
at the federal, Länder and local levels, all influenced by a common administra-
tive style and culture. Furthermore, such cooperation supported by the com-
mon organisations of local authorities (see 2, above) harmonises activities
within the local administrations, although sometimes at a certain distance from
the State levels.
10.1. Ordinary legal protection
Although the principle of local self-government is a question of administra-

tive organisation regulated in the chapter of the Basic Law regarding the Fed-
eration and the Länder and is thus institutionally guaranteed, it nevertheless
constitutes a right of local authorities and is guaranteed by the Federation (as
per Art. 28.3 of the Federal Constitution). Therefore, it is protected, especially
by administrative jurisdiction (Verwaltungsgerichtshoff). If a local community
or authority is limited in its right to self-government, it may bring an action
before the administrative tribunal, and the tribunal will determine whether there
has been a violation of law. For the sphere of local self-government, this pos-
sibility is evident, while in the sphere of delegated State powers the possibility
of court protection is doubtful (see 9.3, above).
Furthermore, if the question of the constitutionality of a law limiting local
self-government is raised within the context of another lawsuit, the court which
is judging the principal case will have the power to rule on that case but will
submit the question of regarding the constitutionality of the challenged law to
the Constitutional Court. In case of the application of the contested rule by the
competent court, the question of whether the affected local authority can for-
mulate a claim for constitutional review is not clear. Even though local self-
government enjoys a constitutional guarantee with its specific protection, it is
not a fundamental right protected by the ordinary constitutional lawsuit.
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Apart from the guarantee of local self-government, the legal relations within
a local community may give rise to other legal issues. The legal codes of local
communities create many rights within the systems of local government, in fa-
vour of the council, the Mayor, commissions, groups of the council, etc. If such
rights are contested or violated, there can be lawsuits between the local com-
munity’s governing bodies which, although strictly speaking they are not legal
entities, have the right to defend their position in a conflict (Organstreit) be-
tween such bodies.
10.2. Constitutional review
In addition to the regular or ordinary jurisdictional protection of local gov-

ernment, the law regarding the Federal Constitutional Court (section 91) and
Art. 93.1, paragraph 4b of the German Federal Constitution provide for a spe-
cial action on the part of local authorities against laws violating the right to lo-
cal self-government. If a violation of this kind is involved, the Constitutional
Courts decide upon the compatibility of the law with the guarantee of local self-
government; in case of unconstitutionality, the law is declared null and void. In
this way local authorities have the special power to ask for constitutional re-
view of such a matter. If a Land is involved and if the legislation of the Land
provides for it, the Land’s Constitutional Court gives its ruling; otherwise, the
Federal Constitutional Court will rule. The jurisprudence in this field is quite
important. It has had an influence on, amongst other matters, the question of the
merger of local communities, and in that way has established the procedural
rights of local communities in the preparation of laws that may influence local
self-government.
As a union of States, the European Union, in principle, did not take care of
either the internal territorial subdivisions or the systems of local self-govern-
ment within each State. This situation has been eased since the Treaty of Maas-
tricht, and the Treaty of Lisbon (especially Art. 4.2) recognizes the regional and
local structures. At the same time, that means that the creation and forms of
these structures remain the exclusive responsibility of the individual member
States and are not regulated by European law.
Therefore, as a consequence of the Treaty of Maastricht, Germany has en-
acted two satutes connecting the federal internal structures (the Parliament,
Bundesrat, Länder) with the European decision-making process. As a conse-
quence of the Treaty of Lisbon, the Federal Constitutional Court has condi-
tioned its approval of the constitutionality of the Treaty with a more effective
guarantee for the participation of the internal structures; therefore, the two
252
laws have been modified and completed by a third (Integrationsverantwor-

tungsgesetz, of 22 September 2009). These laws give extensive rights and pos-
sibilities to joint determination not only to the federal Parliament but also to
the Länder and the Bundesrat. However, they are influenced by the idea that
the level of local authorities is part of the Länder. It is the task of these to pro-
tect local self-government, while local authorities themselves have only a very
limited influence.
The consequences for the local authorities of the described system may be
summarised as follows: according to the law, local self-government must be
protected, and in questions of local services (see 4.1, above) the position of the
Bundesrat will have a decisive influence, which may be especially important
for the European law of services of general interest and of public enterprises.
But the direct participation of local authorities is not guaranteed.
A similar result must be stated for the European Union’s Committee of Re-
gions. The 24 German members to be proposed by the German government are
presented by the Länder governments, so that every Land has at least one rep-
resentative. But according to the aforementioned law, there must be a proce-
dure that guarantees a proposal of three representatives by the three national
associations of local authorities (see 2, above), so that each of them is repre-
sented. There is no representation of the individual local communities at all,
however.
These solutions make evident that the participation of local authorities in the
decision-making process of the European Union is linked with their influence
on decision-making in Germany. In this sense, the associations of local au-
thorities have a certain influence, through their right to be consulted in the
parliamentary process and by the governments, but they have no decisive vote,
and the individual local authorities as such have no influence.
12.1. Leading case law
Germany’s very rich legislation, its different forms of legal protection and its
judicial system lead to an enormously diversified case law, handed down from
the Constitutional Courts of the Federation and the Länder and from administra-
tive courts, and for some questions (representation of the local communities in
legal relations), from ordinary courts, as well. To give some examples:
– The leading case on the extent of self-government, especially the concept
of local affairs, direct responsibility, legal limitations and the essence of
self-government (see sections 3 and 4, above) is a ruling by the Federal
Constitutional Court of 23 November 1988, BVerfGE 79, 127 (especially
143 and ff.).
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dian schefold
– A consequence of the precedent: the unconstitutionality of the obligation

for local authorities to fulfil certain tasks jointly with State authorities (see
4.1 and 4.2, above): ruling of 20 December 2007, BVerfGE 119, 331 (360
and ff.). Nevertheless, a common financing which leaves the fulfilment of
the task to the individual local authorities has been approved: ruling of 7
February 1991, BVerfGE 83, 363 (376 and ff.).
– Equality of local elections and the polemical issue of a 5% clause for them
(see 5.2, above): ruling of 13 February 2008, BVerfGE 120, 82 (102 and ff.).
– Constitutionality of a law obliging local communities to establish a com-
missioner for equalisation of women (see 5.3, above): ruling of 26 Octo-
ber 1994, BVerfGE 91, 228 (236 and ff.).
– Problem of legitimacy and thus unconstitutionality of the Amt for inter-
municipal cooperation (see 5.5, above): Constitutional Court of Sch-
leswig-Holstein, ruling of 26 February 2010, Norddeutsche Zeitschrift für
Öffentliches Recht 2010, pp. 155 and ff. (cf. before Federal Constitutional
Court, ruling of 24 July 1979, BVerfGE 52, 95, 109 and ff.).
– Importance of and polemic regarding local taxation, especially the sales
tax and its rate (see 7.2, above): ruling of 27 January 2010, BVerfGE 125,
141 (153 and ff.).
– Guarantee of private property for local communities (see 8.3, above): rul-
ing of 8 July 1982, BVerfGE 61, 82 (100 and ff.).
– Legal protection of local self-government, especially in case of the merger of
local communities (see 10.2, above): Constitutional Court of Mecklenburg-
Vorpommern, ruling of 26 July 2007, Deutsches Verwaltungsblatt 2007, pp.
1,102 and ff. and Landes- und Kommunalverwaltung 2007, pp. 457 and ff.
12.2. Bibliography: manuals and treatises
– The leading handbook is the Handbuch der kommunalen Wissenschaft

und Praxis, 1st ed. (ed. Hans Peters), 3 vol. Berlin 1956-1959; 2nd ed. (ed.
Günter Püttner), 6 vol. Berlin 1981-1985; 3rd ed. (ed. Günter Püttner/
Thomas Mann), only vol. 1 published, Berlin 2007.
– For practical purposes, shorter manuals are more important, e.g.:
Burgi, Martin: Kommunalrecht, 3rd ed., München 2010;
Gern, Alfons: Deutsches Kommunalrecht, 3rd ed., Baden-Baden 2003.
– Handbooks of special administrative law (Besonderes Verwaltungsrecht)
usually include presentations of local government. For instance those
written by:
Tettinger, P.J.; Erbguth, W. & Mann, Th.: 10th ed., Heidelberg 2009;
254
Schmidt-Assmann, Eberhard & Röhl, Christian: 14th ed., Berlin 2008;

Seewald, Otfried in: Steiner, Udo (ed.), 7th ed., Heidelberg 2003;
Schröder, Meinhard & Dittmann, Armin in: Achterberg, Püttner, Wür-
tenberger, 2nd ed., Heidelberg 2000.
– Additionally, there are commentaries on the legal codes of local commu-
nities of all the Länder, along with manuals for most of them, e.g.:
Gern, Alfons (for Baden-Württemberg): 8th ed., Baden-Baden 2001;
Knemeyer, Franz-Ludwig (for Bavaria): 12th ed., Stuttgart 2007;
Ipsen, Jörn (for Lower Saxony), 4th ed., Stuttgart 2011;
von Mutius, A. & Rentsch, H. (for Schleswig-Holstein): 6th ed., Stuttgart
2003.
– For local politics, two important works are:
Wollmann, Hellmut: Reformen in Kommunalpolitik und –verwaltung,
Wiesbaden 2008;
Kost, Andreas & Wehling, Hans-Georg (eds.): Kommunalpolitik in den
deutschen Ländern, 2nd ed., Wiesbaden 2010.
12.3. Law reviews
In addition to the major reviews of administrative law (such as Die öffentli-

che Verwaltung, Deutsches Verwaltungsblatt and Neue Zeitschrift für Verwal-
tungsrecht), there are some specifically for local government, such as Landes-
und Kommunalverwaltung, and others for the administrative law of nearly all
of the individual Länder (e.g., Bayerische Verwaltungsblätter).
(a) The federal government (Ministry of the Interior), although not compe-
tent for the law of local self-government, is involved with its interna-
tional representation (Council of Europe, etc.) and therefore for com-
parative and collective presentation: see its website at: www.bmi.bund.
de/DE/Themen/OeffentlDienst/Verwaltung.
(b) More relevant are the websites of the Ministries of the Interior of the
individual Länder. They can normally be found under the name of the
Land adding .de. Some examples:
– www.innenministerium.baden-wuerttemberg.de
– www.bayern.de/. www.innenministerium.bayern.de
– www.hmdis.hessen.de
– www.mi.niedersachsen.de
– www.nordrhein-westfalen.de. www.im.nrw.de
– www.sachsen.de.
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– www.smi.sachsen.de.
– www.kommunale-verwaltung.sachsen.de.
(c) For the local situation of individual towns, their websites may be inter-
esting, as well. Furthermore, for the general situation of local communi-
ties and their authorities, the websites of the associations of towns, of the
other local communities and of the Kreise (see 2, above) are interesting:
– Deutscher Städtetag: www.staedtetag.de
– Deutscher Städte- und Gemeindebund: www.dstgb.de
– Deutscher Landkreistag: www.landkreistag.de.
(d) Research institutes:
– Deutsche Institut für Urbanistik: www.difu.de
– Kommunale Gemeinschaftsstelle für Verwaltungsvereinfachung: www.
kgst.de
256
Chapter 11:
LOCAL GOVERNMENT IN GREECE
Nikolaos-Komninos HLEPAS
1. BRIEF HISTORIAL EVOLUTION
1.1. Local government in a unitary «napoleonic» state
The consolidation of the Modern Greek state after 1833 was connected to
the imposition of centralism and the abandonment of an old autonomist tra-
dition that characterized the kind of fragmented society typical of many
countries under Ottoman rule.1 In a country used to numerous centres of
power, no such centre could accept the rule of the national government. The
iron hand of the Bavarian regents was the only one that managed to abolish
thousands of historical communes (koinotites) and unify them in some 450
demoi (municipalities). Furthermore, the territory of the newborn state was
divided, following the French model, in 10 prefectures (nomoi). The prefects
were appointed by the King and were responsible for supervising the mu-
nicipalities.
Immediately following the victory of Constitutionalism in 1844, local self-
government was established as an important arena for party competition and an
indispensible source of democratic legitimacy. Unlike the French model, how-
ever, the accumulation of mandates was never accepted and a clear distinction
was made between the political personnel at the national level (MP’s, minis-
ters) and at the local level (mayors, councillors) political personnel was made.
Both categories were important for the kind of backstage localism that charac-
terised Greek politics and rounded off the majority-based, polarised and strictly
representative political system of the country.2 Especially after the introduction
in 1864—for the first time in Europe—of universal suffrage, the directly elect-
ed mayors could further fortify their influence.
Koliopoulos and Veremis, 2002.

1
Hlepas, 2003, p. 221.

2
257
nikolaos-komninos hlepas
In 1912, the innovative liberal statesman Eleftherios Venizelos, trying to

oppose clientelism and corruption but also following a romantic ideology that
demanded the return back to the roots of Hellenism, ordered the revival of the
communes (koinotites). In this manner, government was fragmented into 70
demoi (cities and towns of more than 10,000 inhabitants) and more than 5,000
communes (the smaller towns and villages)—the latter depending on state
grants.
Like other southern European states, Greece experienced long periods of
political instability, civil war and dictatorship. Centralism was further enhanced
and was accompanied by hierarchical and authoritarian rule. After the estab-
lishment of a stable democratic system in the 1970’s, again as in other southern
European countries, Greerk efforts to democratise the political system, identi-
fied the overcoming of centralism as a major challenge and necessity on the
road towards Europeanization and the modernisation of state and politics.
1.2. Never–ending reforms?
Although important decentralisation reforms were continually initiated from

the early eighties onwards, it is obvious that Greek socialists were not really
willing (or really able) to eliminate the dominant, historically rooted centralist
patterns of state, party and social hierarchies.
Up to the mid 1990’s, local governmental reforms in Greece were focused
instead on the decentralization of responsibilities, on political healing after a
long period of authoritarian state rule, on broadening legitimacy and on foster-
ing political stability. However, by the late 1990’s the State tried to cope with
low efficiency in local government, promoting the most remarkable reform of
this period: the «Capodistrias Plan» was not only a plan to merge municipali-
ties, but also a national and regional development and works programme, with
a time scope of five years (1997-2001).
Nevertheless, a considerable number of the new municipalities still seemed
to be too small to exercise several additional responsibilities (local police, mi-
nor harbours, etc.) which were then transferred to the first tier of local govern-
ment. Metropolitan areas that had been exempted from amalgamations were
suffering from ongoing fragmentation into a large number of municipalities
(Greater Athens included more than 120 municipalities). Second-tier local au-
thorities were too small and too weak to support municipalities and assume
supra-local functions (especially those related to local development projects,
whereas both tiers lacked financial resources and specialized staff. Public criti-
cism targeted maladministration and corruption, while the traditional system of
state supervision proved to be incapable of preventing the wide-spread illegal
practices by local authorities that were disappointing the citizenry. The follow-
ing table shows the number of prefectures and municipalities in 2008:
258
local government in greece
Table 1
Number of prefectures and municipalities in Greek regions (2008)
REGIONS PREFECTURES MUNICIPALITIES

«Peripheria» «Nomarchia» «Demos» or «Koinotis»
Eastern Macedonia-Thrace 2 55
Central Macedonia 7 134
Western Macedonia 4 61
Epirus 4 76
Thessaly 4 104
Ionian Islands 4 39
Western Greece 3 74
Central Greece 5 95
Attica 3 124
Peloponnese 5 107
North Aegean 3 36
South Aegean 2 58
Crete 4 71
TOTALS 50 1,034
Source: Ministry of Interior (2008).
After an impressive victory in the elections of 2009, a strong socialist gov-

ernment with an ambitious reform program had to face an unprecedented finan-
cial crisis. The new ruling majority decided to use radical local government
reform as remedy against the crisis. A new, thoroughly-prepared reform plan
called «Kallikrates», was presented for public consultation in January 2010,
and a new law, radically changing the structure and operation of local govern-
ance, was adopted that May. The «Kallikrates» Plan calls for the compulsory
merging of local government units, leading to the reduction in the number of
municipalities (demos) from 1,034 to 325, while the second tier has been ele-
vated to the regional level with the formation of 13 regional local authorities, or
peripheria, instead of the former 50 PSG’s. At the same time, the de-concen-
trated state administration has been restructured at an even higher level, includ-
ing seven units (apokentromeni diikesi). This new structure of state and local
government, with fewer entities, conforms more closely to the Lisbon Treaty
principles.
259
The new reform is the first one including both tiers of local government and
de-concentrated state authorities. Furthermore, territorial consolidation is
linked to the extensive decentralization of responsibilities and resources. Spe-
cial emphasis is being given to the goals of efficiency and economies of scale,
modern management of human and financial resources and improvement of
service and professional quality. Furthermore, this reform is following basic
principles and objectives of new public management, such as systematic con-
trol and overall supervision, accountability and transparency. The simplifica-
tion of structures—many fewer units at three levels of governance—is expected
to increase multi-level and cross-departmental cooperation that will lead to bet-
ter coordination and effective steering.
Table 2
Number of de-concentrated administrations, regions and municipalities (2011)
DE-CONCENTRATED REGIONS MUNICIPALITIES

ADMINISTRATIONS «Peripheria» «Demos»
Macedonia-Thrace Eastern Macedonia-Thrace 22

Central Macedonia 38
Western Macedonia-Epirus Western Macedonia 12
Epirus 19
Thessaly-Central Greece Thessaly 25
Central Greece 25
Peloponnese-Western Greece-Ionian Ionian Islands 7
Islands
Western Greece 19
Peloponnese 26
Attica Attica 66
Aegean North Aegean 8
South Aegean 34
Crete Crete 24
TOTALS 13 325
Source: Ministry of Interior (2008).
After the «Kallikrates» reform, the average population of Greek munici-

palities became one of the highest among those of European countries (mean
value of 31,000 inhabitants). In view of these facts, the territorial rescaling of
Greek municipalities becomes even more impressive:
260
Table 3
Distribution of municipalities by orders of magnitude prior to (2010) and
following (2011) the implementation of the «Kallikrates» reform
Population Municipalities 2010 % Municipalities 2011 %
< 5,000 548 53 45 14

5,001-10,000 259 25 26 8
10,001-50,000 186 18 192 59
50,001-100,000 31 3 49 15
> 100,000 10 1 13 4
TOTALS 1,034 100 325 100
Source: Ministry of Interior, 2011.
The Constitution of June 1975 of the Third Republic (1974 to the present)
ensures the twofold incorporation of local government into the democratic sys-
tem: on the one hand, democratic procedures and rules for putting into practice
the sovereignty of the people at the local level, e.g., «through universal suffrage
and secret vote» (Art. 102 par. 2) are introduced; on the other hand, the Consti-
tution itself defines a significant part of the executive function, that is, the man-
agement or administration of local affairs, as the exclusive responsibility of
local government authorities (Art. 102 par. 1). Thus, local government could be
described as a blending of local policy and local administration. The Constitu-
tion clearly prescribes a balanced relation between these two fundamental com-
ponents: decision-making competence and available resources should, conse-
quently, render possible the formation of a «local political will» and its
transformation into management of local public affairs.3
The notion of local affairs, in conjunction with a system of multi-level local
government, is supposed to limit the competence of stricto sensu state adminis-
tration and therefore the share of executive power which this concentrates.
The Constitution of 1975 is characterized by particularly detailed regula-
tions of local government. Nevertheless, these regulations leave very wide mar-
gins for the options of the ordinary legislator. The latter is, however, restricted
today by the provisions, with force superior to that of domestic legislation (Art.
28 of the Constitution), of international and European law.
From international law, particularly worth noting is the European Charter of
Local Self-Government (ECLSG), which was ratified by Act 1850/1989. Ac-
3
Hlepas, 2003: 225.
261
cording to its provisions, indirect election can be introduced only for «execu-
tive» organs (Art. 3, III) of local government, while the «right» of local au-
thorities to «adequate resources of their own» of which they «dispose freely»
and which must be «proportionate to their competence»’ (Art. 9, I and II) is
reinforced. Nevertheless, Greece has excluded the application of the ECLSG
for second-tier local government, while reservations have been made concern-
ing Art. 5 (protection of territorial structure), Art. 7 par. 2 (sufficient allow-
ances), Art. 8 par. 2 (supervision) and Art. 10 par. 2 (local government associa-
tions).
Furthermore, it is obvious that detailed constitutional rules on local govern-
ment in Greece do not necessarily put traditional centralist patterns into ques-
tion, since state competence for important subjects of public policy (education
and health systems, environmental protection, physical planning, economic de-
velopment, etc.) is explicitly consolidated by the Constitution (e.g., in Arts. 21,
16, 24 and 106), while local government lacks taxation and regulatory autono-
my. More precisely, Art. 78 of the Constitution safeguards the so-called «taxa-
tion monopoly» of the parliament (whose plenary law defines subjects and per-
centages of and exemptions from taxation), whereas Art. 102 par. 4 imposes
correspondingly on the State the duty of ensuring the necessary resources for
local authorities. In addition, delegation of legislative power from the parlia-
ment to local government authorities is subject to the same rigid substantial and
procedural rules that were drawn up by the Constitution (Art. 43) for any «or-
gan of the executive function» (e.g., ministers, boards, etc.). This means that
the delegation of legislative power is allowed only if it happens by parliamen-
tary act and only if it refers to «special matters» or «subjects of detailed or
technical character or of local interest» (Art. 43 par. 2).
Accordingly, the case law of the Greek Conseil d’Etat (Symvoulio Epikra-
tias, the supreme administrative court) emphasizes that local government com-
petence for «local affairs» (Art. 102 par. 1, see above) refers only to single ad-
ministrative decisions and not to normative acts (local norms of general
character), which are subject to the restrictions of Art. 43 par. 2, just as they
apply to any other organ of the executive function. Furthermore, the Conseil
d’Etat rejected the delegation of new responsibilities from the state to local
government, whenever these responsibilities refer to «important sectors of pub-
lic policy», which are assigned, by the Constitution itself, exclusively to the
state (e.g., physical planning, environmental protection or the status of teachers
in public schools).
After the last constitutional amendment (2001), the new version of Art. 102
of the Constitution attempts to facilitate delegation of State responsibilities to
local authorities and declares that the exercise of certain State powers and re-
sponsibilities may be delegated to local authorities by law, provided that the
corresponding resources are also transferred (par. 1). Nevertheless, some new
attempts to delegate State competence on physical planning to local authorities
262
faced once more the negative approach of the Council of State, which declared
that «important» State duties (such as the protection of sensitive environmental
or cultural goods) could not be transferred to local government. The back-
ground of such court decisions seems to be a fundamental mistrust of the will-
ingness of local authorities to protect the environment and/or to restrain from
partisan practices in other public policies of national interest, such as education.
Furthermore, the aforementioned case law underlined the need to safeguard
the distinctive role of de-concentrated State authorities in implementing State
policies at a sub-national scale. While in some countries it is considered un-
necessary for the government to set up field offices of its own, the prevailing
view in Greece argues that the implementation of major government policies
and their adaptation to local circumstances should be entrusted to de-concen-
trated State administration, thus safeguarding an unbroken line of unitary po-
litical responsibility and control through the central government that is trusted
by the national parliament. This is the reason why the Constitution itself (Art.
101) establishes a State administrative system based on de-concentration and
provides for the existence throughout the country of de-concentrated units, in
favour of which a presumption of competence for «peripheral» (sub-national
but not local) State affairs has been introduced (Art. 101 par. 3).
The same holds true for the territorial structure and organisational of local
government. While the 1975 version of the Constitution provided for two types
of first- tier local government (demos for the cities and koinotes for the villages),
the amendment of 2001 abolished constitutional guarantee of these types and
simply stated that two tiers of local government exist, without further specialising
what these tiers are. Furthermore, according to the prevailing views in legal sci-
ences, the law can change the limits and types of local governmental authorities
for reasons of public interest, following objective criteria. The discretionary pow-
er of ordinary law over the territorial structure and organizational form of local
government is quite broad, especially when the efficiency of existing structures is
considered poor. For this reason, the amalgamation reforms of 1998 and 2010
(see above, parts 2 and 3) did not face any serious legal difficulties.
To counteract inefficiency, the 2001 version of the Constitution included an
alternative to obligatory amalgamations and explicitly allowed the establish-
ment by law of obligatory municipal associations that could assume a series of
local governmental duties, rather than simply the provision of services or the
construction of public works, as provided by the 1975 version of the Constitu-
tion. Furthermore, the boards of these associations should consist of «elected
persons» (Art. 102 par. 3) as members, while the old version provided for the
representation of all member municipalities on the board.
State supervision over local authorities is explicitly restricted exclusively
to the control of legality; moreover it «should not impede initiative and free-
dom of action» (Art. 102 par. 4). State supervision is traditionally deemed
necessary, in order not only to endorse state unity and the harmony of law
263
implementation, but also to protect civil rights from local arbitrariness and to
prevent litigation. The Constitution includes provisions for disciplinary meas-
ures against holders of political posts in local government (e.g., mayors, coun-
cillors, etc.), who can be suspended or even «deposed» (fired), provided that a
disciplinary body, whose majority of members are ordinary judges, will pre-
pare a corresponding binding opinion (Art. 102 par. 4). Supervision over local
authorities also includes a system of fiscal controls. More precisely, the Court
of Audit is entitled by the Constitution (Art. 98 par. 1) to control expenditures
as well as contracts (for cases in which these contracts refer to «high financial
cost»). In several cases, this financial auditing exceeds a simple legality check
and moves towards an advisability control. It is argued that advisability con-
trol of local government expenditure is not prohibited by the Constitution,
since to a large extent local government revenue stems from central State mon-
ey (see below).
The principal statutory laws in Greece concerning local government are the
Municipal Code (Act 3463/2006) and the so-called «Kallikrates» law (Act
3852/2010) that refers to the recent reform. A new Local Government Code
that refers to both first- and second-tier local authorities is currently being
drafted. Furthermore, the Code of Municipal Employees (Act 3584/2007), the
laws on hiring employees (Act 2190/1994 and 3812/2009), the ministerial stat-
ute on procurement (56294/2009) and the law on municipal police (Act
3731/2008), as well as the recent law on transparency (Act 3861/2010), should
be mentioned.

AUTHORITIES
Despite the numerous efforts of decentralization reforms, centralist tradition

still seems to prevail in Greece. Not only major, but also sometimes even minor
decisions tend to be taken at the highest administrative or political level. Some
of the most important public service delivery systems, such as public education,
public health services and social protection, are still subject to direct and com-
prehensive control by the central government. In addition, legislation and regu-
lation often go into great detail.
The «Kallikrates» reform is an ambitious and comprehensive project, in-
cluding both tiers of local government and the regions. Simplification of these
structures (fewer units at these territorial levels) is expected to increase multi-
level cooperation that can facilitate coordination across and within the new
administrative units. Furthermore, territorial consolidation is combined with
extensive decentralisation of responsibilities and resources. In fact, munici-
palities are receiving a considerable number of tasks (especially those con-
cerning the licensing of enterprises and economic activities) previously as-
signed to the—now abolished—prefectures. Second-tier local governments
264
(the new Regions) have assumed important responsibilities concerning eco-

nomic and regional development. With respect to the de-concentrated state
administration, the «Kallikrates» plan provides for restructuring at a supra-
regional level, including seven units (the so-called «de-concentrated adminis-
trations»), headed by a secretary general appointed by the government. These
seven «de-concentrated state administrations» are mainly responsible for envi-
ronmental protection (forest administration, regional planning, water manage-
ment, etc.). The principal responsibilities of local government are presented in
the following table:
Table 4
Main tasks of local government in Greece (2011)
Municipalities (Demos) Regions (Peripheria)
A. Housing, infrastructure and community amenities

– construction, maintenance and management – construction, maintenance and management
of municipal roads, parks and public spaces of provincial roads
– initiating urban planning, housing, building – implementation of public works programs
licensing and control – planning, licensing and control of transpor-
– traffic regulation and planning tation (buses, trucks)
– public parking
– licensing and control of vehicles
B. Environmental protection
– waste management, water supply, irrigation – environmental impact assessment
and sewage systems – waste management planning
– protected areas – environmental controls and fines
– environmental controls and fines
– renewable energy
C. Education
– construction of school buildings – vocational training
– maintenance and management of school – adult education and life-long learning
buildings and facilities
– transportation of public school pupils
– adult education
– vocational training
D. Recreation and culture
– municipal cultural centres/museums cultural centres and institutions
– cultural and sports facilities sports facilities
E. Social protection
265
Municipalities (Demos) Regions (Peripheria)
– nurseries and kindergartens, – application of social programmes; establish-

– centres for the elderly and disabled ment of centres for social services
– social inclusion programmes – licensing and control of social workers
– licensing and control of private welfare in-
stitutions and private care units
– social welfare subsidies (e.g., for the disa-
bled, the poor and minors)
F. Health
– local medical centres – licensing and control of health/medical in-
– public health protection and controls stitutions, laboratories and professions
– licensing and control of health/medical in-
stitutions
G. Economic affairs and development
–
licensing and control of local shops and – regional development planning and policies
small enterprises (tertiary sector) – implementation of development pro-
–
municipal enterprises and development grammes
agencies – regional enterprises and development agen-
– licensing and control of local economic ac- cies
tivities and professions – evaluation and subsidy of private invest-
ment projects
– support and monitoring of economic activities
in the primary, secondary and tertiary sectors
H. Public order and safety
– municipal police – emergency planning and coordination
I. General public services
– registration and certification of civil status – registration and certification of civil status
– organisation of elections – organisation of elections
– one-stop shops for public services
According to the «Kallikrates» law (Act 3852/2010), island municipalities

will assume additional responsibilities, especially those related to fishing,
transportation and small enterprises, as will regions with metropolitan areas,
especially those related to transportation and the environment in Athens and
Thessaloniki.
With respect to powers given by law to local authorities, it should be pointed
out that local government is considered an integral part of the executive function
and public administration. Local authorities are therefore subject to the same le-
gal restrictions and entitled to use the same legal instruments as other components
of public administration. Thus, Law 2690/1999 on administrative procedure is
266
also implemented by local authorities. Their actions include local rulemaking,

provided that a parliamentary law entitles them to do so, since local authorities
lack normative autonomy. Municipalities and regions are entitled to expropriate
private property for reasons of public interest and impose fines or other sanctions
(e.g., for illegal parking), following more or less the same rules that apply to cor-
responding actions by the State administration. Their decisions are subject to
State supervision and judicial control by administrative courts.
5.1. Introduction. The «Kallikrates» reform
The basic organisation of municipalities in Greece has traditionally em-

bodied a dominant role of the mayor within the municipality. The Municipal
Code (Act 3463/2006 - MC) includes certain basic regulations, many of
which have been changed and completed through the «Kallikrates» reform
law (KL). More accountability, increased transparency and greater participa-
tion by the citizens in local issues are expected to upgrade the performance
of local government. To this end, «Kallikrates» stipulates that local authori-
ties are obliged to make public all their decisions on the Internet. The estab-
lishment of a local ombudsman (Sibarastatis) in every municipality to sup-
port citizens is another attempt to reduce mismanagement and eliminate
sources of corruption, as this institution will examine relevant allegations. Α
consultation committee—consisting of several representatives of local stake-
holders, e.g. local businesses, trade unions, chambers and NGOs—will also
be created in municipalities with more than 10,000 residents, and this should
facilitate a more efficient allocation of municipal resources according to lo-
cal needs. Among the new institutions that the «Kallikrates» law has created
stand the following ones: (a) the executive board (a kind of city cabinet),
which will monitor and coordinate the implementation of municipal poli-
cies; (b) the finance committee, which will be responsible for financial plan-
ning and control as well as for public procurement; and, finally, (c) the qual-
ity of life committee (in municipalities with more than 10,000 residents),
which will be responsible for environmental, city planning and certain li-
censing matters.
In the law, the municipal council, the financial committee, the quality of life
committee, the executive board and the mayor are cited as «municipal authori-
ties» (Art. 7 KL). Municipalities which have a population greater than 2,000
inhabitants have, in addition, one to ten deputy mayors (Art. 59 KL), majority
councillors who are appointed as deputy mayors by mayoral decision and are
responsible for a certain section of municipal activities and a certain sub-divi-
sion of the municipality (an ex-municipality that has been amalgamated or a
sub-municipal commune in large cities). These deputy mayors, the mayor and
267
the chief executive officer of the municipality are the members of the executive
board, which is the governing organ of the municipality.
5.2. The municipal council
The municipal council has general competence and decides upon all mat-
ters apart from those which belong legally to the mayor, the executive board,
the financial committee or the quality of life committee (Art. 85 KL). Never-
theless, by a decision of the absolute majority of all the members of the mu-
nicipal council, certain of its responsibilities can be transferred to the quality
of life committee, if these responsibilities are related to the purpose of this
committee (e.g., environmental affairs). Furthermore, it is also possible to set
up special committees on which even private individuals can serve in order to
deliberate and make proposals on specific issues that are to be discussed at the
municipal council. The municipal council has a three-member praesidium
(president, vice-president, and secretary), which it elects from among its mem-
bers for a two-year term. While the president is a member of the majority, the
vice-president comes from the major opposition and the secretary from the
minor opposition. Depending upon the size of the population, the municipal
councils consist of 13-49 members, to which, however, the chairpersons of
sub-municipal councils are added in the case of municipalities resulting from
amalgamations.
Table 5
Numbers and sizes of municipal councils and committees
Municipal Members of Members of the

Population the Council Financial/ Quality of Life Committee
Under 2,000 13 7/7

2,001- 5,000 17 7/7
5,001-10,000 21 7/7
10,001-30,000 27 7/7
30,001-60,000 33 9/9
60,001-100,000 41 9/9
100,001-150,000 45 9/9
More than 150,000 49 11/11
The sessions of the municipal councils are public, held at least once a month
and are convened by the mayor, the financial committee, the quality of life
committee, or one-third of the total number of its members. It is worth drawing
268
attention here to the phenomenon of the conformism of the municipal councils,

manifested chiefly in large municipalities, where these organs with their many
members are forced—due to the extent of their competence—to decide on a
large number of issues without the possibility of effective discussion. All the
decisions of the municipal councils are enforceable as soon as they are issued
(signed); they are published on the Internet and are sent to the state supervising
authority, which also carries out, at the first stage, the relevant review of legal-
ity (see below, point 9).
5.3. The mayor
The mayor represents the municipality, executes the decisions of its collegial
organs and is head of the staff and services of the municipality, which he directs
(Art. 58 KL). Of particular importance, moreover, are the duties exercised by the
mayor in function of his dual role as an organ of the state in matters related to
military conscription (registration of males), elections, registrations, etc. It is
worth noting that the mayor is not a member of the municipal council, but he is
invited to its meetings and takes part in its debates, while he may require the in-
clusion of specific matters on the agenda. In nearly all municipalities, the mayor
is assisted by deputy mayors, who deal with a particular area of the municipality’s
activities and exercise the duties of the mayor when delegated to them by him.
The mayor and the members of the municipal council are elected directly by
the registered residents (and by those citizens of the European Union or third-
country aliens who reside permanently in the municipality) for a five-year term.
Every candidate running for mayor leads a list of candidates for all the seats on
the municipal council. The law explicitly prohibits candidates who are not on
such a list from standing, as well as the use of party, religious, or ethnic sym-
bols in the emblems of the municipal lists. Nevertheless, the political parties
officially announce the names of the candidates who have their support.
The chief objective of the electoral system is to ensure governmental stabil-
ity within the municipalities. Thus, the list of candidates that wins the local
elections occupies automatically three-fifths of the seats on the municipal coun-
cils, while the runners-up are restricted to a slender two-fifths minority. Only
the list obtaining absolute majority of all the valid ballots achieves victory in
the elections, even at a second run-off between the two lists that received the
most votes in the first round. In this way lists that are supported by the most
parties are encouraged to stand in municipal elections; nevertheless, last-minute
deals, that is, between the first and second rounds, are not uncommon. It is,
however, worth noting that this electoral system, in conjunction with the fact
that the mayor, elected for a five-year term, does not need the declared confi-
dence of the majority of the municipal council, contributes to the conditions for
a «monocracy» of the mayor in the municipality, particularly in cases where he/
she has a strong personality.
269
Municipalities with more than 100,000 residents, as well as those of more

than 2,000 which consist of former municipalities that have been amalgamated
(see below), are subdivided into municipal «communes» or districts, where
councils are elected. In these councils, seats are occupied according to the re-
sults of the elections within the whole municipality. Each of these councils
elects its president from among its members, and this official is entitled to take
part (including with voting rights) in municipal council sessions, whenever a
matter directly affecting his/her own municipal commune is being debated and
decided. Depending on the local population size, the councils of municipal
«communes» include 5-15 members and have several local responsibilities, in-
cluding decisions on local open-air markets, some small local enterprises, etc.,
while the municipal budget is obliged to include specific budget lines explicitly
referring to each one of the municipal «communes».
As said above, local authorities that are the result of amalgamating former
«independent» municipalities are also sub-divided into local «communes», if
they have fewer than 2,000 residents. Here, three-member councils of local
communes are elected. In smaller villages of more than 300 inhabitants, a sin-
gle local representative is elected. The main difference between these local
«communes» as compared to the aforementioned municipal «communes» is the
fact that their councils or local representatives are elected in proportion to the
results of the elections held within them.
5.4. Organisation of the Regions
Within the Regions («Peripheries») that were newly established as second-

tier local governments, horizontal power relations seem to follow traditional
patterns assumed from first-tier local governments (municipalities). The princi-
pal regional organs are the head of the region («peripheriarch»), the deputy
peripheriarchs, the regional council (41-101 members, depending on popula-
tion size), the executive board and the financial committee (Art. 113 KL). The
head of the region (peripheriarch), the deputy peripheriarchs in former prefec-
tures and the regional council are directly elected for a five-year term. The
electoral arrangements reflect the aforementioned system implemented in mu-
nicipalities (see above), which means that an absolute majority is required for
victory, even in a second run-off election, between the two leading candidates.
The roles and competences of the peripheriarch, the regional council, the ex-
ecutive board and the financial committee follow the aforementioned patterns
in municipalities (see above). Regional ombudsmen and regional consultation
committees assume their respective roles and responsibilities at the regional
level, just as their municipal counterparts do (see above). A distinction must be
made concerning directly elected deputy peripheriarchs, since they are legally
responsible for regional services and policies affecting the former prefectures.
The peripheriarch can, furthermore, appoint three additional deputy periphe-
270
riarchs at his/her own discretion. All deputy peripheriarchs are responsible for
a certain segment of regional activities, with powers delegated to them by spe-
cial decision of the peripheriarch. It is also worth mentioning that the regional
council can constitute up to two committees and delegate to them respective
responsibilities of their own, including decision-making.
5.5. Inter-governmental cooperation
Cooperation across levels of local government—whether municipal, region-

al or inter-municipal—is being regulated and encouraged by the Law. Coopera-
tion including both tiers of local government is nowadays explicitly foreseen by
law, providing for the (voluntary) establishment of cross-level associations
(diavathmidiki sindesmi, Art. 105 KL), which can deal with public works, serv-
ice provision, fulfilment of concrete tasks or implementation of development
programs and projects. Especially within the Attica Region, a special, obliga-
tory cross-level association has been established for waste management, while
in each region of the rest of the country, a special, obligatory inter-municipal
association carry out this function. Inter-municipal associations (diadimotiki
sindesmi) can also be created on a voluntary basis to deal with public works,
service provision, fulfilment of concrete tasks or implementation of develop-
ment programs and projects. The law also offers a wide range of contracting
and networking possibilities to both municipalities and regions.
Municipalities and regions can become also participate in «contracts of in-
ter-municipal or cross-level cooperation», in which one part can offer support
to the other part and/or fulfil some of its tasks (Art. 99 KL). Quite common are
the so-called «program contracts» (Art. 100, programmatikes simvasis), related
to concrete projects (e.g., development projects, construction, etc.), in which
not only local but also other public authorities (including universities) and pub-
lic sector entities (public companies, etc.) can take part. Finally, municipalities
and regions can also be members of more informal cooperative schemes, such
as «networks» (Art. 101 KL, diktia) with goals of public interest (including
networks with foreign local governments).
6. HUMAN RESOURCES
The civil service system in Greece is a career system: civil servants are re-
cruited at the lower echelons and advance through promotions at the higher
levels of bureaucracy. The current constitutional status for civil servants is also
applied to employees of local government authorities (Art. 103 par. 6 of the
Constitution). Civil servants are tenured and are obliged to maintain political
neutrality. On the whole, the formal status of the staff under local authorities,
although governed by a special code, is similar in its major aspects to that of the
271
staff of the State civil service. However, the administrative units of local gov-
ernmental authorities have many unique characteristics and are usually smaller
in size.
Public sector personnel, including those in central government and its de-
concentrated units, and in self-governing corporations, are classified into dif-
ferent categories and grades. Categories are determined according to level of
education and professional and specialised skills and may require specific
qualifications. Grades and posts are not automatically linked: for example, a
grade A (a high grade) employee does not necessarily hold the post of a unit
head. Apart from seniority, a civil servant level of education and the results
of performance appraisals are important criteria for the advancement of his
career.
In addition to the established civil servants, local authorities employ people
on a contractual basis, i.e., through private legal contracts of indefinite or fixed
duration, and they can also conclude private legal contracts for specific jobs
that must be carried out (the so-called «project» contracts). Employees with
private legal contracts of fixed duration are to be recruited in order to meet
temporary, unforeseen or urgent service requirements.
For budgetary reasons, restrictive measures on the hiring of public sector
personnel were introduced at the beginning of the 1980’s; nowadays, due to the
financial crisis and IMF controls, they have been tightened even further. Up to
the beginning of this century, however, local governments were able to hire
personnel through their municipal companies or, to a certain extent, on an ap-
proved private contractual basis. For some years, municipal employees (espe-
cially the ones employed in the garbage collection service) working on a tem-
porary contract basis would go on strike in order to obtain by special law the
status of employees with private legal contracts of indefinite duration, who can
be fired only with difficulty. Through such methods, the number of municipal
personnel climbed from 25,000 employees at the beginning of the 1980’s up to
50,000 by the late 1990’s and has currently reached an astonishing 100,000
employees (including those of municipal companies). It should be pointed out
that clientelistic methods did not favour the quality of personnel: due to these
practices, many municipalities employed great numbers of people but lacked
qualified employees such as engineers, economists, accountants, public health
inspectors and computer specialists. On the other hand, second-tier local gov-
ernments hired a much smaller number of employees (fewer than 20,000), since
they lacked possibilities of contracting for such basic services as waste man-
agement, kindergartens, homes for the elderly, etc.
In view of such problems, the amended Constitution explicitly prohibits giv-
ing tenure or changing the temporary status of contracts with employees of the
public sector. On the other hand, in 1994 the selection procedures for the staff
(the «‘human resources») of local government were made subject to an inde-
pendent body, the High Council for the Selection of Personnel (or ASEP, in its
272
Greek acronym). This independent authority oversees the selection process and
ensures respect for the principles of merit, impartiality and transparency. Now-
adays, selection takes place by competitive examination or by means of a point
system, depending on the specialties and qualifications required. Successive
laws have tightened up recruitment procedures and the system of contractual
appointments in order to prevent over-staffing and to guarantee impartiality and
merit. Recruitment procedures, however, require considerable time to be car-
ried out. For this reason, recruitment procedures have recently been de-concen-
trated, while ASEP simply supervises, ex post, the legality of these procedures.
Apart from rigid legal restrictions imposed upon hiring, local government
has practically no possibility of developing a human resource management sys-
tem of its own. Negotiations between employees and employers are organized
nationally, given that salary increases and other claims are settled at the level of
central government.
However, the mayors managed to by-pass legal restrictions and the com-
petence of ASEP regarding the hiring of personnel, mainly through their cli-
entelistic contracting practices. In fact, a presidential decree adopted by the
center-right government in 2004 allowed tenure to be granted to long-time
employees on contract, particularly when the beginning of such contracts pre-
dated the constitutional amendment of 2001, which prohibited such tenure. In
this way, approximately 40,000 contracted employees received tenure, while
only a few hundred municipal public servants had been hired during the pre-
vious decade, in keeping with the legal provisions and procedures controlled
by ASEP. The outcome was not only the virtual marginalisation of ASEP but
also, as already pointed out, the overloading of local government with thou-
sands of low-skilled personnel.
In view of the current «Kallikrates» reform and the decentralisation of
numerous tasks, it is obvious that municipalities and regions need additional
high- and/or specially-skilled personnel. Mobility across levels of govern-
ment has been encouraged or even mandated by the «Kallikrates» law. How-
ever, only a few hundred employees have been willing or forced to move to
the new municipalities and regions. In view of the acute economic crisis, the
great majority of civil and public servants is nowadays deeply frustrated and
discouraged: financial cutbacks have been focused mainly on the salaries of
public sector employees, given the large number in public employment and
its impact on the public deficit. Public sector trade unions have quite often
proved to be successful in blocking or undermining reform procedures, while
recently unions have protested vehemently against austerity policies through
numerous general strikes. Any sound implementation of the reform, and es-
pecially any internal restructuration, decentralisation of tasks and resources
and new modes of administrative operation, require great flexibility (i.e., new
tasks and mobility across levels), consensus and active cooperation of admin-
istrative personnel.
273
In Greece, local government revenues and expenditures form a very low

percentage of GDP. Taxation autonomy at both tiers remains limited. Their
total share of public expenditure is one of the lowest in Europe4. More specifi-
cally, in 2005 the two tiers of local government expenditure amounted to 3.1%
of GDP in 2005 and 6.6% of total public expenditure. Local government reve-
nue (5.6 billion Euros) reached 3.1% of GDP and 7.5% of total public sector
revenue.5
As already mentioned, revenues from taxation do not make local govern-
ment self-sufficient (Art. 78 of the Constitution), and thus the Constitution (Ar-
ticle 102 V)) imposes on the State the duty of concerning itself with ensuring
the necessary resources. The law, however, also provides for independent rev-
enues, over which local authorities have some control, and transfers from gov-
ernment, which allocates a proportion of certain national taxes and also makes
grants to them. Transfers are usually more important, but the reverse may be
true in towns. Local government corporations, as public law legal entities, pos-
sess private and public property, compile a budget and balance sheet, are sub-
ject to special restrictions as to their expenditures, are subject to special provi-
sions as to their accounting systems, and are monitored in terms of public
finance by the Court of Audit (Art. 98 of the Constitution), while most of them
form their own service unit for their funds. Through the «Kallikrates» law, the
role of the Court of Audit has been upgraded. Apart from controlling local
spending, the Court of Audit will henceforth control contracting in excess of
100,000 Euros and monitor the proper collecting of municipal and regional
revenues. Finally, a special «stability and financial control program» has been
initiated by the «Kallikrates» law, affecting the (few) municipalities that have
reached a high level of municipal debt.
With regard to spending, it should be mentioned that investment expendi-
ture is not totally featured in local government budgets. Local investment ex-
penditure is to a great extent funded by the State and from E.U. structural funds,
but the corresponding resources do not always appear in local budgets. It is
therefore very difficult to have an accurate image of the financial situation of
local government in Greece.
By law, the revenues of local government can be divided into the categories
of «ordinary» and «extraordinary» Ordinary revenues are derived from:
(a) taxes, duties (ordinary and user charges), royalties and contributions
(b) income from municipal/communal/ prefectural property
(c) statutory resources and regular subsidies from the State budget.
4
Heinelt and Hlepas, 2006.
5
DEXIA 2008: 352.
274
Extraordinary revenues are derived from:

(a) loans (only 2% of total revenues), gifts, bequests and inheritances
(b) selling (or «privatising» property)
(c) extraordinary subsidies from public agencies
(d) funding from the E.U. or other international organisations
(e) any other source.
The revenues of local government can also be categorized into «independ-
ent revenues» and «transfers». For the municipalities, the most important
sources of revenue are waste management and cleaning taxes, road and street-
lighting taxes, the tax on beer, property taxes and several fees for services, such
as those levied for the use of markets, cemeteries, slaughter-houses, etc. In
several coastal areas, the tourist tax is an important source of revenue. The road
and street-lighting tax is assessed on the area occupied (or used, in the case of
business premises), multiplied by a set factor that differentiates between resi-
dential and business premises. Property tax is assessed on floor area and takes
into account the location (i.e., the value of the area) and the state of the building
(i.e., the rental value as appraised by the national tax department). The national
electricity company collects these two taxes as well as those for waste manage-
ment and cleaning duties for the local authorities when electricity bills are paid,
which ensures a very high rate of collection. Other taxes and fees are levied
directly by local authorities, with the exception of the beer tax, which is levied
by the state and repaid to them. Since 1994, local authorities have been able to
adjust the factors applied to property to determine the sum due, and this gives
them some power in tax matters. An Act passed in 2000, however, again re-
duced this room for manoeuvre considerably, since the factors applied may not
increase tax above the inflation rate. It should be noted that official data on total
independent revenues of the local government corporations have not been pub-
lished for the last several years, resulting in rather incomplete information.
Second-tier local governments depend even more upon state grants. They
have small budgets, essentially based on transfers from the central state budget,
but make little use of some of the powers conferred on them by law because
they are still not sufficiently organised to collect taxes, charges and duties, or
because their politicians fear that the citizenry would protest against over-taxa-
tion. Independent revenues would, however, give the second tier more freedom
of action. Compensatory fees, charges and rates can be levied by second-tier
councils for services or works which help to improve quality of life, provide the
public with better services and develop the area covered by the provincial ad-
ministration. This option seems to be little used, although it would make it pos-
sible to raise independent revenue to fund specific projects.
Taxes, fees, charges and rates set by law are a negligible part of second-tier
revenues. Ordinary resources come principally from special grants and the so-
called Central Autonomous Funds (see below). Extraordinary revenues, such as
275
fees for the use of works financed by loans (used to repay those loans) or loans
are little used, while second-tier local governments also generally receive little
in the way of national or E.U. grants.
For the great majority of local governmental authorities, revenues that cover
ordinary expenditures have come mainly from the Central Autonomous Funds
(CAF), that is, the share of local government in revenues of the State budget
(collected by State services). More specifically, the CAF grants have been de-
rived from:
(a) in the case of municipalities and communes:
– the income tax of natural and legal persons (20%), subject to deduction of
a third of that 20%, which is used to cover investment expenditure
– 50% of revenue from the annual vehicle road tax
– 3% of property sales tax
– 20% of revenue from the tax on bank interest.
(b) in the case of the second tier:
– 15% of revenue from the annual vehicle road tax
– 10% property sales tax on buildings, building sites and agricultural land
– 2% Added Value Tax (VAT)
– 4,5% licensing tax on passenger vehicles, trucks and buses circulating for
the first time
– taxes for carrying out technical vehicle inspections.
The CAF grants are first assigned to major spending areas and then distrib-
uted to individual local governments on the basis of population size, road net-
work and level of social services. There seem to be, however, some major distor-
tions in the use of the population criterion: the official population in some major
cities is sometimes 20-40% lower than the real one. This kind of discrepancy
seriously interferes with equalisation, an aim of the centralised funding of local
authorities. CAF grants are divided into the «Regular Grant» (RG) for operating
expenditures and the «Public Investment Specific Programme Grant» (PISPG),
which finances specific projects (see: DEXIA 2008: 357). Apart from the CAF
grants, Greek local governments also receive compensation, global investment
and earmarked grants. The latter cover expenditures in specific areas such as
transportation costs for pupils and illness and welfare support grants.
It is a fact that second-tier local authorities have depended almost com-
pletely on State grants (95% of total revenue). This has constrained the discre-
tion of elected officials over budget distribution, since about one-third of CAF
and an important proportion of other State grants are reserved for investment
expenditure. Municipalities have had far more discretion, since 32% of mu-
nicipal revenue (compared to only 3% of second-tier revenue) have stemmed
from their own fees, taxes and charges.
276
Table 6
Revenue and expenditure of local government in Greece (in millions €, 2004)
Municipalities Second tier (prefectures)
Revenues
own taxes, fees, own taxes, fees,
state grants total state grants total
charges, loans charges, loans
3,957 1,862 5,819 1,242 43 1,285

(68%) (32%) (97%) (3%)
Expenditures
capital current total capital current total
887 4,298 5,185 474 797 1,271

(17%) (83%) (37%) (63%)
Source: National Statistics Service 2005
The unprecedented financial crisis and the austerity policies imposed by the
new stability programme have enforced rigid budgetary cuts throughout the
public sector. The «Kallikrates» plan is expected to reduce the total spending of
local government by nearly 20%, mainly through reduced personnel costs. At
the same time, the «Kallikrates» law has changed the composition of State
transfers to local government. More precisely, according to this law and the
2011 budget, first-tier local governments will to receive 12% of VAT, 20% of
income tax and 50% of real estate tax, while second-tier local governments will
receive 4% of VAT and 2,4% of income tax. If all other revenues are taken into
account, in 2011 local government revenues are going to reach a sum total of
9.8 billion €, while local government expenditures are expected to drop to 9.3
billion € (according to the 2011 State budget).
Municipalities have important assets (e.g., town halls, streets, parks and
physical infrastructure). Streets, parks and squares are for public use, while
municipal commonwealth buildings (town halls, kindergartens, schools etc.)
are regarded as municipal public property with a special legal status. Many
municipalities possess considerable private property (especially real estate,
but also stock shares, etc.) which must be managed appropriately. Respective
actions (selling, buying, leasing, etc.) must be approved by the municipal
council and are subject to further substantial and procedural restrictions (ten-
dering, etc.). Second-tier local authorities do not have similar assets, apart
from provincial roads, while their property (especially real estate property) is
negligible.
277
As a rule, the general systems of monitoring Greek public administration are

also applied to local government. Thus, different bodies and institutions perfom
control and supervision of local authorities:
– the courts
– the auditors of public administration
– the Inspector-General of public administration
– the national Ombudsman, and
– the newly established municipal and regional Ombudsmen,
This complex system of controls is completed by State supervision, which is
provided for in the Constitution itself (Art. 102 par. 4). Given the fact that the
traditional scheme of State supervision through Secretaries-General appointed
by the central government had proved to be party-politicized and inefficient,
the «Kallikrates» law established a «special supervision service» (SSS) in each
one of the seven de-concentrated administrations. Each of the seven SSS’s is
headed by the Auditor of Legality (AL), a person of high skills and authority,
selected after a competitive tender. Furthermore, the SSS’s are hiring highly-
skilled personnel especially lawyers, economists and engineers, in order to en-
sure a high level of legal control.
A number of administrative decisions (especially those concerning ten-
dering, local rules, loans, expropriation, tax and fee levies, local govern-
ment property, etc.) of the collective organs of the local government corpo-
rations (councils, committees, etc.), public-law bodies and companies
established by local government are all forwarded to the Auditor of Legal-
ity, who reviews them and cancels illegal acts and decisions (Art. 225 KL).
The Auditor of Legality can also cancel any other illegal act of any local
government organ or entity, including local corporations. Moreover, any
person having a legal interest may appeal to the Auditor of Legality against
any act of a collegial or single-member organ of a local government entity,
with the exception of enterprises. In this case, following a corresponding
application, the Auditor of Legality can suspend the execution and enforce-
ment of respective acts and decisions, provided that he/she has ruled that
this appeal has «solid reasons» and this person will suffer serious, irrevers-
ible damage if the act should be executed and enforced. It is worth mention-
ing, that this kind of appeal is a prerequisite for filing a lawsuit (should this
appeal be rejected) in the courts (Art 228 KL) In this way, the overloading
of administrative courts with appeals against local government decisions is
expected to be in check.
State supervision is, of course, exercised over the persons who make up
the organs of the local government corporations via the so-called «discipli-
nary» supervision. Thus, the Auditor of Legality, by a reasoned decision on
278
his/her part and with the consent of a five-member special council, imposes
certain penalties on them. These are, more specifically, suspension for up to
six months for a serious dereliction of their duties or the exceeding of their
competence by deliberate action or extreme negligence, and forfeiture (or
downfall: ekptosi) of office in certain cases stipulated by law (e.g., arbitrary
absence or abstention from their duties). The legislation also provides for
the penalty of dismissal «for grave reasons of public interest»; this is im-
posed, with the consent of a special council, by a decision of the minister
(Art. 237 KL).
It should be noted that all these special disciplinary councils meet in public
and are comprised of a majority (three of the five members) of regular judges,
while a representative of the Association of Local Government Corporations
serves as a member. The relevant procedure involves a defence, representation
by legal counsel and examination of witnesses. Recourse against a disciplinary
decision is possible only by appeal to the Council of State, which also judges
the case as to its substance.
Regarding the protection of local government, it should be pointed out

that Greece lacks a constitutional court, and a special remedy for local au-
thorities is not foreseen by law. The question of constitutionality can, how-
ever, be addressed by any court, and local authorities can, of course, invoke
their constitutional and further legal status whenever they appeal against
state decisions (e.g., the decision of state supervisory authorities or the audit
court, or in appeals against court decisions at a higher court). As public law
entities, local governments have all the substantial and procedural rights
which apply to such entities, while they can also refer to fundamental rights
applicable to private entities, whenever their private property rights are in-
volved.
Greece is entitled to have 12 representatives in the committee of the regions

of the European Union: 12 full members and 12 alternate members. the greek
representation includes a fair balance of the local and regional levels of govern-
ment.6
6
The Greek delegation includes four mayors, two municipal councillors, four heads of re-
gions, and two councillors of regions. Source: Committee of the Regions Website: http://www.
cor.europa.eu.
279
12.1. Landmark case law
Important decisions on local government in the case law of the Council of

State (Simvoulio Epikratias—StE):
– StE 3194/1990: Territorial structure of local government is subject ordi-
nary law which can merge municipalities for reasons of public interest.
– StE 108/1991: Municipal enterprises of water supply and sewage may be
organized according to private law, but when they impose fees and duties,
they function as public law legal entities. For this reason, such acts are
subject to judicial review by the administrative courts.
– StE 1484/1997: Municipal police tasks, such as imposing fines for illegal
parking, cannot be subcontracted to private enterprises, since police tasks
belong to the core of public power.
– StE 3444/1998: The Constitution provides for the existence of de-concen-
trated field offices of State administration. «Peripheral» state administra-
tion cannot be totally abolished or substantially downgraded by law. Ma-
jor public policies entrusted by the Constitution to the State cannot be
delegated to local governments.
– StE 3661/2005: discusses the notion of «local affairs» (Art. 102 par. 1 of
the Constitution)
Bessila-Vika, Evridiki: Local Government, Athens, Sakkoulas 2010 (in Greek).

Hlepas, N.-K.: «Local Government Reform in Greece», in: Kersting, N., Vet-
ter, A., (eds.): Reforming Local Government in Europe. Closing the Gap
between Democracy and Efficiency, (Opladen: Leske+Budrich), pp. 221-
239. 2003,
Hlepas, N.-K.: The Mayor. Vol. 1: The Mayor as an elected leader, (Athens:
Papazisis) 2005 (in Greek).
Hlepas, N-K. & Getimis, P.: Greece: A case of fragmented centralism and
‘behind the scenes’ localism, in: Loughlin, J., Hendriks. F., and Lidström,
A., (eds.): The Oxford Handbook of Local and Regional Democracy in Eu-
rope, (Oxford: Oxford University Press), pp. 414-432 , 2010
Sigouris, Panos: The «Kallikrates» programme, Vol. 1 and 2, Athens 2011 (in
Greek).
Dexia, 2008, Sub-national Governments in the European Union, (Paris: Dexia
Editions).
280
Getimis, P. & Hlepas, N.-K.: «Efficiency Imperatives in a fragmented Polity:

How Greece re-invented its Local Government System», in: Baldersheim,
H., Rose, L. (eds.), Territorial Choice: The Politics of Boundaries and Bor-
ders, Palgrave Macmillan, Houndmills, Basingstoke, 2011 (forthcoming).
Heinelt, H. & Hlepas, N.-K.: «Typologies of Local Government Systems», in:
Back, H., Heinelt, H., Magnier, A., (eds.),The European Mayor, Verlag für
Sozialwissenschaften, Wiesbaden, 2006, pp. 21-42.
Hlepas, N.-K.: «Local Government Reform in Greece», in: Kersting, N., Vet-
ter, A., (eds.), Reforming Local Government in Europe. Closing the Gap
between Democracy and Efficiency, (Opladen: Leske+Budrich), 2003, pp.
221-239.
Hlepas, N-K. & Getimis, P.: «Greece: A case of fragmented centralism and
‘behind the scenes’ localism», in: Loughlin, J., Hendriks. F., and Lidström,
A., (eds.), The Oxford Handbook of Local and Regional Democracy in Eu-
rope, (Oxford: Oxford University Press), 2010, pp. 414-432
Ministry of Interior: Bulletin of Statistical Data, (Athens: National Printing Of-
fice), 2007 (in Greek)
Ministry of Interior: The Kallikrates Reform Program, (Athens: National Print-
ing Office), 2010 (in Greek)
Sotiropoulos, D.: State and Reform in contemporary Southern Europe:
Greece-Spain-Italy-Portugal, (Athens: Potamos), 2007 (in Greek).
Spanou, C.: «L’institution préfectorale en Grèce : De la Déconcentration à la
Décentralisation». Revue française d’administration publique, no 96, octo-
bre- décembre 2000, pp. 597-608.
www.eetaa.gr (Municipal Agency for Local Development)

www.enae.gr (National Association of Second-Tier Governments)
www.kedke.gr (National Association of Municipalities)
www.hellenicparliament.gr (Greek Parliament)
www.peta.gr (a «mixed» municipal enterprise with research activities)
www.primeminister.gr (Office of the primer minister)
www.ste.gr (the supreme administrative court)
www.uehr.gr (a research institute of the University of Panteion, Athens)
www.ypes.gr (Ministry of the Interior)
281
Chapter 12:
LOCAL GOVERNMENT IN HUNGARY
Zoltán SZENTE
After a long tradition of autonomy of the royal counties and «free royal mu-
nicipalities» rooted in the medieval ages, the idea of modern local and regional
self-government appeared in Hungary before the civic revolution of 1848,
when the feudal monarchy came to an end. Nevertheless, the first local govern-
ment laws were passed only after the so-called Compromise of 1867, which
established the dualist monarchy of Austria−Hungary and provided political
autonomy for Hungary in her inner government. Act No. XLII of 1870 founded
municipal and county self-governments with elected councils. Another act of
Parliament also recognised the self-government of communities for smaller set-
tlements.1
These pieces of legislation basically established a two-tiered system of
local government in which the municipalities, depending upon their size and
capacity, had the different legal statuses of boroughs and communities, while
county governments (63 since 1886) existed at the regional level. This dual-
level structure of local government2 was retained during the existence of
Austria−Hungary (1867-1918), gradually extending the scope of local and
regional administration and, through these organisations, the role of govern-
ment.
After World War I, the territory of the country was dismembered to a great
extent by the Peace Agreement of 1919. But, in spite of the tremendous loss of
territory, through which the number of counties was reduced from 63 to 25, the
actual borders of the remaining counties were not changed, waiting for their
1
Act No. XVIII of 1871.
2
Until 1983, in the counties, there were so-called districts (járás), which existed as admin-
istrative units of the counties covering the territory of a number of local councils. Their division
was often changed, and their numbers varied between 83 and 150 units from 1950 to 1983.
283
zoltán szente
reunification. The county system was rationalised only in 1950, when the Com-
munist regime introduced a Soviet-type council system changing the borders of
the restructured 19 counties. The new arrangement of regional and local admin-
istration consisted of a highly centralised, two-and-a-half-tier system. At the
basic level, local councils possessed the general competence of public adminis-
tration. Their number was gradually reduced, as in the 1960’s and 1970’s a
great number of municipalities (usually small villages) were merged into larger
units, thereby losing their own councils.
The traditional counties, as territorial self-governments, were also trans-
formed, with the creation of the county council also modelled on the Soviet
pattern. The 19 county councils were the extended arm of central departments
at the regional level, mediating the central government’s policy towards the lo-
cal councils.
From 1950 to 1971, between the local and the county councils, approxi-
mately 140−150 so-called district councils3 (járási tanácsok) existed to per-
form specialised administrative functions. Although they also had elected
councils, the whole system could not be regarded as three-tiered, since after
1954 only the communes were subordinate to them. In 1971, the district coun-
cils were transformed into State administrative units and were deprived of their
elected councils (these offices were eventually abolished in 1983).
The basic principle of the Soviet-type local administration was that of so-
called «democratic centralism». This euphemistic phrase meant the strong
subordination of all local and regional councils to the central government. The
whole system was uniform, with the municipal and the county councils built
into a unified state administration, with no substantive local autonomy. In the-
ory, the directly-elected council was in charge of the major functions at both
the local and the county level. In practice, «council elections» were directed
by the Communist party, which informally delegated the members of the
councils.
During the period of transition to democracy, there was a wide consensus to
abolish the old, Soviet-type local councils and to establish democratic local
governments, instead. To counteract the earlier forced amalgamations of mu-
nicipalities, all communes and towns, including the smallest villages, were
given the right to establish a separate local self-government with general com-
petence. Another basic change was that the hierarchical relationship between
the local and county councils came to an end and, although the two-tiered sys-
tem was maintained, the scope of responsibility of the new county governments
was greatly reduced. The former middle-level powers and functions were trans-
ferred partly to the municipalities and partly to new public authorities organ-
3
The number of district councils had continuously decreased before their abolishment in
1971.
284
local government in hungary
ized under the higher level of central government. More than 40 different State
administrative units were set up, mostly as successors of the old county admin-
istration. As a result of the constitutional revision and the fundamental changes
of 1989-90, regional and local administration doubled, producing a unified and
hierarchical sphere of State administration, along with a relatively independent
and intact system of local and county self-governments providing wide-ranging
autonomy for the local authorities.
According to the Hungarian Constitution, «the territory of the Republic of

Hungary consists of administrative units including the Capital, the counties,
cities, towns and villages». In reality, these numerous types of units constitute
a two-tiered system consisting of municipal and county governments. At the
basic level, municipalities are classified into several different local government
categories.
2.1. Municipalities
The first two «municipal-type» bodies are «communes» (községek) and

«large communes» (nagyközségek) and show only tiny differences: those mu-
nicipalities which have at least 300 inhabitants and a separate territory and are
able to administer local public matters may have their own self-governments. It
is to be noted that these minimum requirements were laid down only in 1994,
so smaller villages which had maintained their own local government since
1990 (when no such requirements were in effect) were able to retain their au-
tonomy. This fragmentation can be explained by the fact that more than half of
local human settlements have fewer than 1,000 inhabitants, and roughly one-
third of the municipalities do not have even 500 citizens (see Table 1.). Even
the 100 smallest villages, which have fewer than 100 inhabitants, have separate
local governments.4
Large «communes» are those municipalities with more than 5,000 inhabit-
ants. The total number of «communes» and «large communes» in Hungary is
2,846, constituting approximately 90% of all local authorities. Of the total pop-
ulation, 30.56% lives in these municipalities.
4
This includes the smallest commune of the country, Tornakápolna, in which only 8 people
lived at the beginning of the present century.
285
zoltán szente
Table 1
Population sizes in municipal governments (2009)
Number of inhabitants Number of municipalities % of municipalities
< 499 1,074 34.07

500−999 677 21.48
1,000−1,999 634 20.11
2,000–4,999 490 15.54
5,000−9,999 133 4.22
10,000–19,999 83 2.63
20,000−49,999 41 1.30
50,000−99,999 11 0.35
100,000−999,999 8 0.25
>1,000,000 1 –
Total 3,152 ~100.00
Source: Hungarian Central Statistical Office
Administrative status of towns, towns with county rights and the

2.2.
capital city
Despite the aforementioned requirements related to the size of population,

these do not provide strict distinctions between «communes» and «towns»
(városok): some of the latter have fewer than 5,000 inhabitants. Because the
status of «city» does not require such a condition, any large local entity that is
sufficiently developed, has proper public service institutions and also performs
some functions for its vicinity may apply for this administrative rank. In reality,
the whole process of granting city status to the suitable applicant «communes»
is greatly influenced by party politics. Many members of Parliament coming
from rural areas feel incited to obtain city rank for their constituencies. As a
consequence of this special «locality rule», since the «system change» of 1989-
90, the number of local governments with city status has increased sharply: it
was granted to 164 communities between 1990 and 2009 (in 2009 alone, 22
communities received this rank).5 As a result of this movement, today there are
as many as 328 municipal self-governments with city status, including the cap-
ital city and the 23 boroughs having the special rank of county. As a degree of
urbanisation, about 69.4% of the entire population lives in towns. At the same
5
Gazetteer of the Republic of Hungary. Hungarian Central Statistical Office, Budapest,
2009, pp. 97−99, 228.
286
time, almost 60% of the total population lives in the 139 cities which have more
than 10,000 inhabitants. In administrative terms, the rank of «city» has a main-
ly symbolic importance which reflects the development of the municipality.6
Some differences in finance exist between towns and communes, but as a major
rule, they have the same range of responsibilities and similar organisational
structures.
Another type of municipalities is that of the so-called «towns with county
rights» (megyei jogú városok). These are larger cities with more than 50,000
inhabitants and which carry out, within their own territories, the tasks and
functions of the county governments. There are 23 such municipalities with
county rights.
The capital city (főváros), Budapest, with approximately 1.8 million inhab-
itants, is by far the largest city of the country. Some 70 to 80 other municipali-
ties belong to the agglomeration of the capital. Budapest has a two-tiered sys-
tem of local government consisting of the capital city government and the 23
district governments. All are seen as municipal governments with no hierarchi-
cal relationship among them.
2.3. County self-governments
Hungary’s 19 counties constitute the second tier of the system of local gov-
ernment. County boundaries were not changed in 1990,7 but the scope of coun-
ties’ powers was sharply reduced, in repercussion to their formerly more pow-
erful position by which, according to conventional knowledge, they oppressed
local autonomy. Since then, it has been one of the basic issues of the Hungarian
public administration to find a proper place for the administrative «middle lev-
el» in the existing system of local government, replacing (or renewing) the
«levitating counties», as they have frequently been characterised.8 The role of
the counties might be overshadowed even more, as most public authorities of
the State administration at the county level have been integrated into so-called
county government offices (megyei kormányhivatalok) since January 1, 2011.
From a regional point of view, it is apparent that local governments were
reestablished in 1990 in an unbalanced two-tiered system. 9
6
Pálné Kovács Ilona: Helyi kormányzás Magyarországon. Dialóg-Campus Kiadó, Buda-
pest−Pécs, 2008, pp. 139−140.
7
The county is to be seen as the traditional middle level of public administration, which is
often featured in political discussions as a «thousand-year-old» institution, due to the fact that,
since the foundation of the State, the country has been divided into counties (comitatus), and these
were regarded as an important constitutional guarantee for the historic Habsburg centralism.
8
Zongor Gábor: A lebegő megye. Comitatus Könyv- és Lapkiadó, Veszprém, 1994.
9
Pálné Kovács Ilona: Integráció és dezintegráció a területi közigazgatásban. In Verebélyi
Imre (szerk.): Egy évtized önkormányzati mérlege és a jövő kilátásai. Budapest, 2000. p. 90.
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Figure 1
The counties of Hungary
2.4. A fragmented system of small municipalities
Summing up, the overall system of self-government can be characterised as

one fragmented into small municipalities10 and based on the principle of one
local community, one local government. Thus, the number of municipal gov-
ernments coincides almost exactly with the number of communities.
Table 2
Types and numbers of local authorities
Regional level Municipal level

Capital Towns with
Counties Capital Towns Communes
districts county rights
19 1 23 23 304 2824
Totals: 19 3175
Source: Gazetteer of the Republic of Hungary. Hungarian Central Statistical Office, Budapest, 2009.
10
Pálné Kovács, 2008, pp. 146−147; Éva Fekete, Mihály Lados, Edit Pfeil, Zsolt Szobo-
szlai: «Size of Local Governments, Local Democracy and Local Service Delivery in Hungary».
In Pavel Swianiewicz (ed): Consolidation or Fragmentation? The Size of Local Governments in
Central and Eastern Europe. OSI/LGI, Budapest, 2002. pp. 45–47.
288
Although all local governments have the right to establish and maintain a
separate office, most local entities having fewer than 1,000 inhabitants do not
have such an executive office, and some smaller municipalities run a joint of-
fice, instead. Thus, at present, some 1,900 local government offices exist, of
which approximately 760 are such joint offices.
After 40 years in power, the Communist rule began to decline. Then, the
Communist Party representatives began negotiating with the major movements
and parties in the opposition the calendar and means of a peaceful transition to
democracy within the framework of the so-called «National Roundtable». At
that time, it was an essential requirement to dismiss the old Soviet system of
local and regional administration and to found in its place a new, democratic
system of local government. But its way was not predetermined by the existing
circumstances: national traditions did not provide sufficient guidelines for the
transition, nor was it evident which foreign model should be followed.
Nevertheless, when the first freely-elected Parliament passed Act No. LXV of
1990 on Local Government (the principles of the new system were incorporated
into the Constitution in October of 1989), the law reflected considerable consen-
sus among the new parliamentary parties. This consensus was, in any case, neces-
sary, as the Constitution requires a two-thirds majority to pass any legislation on
the legal status of local governments. In preparing the law, the principles and
rules of the European Charter of Local Self-government, later signed by Hungary
in 1994 and promulgated in 1997,11 were taken into account.12
Other important pieces of legislation are:
– Act No. LXIV of 1990 on the Election of Representatives and Mayors of
Local Authorities
– Act No. C of 1990 on Local Taxes
– Act No. XXXIII of 1991 on the Handover of State Assets to Local Gov-
ernments
– Act No. CXXXV of 1997 on the Associations and Cooperation of Local
Governments.
Owing to the democratic enthusiasm of 1989-90, the re-establishment of the
local government system took place in a strange way. In 1990, a new and unique
11
Act No. XV of 1997.
12
In 1994, Hungary made a stipulation to Art. 3, Section 1 of the Charter, because at that
time the county assemblies and the general assembly of the capital city were elected by indirect
voting. But the the election system was modified in the same year; thus, the Charter was
promulgated in 1997 without any stipulation.
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constitutional concept of local self-government was accepted. According to this

idea, local government is the collective «right» of the eligible voters of the local
and territorial communities to regulate and administer their own local affairs. In
this theoretical assumption, local self-government means the «independent,
democratic management of local affairs and the exercise of local public author-
ity in the interests of the local population».
In theory, this «right-based» approach should have meant that the constitu-
tional tests guiding the permissible limitations on basic rights and fundamental
freedoms were also to be applied to local authorities. The Constitutional Court
declared that local government rights are protected in the same way as funda-
mental (human) rights;13 however, it soon proved to be clear that these require-
ments could scarcely be enforced. Therefore, another decision of the Court said
later that «fundamental local government rights», as they are entrenched in the
Constitution, are the major responsibilities of the representative body of the lo-
cal governments.14 In this way, the «basic rights» of local governments soon
became the guarantees of local government autonomy.
The Constitution and the Local Government Act define the basic rights of
local authorities. Thus, they guarantee that local governments may regulate and
administer matters of their own competence and that their decisions may be
revised only on the basis of unlawfulness. Then, the constitutional status of lo-
cal authorities ensures that they may, within the limits of the law, independ-
ently set up their own organization and formulate their standing orders. Local
government autonomy was designed to be strengthened also by providing eco-
nomic and financial means for local authorities (see, infra, points 7 and 8).
The Local Government Act was modified in 1994, when the direct election
of mayors and members of the county assemblies was introduced. The institu-
tional system of supervision of local governments was also transformed (see,
point 10, infra).

AUTHORITIES
4.1. Scope of municipal responsibilities
In relation to the powers and tasks of local authorities, the Local Govern-
ment Act is based on the concept of the general competence of local and re-
gional self-governments. It means that as a major rule, the local government
carries out all local public affairs. According to this approach, the term «local
public affairs» has a twofold significance; first, it refers to the function of local
13
Decision of 18/1993 (III.19.) of the Constitutional Court.
14
Decision of 4/1993 (III. 12.) of the Constitutional Court.
290
government to provide public services for the local population; second, it em-
braces the principle of local democracy, presuming that public power is exer-
cised by bodies democratically elected at the local level.
In administrative terms, local government tasks can be «mandatory» or
«voluntary». Only an act of Parliament may determine «mandatory» tasks and
duties for local authorities. Basically, the cited Local Government Act defines
the scope of responsibility of local government, but many sectoral laws also
confer tasks on municipalities. In theory, when an act may delegate a new com-
pulsory task to local authorities, it must simultaneously ensure the financial
conditions necessary to carry them out. Although the law does not specify in
what form this should be arranged, the central budget supports the fulfillment
of these tasks primarily in a «normative» way, i.e., through a block grant.
All local authorities must provide a minimum level of public services. Ac-
cording to the Local Government Act, they are obliged to ensure the follow-
ing ones:
– safe drinking water
– primary education
– basic health care
– basic social services
– public lighting
– maintenance of public roads
– public cemeteries.
These are those basic services that must be provided by all local govern-
ments, regardless of the size or other objective features of the municipalities.
Additionally, municipal governments usually carry out a number of other func-
tions, in particular local planning and development, maintenance of public
parks, protection of urban and natural environments, water drainage, mainte-
nance of public sanitation, and so on.
The «compulsory» character of tasks and functions means that the local
authorities are responsible for organising the delivery of public services, but
they are, at least in legal terms, free to choose in what manner they will comply
with this requirement. In most cases, the larger municipalities, with their great-
er financial capacities and real assets, maintain public service institutions them-
selves, while the smaller communes, which frequently do not have enough ca-
pacity to maintain a whole system of such institutions, are bound to find
alternative ways for service delivery.
The bulk of mandatory tasks are conferred on local authorities in different
ways, depending upon the size and capacity of their respective municipalities.
Typically, the larger municipalities perform many other functions, such as
housing management, public transport, waste disposal and local fire protection,
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which the smaller communes are not obligated to provide. Generally speaking,
the large cities with their greater populations participate in the management of
local energy supply and public utilities, run local public transport and maintain
specialized public service institutions.
It is to be noted that, as a consequence of the principle of general compe-
tence entrusted to local government, any local authority, even the the smallest
municipalities, has the right to assume any responsibility which is mandatory
only for larger local entities.
The Local Government Act also empowers local authorities to undertake vol-
untarily the solution of any local public affair which, under the Law, is not the
competence of any other public authority. Another condition for assuming facul-
tative tasks is that their fulfilment cannot endanger the performance of the com-
pulsory duties of the local government. The scope of non-mandatory tasks under-
taken by local authorities covers a wide range of local public affairs. The larger
municipalities are usually in the position to assume additional local functions
such as encouraging and supporting the local economy, launching local pro-
grammes for creating workplaces, promoting tourism (e.g., organising festivals),
or founding and managing institutions for their own sake (e.g., public baths).
4.2. The tasks and functions of the counties
As explained above, in contrast to their historic significance, the role of the

counties was considerably weakened in 1990 in favour of the municipalities,
and they were deprived of most of their previous functions. In fact, a subsidi-
arity principle of sorts was applied to them, declaring that county self-govern-
ments would henceforth execute the tasks and functions that could not be man-
datorily prescribed for the municipal governments. County governments
usually provide public services which are not delivered by any local authority,
if these services have a regional character or cover a large part of the county
territory.
Nevertheless, municipalities may take over any responsibility from the
county (typically the assumption of management of public service institutions,
schools, hospitals or social care institutions by the larger municipalities) for a
period of at least three years, provided that in the preceding four years the ma-
jority of users of the institution in question were the inhabitants of the munici-
pality. Whereas in the first part of the 1990’s the larger towns—particularly the
towns with county rights—often assumed responsibilities from the counties to
manage a number of public service institutions (secondary and vocational
schools, hospitals, etc.) which served not only their own population but also the
inhabitants of the agglomeration, in the worsening economic situation (mainly
since the early 2000’s), they have abandoned their ambitions to do so and have
restored the management of these institutions to the county governments.
292
Today, counties maintain secondary schools, special schools and colleges,

museums, libraries and archives of regional interest; they run special health
care institutions which provide services beyond those of primary care; they
coordinate the duties connected with the protection of the architectural and
natural environments; and they encourage tourism.
4.3. Competences of municipalities with special status
The local governments of towns with «county rank» (megyei jogú városok,
see point 2.2. supra) perform both the functions of the municipalities and of the
corresponding county within their own territories. Notably, all county seats fall
within this category of local authorities. In most cases, these municipalities are
able to assume public services from the counties.
The capital city, Budapest, has a special legal and administrative status. It
has a two-tiered system in which the «central capital city government» and the
district governments have separate functions and tasks as defined by the Local
Government Act. All are eligible to exercise the basic rights of local govern-
ments. Budapest is divided into 23 district governments. There is a well-bal-
anced, non-hierarchical relationship between the two levels, based on their own
independent statuses and mutual interests. The division of powers and duties
between the central and the district self-governments is based on the principle
that the capital city government, within its own territory:
– fulfils those functions which belong to the county government in other
cases, as well as certain responsibilities that fall within the competence of
municipalities;
– exercises authority in local public matters which concern the whole terri-
tory of the capital city, or a part thereof which extends to more than one
district (such as the maintenance of bridges or the public transport of the
entire capital); and
– carries out various other functions which are related to the special status
and role of the capital city (as the seat of embassies or the site of national
celebrations, for example).
The municipal districts are responsible for most municipal functions, pro-
viding primary health and welfare services, social care, kindergarten and pri-
mary school education, maintenance of public roads and squares, etc.
4.4. In search of a more effective division of powers and duties
Although the problems of capacity affecting small «communes» had already

become apparent already in the mid 1990’s, the basic structure of the local gov-
ernment system appeared to be frozen in political terms, which did not make it
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possible to integrate the small municipalities into larger ones. In this situation,
perceiving the extreme differences in the service-producing capacity of the
various local authorities, the central government began to encourage integra-
tion as a way of performing tasks and functions. Moreover, while general com-
petence and wide-ranging local autonomy were seen as great achievements of
the Local Government Act of 1990, to a degree they seemed to be in contrast
with the fragmentation of the existing system of local government. The great
majority of small municipalities were unable to use this freedom in practice,
since they did not have sufficient sources and capacities to provide broad-range
public services or to maintain service- delivery institutions.
Therefore, as early as the mid 1990’s, the central government began to en-
courage the establishment of joint executive offices for small municipalities.
Then, since 2004, it has preferred the so-called «differentiated distribution of
tasks and functions» by creating «multifunctional small district associations»
(többcélú kistérségi társulás) based on the statistical division of the country. In
this way, numerous responsibilities have gradually been conferred on these dis-
tricts, which are thought to be more powerful than the voluntary associations
and cooperative endeavours among local authorities. The public services which
can be provided in this way are primary education, social services, family and
child protection, local public transport, housing, water management and sew-
age, communal services and energy supply, among others. There are 173 small
district associations and they are financed by the member authorities, in propor-
tion to their population.
Another method of ensuring compulsory public services is to outsource
them to other service-providers, e.g., to State corporations, private actors, civil
organisations or churches. In some spheres the State-owned companies have a
significant role, particularly in inter-municipal public transport, public utilities
and mail services. Contribution from the private sector is only sporadic and
fluctuating. A couple of years ago, for instance, a number of local authorities
handed the management of its hospitals and other health institutions over to
private investors and companies, but this movement sparked a sharp ideologi-
cal dispute and fierce political battles. The issue as to whether or not the in-
volvement of profit-oriented organisations endangers the safety of the running
of health services was finally put to a national referendum, which subsequently
rejected the privatisation of the public hospitals and other health organisations.
The autonomy of local authorities to form their own internal organisation is

listed in the Constitution as a «right» of municipalities. Pursuant to the Local
Government Act, this power can be exercised only within the limits of law. The
aforementioned law on local governments determines the basic organisational
structure of local authorities.
294
5.1. The representative body, its members and committees
According to the Local Government Act, the major decision-making and

legislative body of local governments is the representative body (képviselő-
testület). As a major rule, the competences of local authority, as defined by law,
fall within the range of responsibilities of the representative body or council.
The council has the right to manage and administer independently local pub-
lic affairs; its decisions within this scope of competences may be reviewed only
by the court on the grounds of legality. The representative body exercises the
ownership rights of local government; it manages—within the limits of the
law—its own revenues and imposes local taxes. It determines the annual budg-
et of the municipality and may decide on taking out credits and loans. The
council decides on the organisational structure of the municipality (e.g., wheth-
er or not it maintains a separate mayor’s office). The council may establish lo-
cal government bodies and agencies, may associate with other local authorities
or may join a rural district administrative office. It may issue local decrees,
which cannot be in conflict with higher-ranking legal norms.
The representative body may assign certain powers and duties to the mayor,
its committees, or an association of which the local government is a member.
Still, the most important responsibilities cannot be transferred to any other
body, so the council itself must issue local decrees, impose local taxes, call lo-
cal referendums, establish or join local government associations or accept the
annual budget of the local authority.
The council is a multi-member body headed by the mayor. The number of
the other members of the representative body is determined by Act No. L of
2010, on the Election of the Local Government Representatives and the May-
ors. The new law has reduced the number of the local councils by more than
one-third.
All councils are directly elected on the basis of universal, equal, secret and
direct suffrage for a term of four years. All resident Hungarian citizens of at
least 18 years of age may elect and be elected. Foreigners having residence
permits (immigrants) may vote in local elections, but they cannot be elected as
a member of the council (and thus have only an «active» right to vote).
Local councils are elected by different voting systems, depending on the
population of each municipality. For municipalities having 10,000 or fewer
inhabitants, there is a so-called shortlist system, in which the whole municipal-
ity constitutes only one election ward and all candidates are put on the ballot
(those candidates being elected who receive the most votes in equal number
with the membership of the local council). For those municipalities with more
than 10,000 resident citizens (and in the districts of the capital city), a mixed
system is used: some representatives are elected in individual electoral districts,
whereas about 40% of the local councillors are elected on so-called compensa-
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tion (i.e. party) lists. Only those parties which have obtained at least 5% of the
votes cast may be elected from the compensation lists (which is the propor-
tional element of the voting system). There is no turnout condition.
It is to be noted that local elections are held in the same year as parliamen-
tary elections, usually six months later. The voter turnout rate in local govern-
ment elections is normally lower than in parliamentary elections: in 2010 it was
46.64%; in 2006, 53.12%; and in 2002, 51.11%.
The size of the representative body depends on the number of local inhabit-
ants: the smallest councils have only 3 members, while the largest representa-
tive body exists in Debrecen (the second largest city of the country), where the
council consists of 34 members plus the mayor.
Table 3
Size of representative bodies
Municipal Number of councillors elected from Number of councillors elected from

population lists individual electoral districts
Voting for uniform shortlist

100 or less 2 −
101−1,000 4 −
1,001−5,000 6 −
5,001−10,000 8 −
Mixed voting system
10,001−25,000 3 8
25,001−50,000 4 10
50,001−75,000 5 12
75,001−100,000 6 14
100,001 or more 6+1 for every 10,000 inhabitants 14+1 for every 25,000 inhabitants
The Local Government Act prescribes that the representative body must
hold sessions as needed, but at least six times a year. As a general rule, these
sessions are open to the public. Each representative body must hold a public
hearing at least once a year in which to inform the local population directly re-
garding municipal government policy. The mandate of the council is for four
years, but the council, with the vote of its majority, may dismiss itself before
the expiry of its tenure.
The council may set up committees (bizottságok). Local authorities may
freely determine the number and types of their own committees, although mu-
nicipalities with more than 2,000 inhabitants are obliged to establish a commit-
tee for financial control. In some cases, the committees may play an important
role, since on the basis of the council body’s decision they may decide them-
selves on certain kinds of local public matters.
296
5.2. The Mayor as chief administrator and executive official
Since 1994, all mayors (polgármester) have been elected directly by the lo-
cal population. He or she is the chairman of the council and as such, has full
membership on the representative body.
The mayor is the head of the local executive; he/she is not responsible for
the representative body in political terms. The mayor’s direct legitimacy puts
him/her in a very strong position, even in those cases in which there is a «co-
habitation» between the (majority of the) council and its chairman with differ-
ent party affiliations. The council may turn to court to request the mayor’s
suspension from office only if it holds that the mayor’s activity is continuously
illegal or when he/she has not complied with the obligation to declare his/her
financial interests. Another tool of the council to counterbalance a politically
undesirable mayor is to elect deputy mayor(s) among its own members. Though
the deputy mayors fulfil their duties under the direction of the mayor, their
range of authority is determined by the council. Since 2010, councils have been
allowed to appoint an additional deputy mayor, who is not a member of the
representative body but who may have some delegated powers and has the right
to participate in sessions of the council (although without the right to vote). The
position of mayor is incompatible with a number of state offices, but he/she
may be a member of Parliament.15 Since 2010, more than 20% of the members
of Parliament have been mayors, as well.
The mayor represents the municipality and directs—through the chief ad-
ministrator—the mayor’s office. The mayor has a suspensive veto right against
the decisions of the council. He/she is responsible also for state administrative
tasks delegated to him/her by law.
The chief administrator (jegyző), who is appointed for an undetermined period
by the representative body, is a key figure of the local executive as head of the
mayor’s office. He must meet professional requirements laid down by law: the
chief administrator is the foremost civil servant in each municipality. He is re-
sponsible for preparing and executing the decisions of the representative body
and performs a number of State administrative tasks and functions transferred by
law. The chief administrator is the legal «watchdog» of the local government,
with the responsibility of warning the council, its committees and the mayor if he
finds that any of their decisions has violated the law. This function sometimes
leads to a delicate situation, since the chief administrator works under the control
and direction of the mayor, and his tenure depends on the representative body.
For those municipalities of fewer than 1,000 inhabitants which are adjacent
to each other within the same county and which are unable to sustain a separate
15
Between 1990 and 1994, the mayors could not simultaneously be members of Parliament.
According to a decision of the Constitutional Court, their membership in the National Assembly
is not a constitutional issue: both incompatibility and cumul de mandats are permissible.
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office (usually because they cannot finance it or are unable to appoint and keep
a chief administrator with the required qualifications), the law allows them to
set up a joint office to perform their administrative tasks and functions. Mu-
nicipalities having between 1,000 and 2,000 inhabitants may also establish such
a joint office, while the seat of the office may be a town with more than 2,000
inhabitants. Today, about 64% of local authorities do not have a separate ex-
ecutive office, but instead belong to a joint one.
5.3. Internal organisation of counties and capital city government
The representative body of the capital city government and of the towns
with county rank is the general assembly, but it plays the same role as the coun-
cil in the other municipalities. The general assembly of the capital city govern-
ment is composed of the chief mayor and 33 members. It is worth noting that
over the last 20 years the number of councillors has gradually decreased: from
1990 to 1994 there were 88 members of the council, whereas between 1994 and
2010, the number dropped to 66. Nevertheless, while this number was fixed by
law, the new regulation follows a different logic: the membership of the gen-
eral assembly is determined by the size of the population of the capital city,
with one councillor for every 50,000 inhabitants. All representatives are elected
through a proportional system, by which the electors may vote for party lists
applying a 5% threshold (4% until 2010). The chairman of the general assem-
bly is the chief mayor, an equivalent to the mayors of the municipalities.
The internal organisation of the county governments is basically similar to
that of the municipalities, with only some minor differences. Thus, the deliber-
ating body of the counties is the «county assembly» (közgyűlés). It is presided
by its chairman (közgyűlés elnöke), who is elected directly by the members of
the assembly (i.e., he is not elected directly by the people).
6. HUMAN RESOURCES
As explained above, very recent legislation passed in 2010 reduced the total
number of local representatives by more than one-third (the right-wing parties
had promised in the election campaign to halve their number). Prior to this re-
duction, local representatives had numbered 31,000-32,000.
Regarding the administrative staff of local authorities, it is to be noted that
in the early 1990’s, the Parliament accepted several codes regulating the em-
ployment status of different categories of people employed by the public sector.
Act No. XXIII of 1992 on the Legal Status of Civil Servants imposed special
rules for those employed as officials by State administrative units or local gov-
ernments. According to the relevant rules and regulations, they carry out stand-
ard administrative tasks, preparing and implementing the acts of public au-
298
thorities. The underlying concept of the law was to create a unified civil service
for the entire public administration, offering a career path for those who under-
take a permanent and well-defined job.16
The necessary elements of the professional career for civil servants (promo-
tion system, methods of selection, etc.) were completed in the last two decades.
However, the new government formed in 2010 destroyed some of its compo-
nents, e.g., making the dismissal of civil servants easier, or capping the amount
of severance pay, etc. As a consequence of this standardisation of the civil serv-
ice system, the officials of executive offices of local authorities have the same
status as other civil servants employed by State administrative organs.
The 3,000-plus local authorities currently employ some 42,000 civil serv-
ants and 370,000 public employees.17 As a result of local governments’ right to
shape their internal organisation, there are no central limitations on the size of
the administrative staffs of executive offices. But local authorities’ permanent
lack of financial sources puts pressure on them to reduce their bureaucracy,
sometimes to an irrational level.
Although the share of local governments in the total government expendi-

ture has been decreasing for many years, local authorities still play a significant
role in public finances. They consume about 12% of GDP (12.3% in 2009), a
drop from about 17% in the early 1990’s.
With the founding of the new local government system, the relevant legisla-
tion of 1990-1991 attempted to guarantee the financial autonomy of local au-
thorities. This autonomy was ensured by establishing the principle that if the
central government delegates a new mandatory task to local governments, it
must simultaneously provide the proportional financial support necessary to
perform it or must recognize municipalities’ own revenues. Moreover, the pro-
vision of the right for local authorities to obtain revenues from local sources,
such as through taxes or the use of local property, also supported municipali-
ties’ financial autonomy.
The Local Government Act details the main sources of local government
revenues as follows:
– local taxes and duties
– fees and charges for local public services, duties and fines
16
For a more detailed description, see Viktória Linder: Balancing between the Career and
Position-based Systems. Some Aspects of Recent Developments in Civil Service Legislation in
Hungary. In: Acta Juridica Hungarica, No. 2011/1.
17
Jelentés a helyi önkormányzatok gazdálkodási rendszerének 2008. évi ellenőrzéséről. Ál-
lami Számvevőszék, Budapest, 2009. augusztus. p. 9.
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zoltán szente
– business-like revenues (profits)

– transfers and contributions
– loans, credits and bonds.
The most important sources of these revenues are local taxes. All municipal
governments are entitled to impose them in accordance with the law. It is to be
noted that the county governments do not have this power. The Law defines
the types of local taxes and determines their limits. The local governments are
free to choose which taxes they levy and their amounts. It can be said that al-
most all municipalities have revenues from local taxation: whereas in the mid
1990’s about the half of the local authorities imposed local taxes, in 2009
98.5% used this power. The most popular among the municipalities is the
business tax: 85% of the local governments imposed it in 2009. Notably, there
can be vast differences in the real revenues from this source: while many mu-
nicipalities obtain only minimal revenues from local enterprises, some mu-
nicipalities (primarily in the northwest part of the country, where flourishing
industrial parks exist) obtain extra money from the companies. Another wide-
spread local tax is the one hitting tax on plots and buildings owned or rented
by citizens (the communal tax can be imposed on the companies, as well).
Besides these, local governments may levy taxes on private households, lands,
and incomes from tourism.
As the economic situation of local governments has continuously worsened
in the last few years, many local authorities have extended or raised the degree
of local taxation. Nevertheless, this method of increasing local revenues is
limited, partly because the rate of central taxation is high and partly because
raising existing taxes or levying new ones is very risky from a political point
of view.
Municipalities usually obtain some revenues from the users of public
services in the form of fees and charges. In accordance with the law, they are
entitled to obtain money from duties and some kinds of fines imposed by
their organs. There are also commercial - type revenues, that is, profits, div-
idends, interests, concession fees, rents, etc., stemming from the business
activities of local governments and from the yields of their own properties
and property rights.
On the other hand, local authorities may take out loans and credits and may
issue bonds. Since 1995,18 local governments’ autonomy to take out credits and
loans has been restrained in order to reduce the deficit of the State budget, as
well as to prevent the indebtedness or insolvency of local authorities. It is to be
noted that in the early years of the new local government system, that is, until
the mid 1990’s, many local authorities received considerable revenues from the
18
1995 was the year of the so-called «Bokros-package», a strict economic recovery program
using financial restrictions in the whole system of the State budget.
300
privatisation of local property. Municipal governments inherited a great stock

of the former council flats and a part of the State-owned factories and enter-
prises. But parallel to the advancement of local privatisation and the decrease
in saleable propriety, local governments had to seek additional resources. In the
last decade, for example, the issuance of bonds, in particular by the larger mu-
nicipalities, has been used more and more as a means of covering the cost of
local investments and the improvement of public services.
Apart from local resources, less than one-third of total local revenues stems
from central block and specific grants. The block grants are allocated in a «nor-
mative» way, based on the estimated costs of the various mandatory tasks (as
items) and calculated by a per capita or other quantitative indicator of the local
public services.
While the block grant is a form of general financing for local authorities,
specific grants are allocated for determined purposes, that is, special public
services, and their use is restricted, since they can be spent only on what they
were designated for. The target subsidy is allocated to local authorities for
reaching special objectives and goals set by Parliament every year. These tar-
gets are the development of local infrastructure or social investments, for im-
proving health institutions, water management, road maintenance, etc. Local
authorities must apply for this subsidy, but if they comply with the centrally
determined conditions, they are entitled to receive this specific grant. The ear-
marked subsidies are also allocated by Parliament each year to municipalities
to carry out special local high-cost investments. Local authorities must bid for
these contributions as well, but their claims are decided on individually. There
are also some other specific grants for special targets (such as running theatres),
individual projects (e.g., supporting the new underground line in Budapest), or
support of extraordinary events (such as the so-called vis maior fund).
The mechanisms of financial equalisation make up another part of local
government finance, in which the central budget understandably has an empha-
sized role. Local authorities differ vastly in their abilities to impose local taxes
and to obtain their own revenues from other sources. In addition to these dis-
tinctions, many small communes, on account of their size, underdeveloped in-
stitutional system and low service-producing capacity, are unable to exercise
their general competence and to perform their mandatory tasks on their own.
For this reason, those municipalities in a disadvantaged financial situation, as
well as those which are insolvent through no fault of their own, are subsidised
by the State budget. The central government decides each year on the claims of
the respective local governments.
Finally, local authorities have resources from shared taxes: from a legal
point of view, these are central taxes, but a fixed part of the tax revenues are
shared between the State budget and the local governments. The most impor-
tant is the personal income tax, of which 40% is redistributed to local authori-
ties. In addition, they receive 50% of the tax on motor vehicles.
301
zoltán szente
Figure 2
The renevue structure of local authorities (2008)
0%
26% 16%
fees and charges
local tax revenues
11% fees and charges
7% businees-related activities
transfers
shared taxes
loans and credits
9%
18% central grants
13%
Source: Ministry of Finance.
Although the basic structure of local government finance has remained es-
sentially unchanged since 1990, certain tendencies and minor changes can be
discovered. Whereas local government finance in the early 1990’s was basi-
cally «resource-oriented», accumulating freely-spendable revenues, it has
gradually become more «task-centred», with more and more individual re-
sources targeted, that is, allocated to precisely determined aims. Another trend
has been that the rate of increase of central support has not followed the rise of
local government expenditures, which has led to financial problems for many
local authorities. The central State has not ceased in delegating more and more
tasks to local authorities, in a continuously narrowing finance: although the
share of the local government expenditure in GDP—about 12%—is relatively
high from a European perspective, in the early 1990’s this rate was as much as
15−17%, but then decreased significantly in 1995, with little change ever since.
All these factors have contributed to the rising indebtedness of local au-
thorities. This process created a precarious situation, especially for the small
municipalities. Since 1999, every year more than 1,000 of them have received
extraordinary central subsidisation to avoid bankruptcy; in 2006, a peak number
of 1,454 local authorities fell back on this support.
When, after decades of uniform «public property», the Constitution declared

that «[t]he State respects the assets and property of local authorities», this
statement had not only a symbolic meaning, recognizing the concept of local
government property and assets, but also one of practical significance. As the
Local Government Act allows local authorities to receive revenues from the
yield of their own property and to exercise ownership rights in this regard, such
property became one of the sources of its own revenues. Soon after the new lo-
302
cal governments were established, the former State-owned local real estate, as
well as the movable assets and the stocks and shares of the local councils, be-
came the property of the municipalities. An act also transferred to local au-
thorities the property rights of the local public utilities, certain historic build-
ings and protected natural lands.
In legal terms, local government assets consist of two parts: first, the so-
called «fundamental assets», serving for the fulfilment of mandated tasks; and
second, the other assets, which can be used for profitable, commercial-type
activities in order to obtain revenues. The properties belonging to the former
category, particularly local public roads, squares and parks, cannot be alienat-
ed, charged or mortgaged. The other part of local government property, in par-
ticular former council flats, shares and bonds, are disposable with no restric-
tions, so they can be used for sale, borrowing, lease or other transactions.
Certain parts of local property, such as public service institutions, are movable
only to a limited extent.
The representative body is entitled to exercise all powers connected to the
use of local government property. In practice, the major part of immovable
property, such as flats, other buildings and agricultural lands, was sold in the
1990’s, with these revenues frequently used not for capital spending but rather
for covering operational expenditure. This is likely one of the reasons for the
great indebtness of many local authorities today, despite the generous transfer
of assets at the beginning of the 1990’s.
Previous mention has been made to the understandable enthusiasm of the

glorious period of the collapse of Communism, which had a great impact on the
legislation of the new-born democracy. It might have also influenced the rees-
tablishment of the system of supervision exercised over local governments. The
Local Government Act therefore acknowledged only legal control over the acts
of local governments exerted by the territorial offices of the central govern-
ment. Between 1994 and 2006, local authorities were controlled by the eight
public administration offices organized at county level.
In 2006, the leftist coalition tried to push its regionalisation program through
Parliament, founding regional administrative offices for legal control. But, as
the oversight of local authorities had been regulated by the Local Government
Act, requiring a two-thirds majority to any amendment, and since the govern-
ment did not have such support in the National Assembly, the Constitutional
Court annulled these attempts.19 As a regrettable result of the sharp political
19
Astonishingly, after the annulment of the law on the regionalisation of the former county
offices, the Government issued a decree with almost the same content. This ordinance was re-
303
zoltán szente
conflicts in the issue, for more than a year there was no legal control over local
authorities, since the government majority, in the absence of a two-thirds ma-
jority, was not able to substitute the rule on this point. Only after the general
elections of 2010 did the new government manage to restore the original situa-
tion, when the rightist coalition gained a qualified majority. On the basis of this
support, the new coalition, integrating the State administration at the county
level, established county government offices in lieu of the earlier administra-
tive offices, but these structural transformations did not change the mechanism
and framework of the legal control of local authorities.
Legal control means only an ex post facto examination of the lawfulness of
the local decisions, without the power to annul or suspend them. Since local
authorities take roughly 1.5 million individual decisions per year, this function
entails a great amount of work. All local governments must send their decrees
and individual resolutions to the competent government office for review. If the
latter organ finds that an act or provision is illegal, it can call upon the respec-
tive local authority to terminate the violation of law, setting also a deadline for
this rectification. But such a warning is not binding for the concerned local
government. If it does not withdraw or modify the objected decision, the coun-
ty government office may turn to court to have the resolution revised; or, in the
case of local government decrees, the office may submit an appeal to the Con-
stitutional Court in order to repeal it.
On the other hand, the economic management and the spending of local
governments are supervised by the State Audit Commission (SAC). This kind
of control embraces not only the lawfulness of local government expenditure,
but also the efficiency of its financial management. Finally, local authorities are
required to conduct regular internal inspections of economic management by
their own financial committee and by a comptroller.
When the Local Government Act lays down the means for the protection of
local self-government, it refers only to certain procedures which make the rep-
resentation of institutional interests possible, rather than defending basic rights.
As a first form of protection of their rights, local authorities have the right to
petition: they are entitled to turn to the relevant public authority having proper
competence in the issue to request information or to propose that the authority
make a decision or issue a regulation.
A second form of protection of local government is the right of local au-
thorities to associate with other local governments and internal organisations
abroad. Thus, all municipal and county governments are entitled to cooperate
pealed by the court, as well.
304
with other local authorities in order to promote their own interests. One of the
lasting defects of the Hungarian local government system is that, since the be-
ginning of the 1990’s, there have been seven different «national» organisations.
The reason for this proliferation was that the various types of local authorities
felt it necessary to establish separate organisations. Thus, while the county self-
governments, the towns with county rights or the communes have their own
organisations, the Association of Municipal Self-governments and the Hungar-
ian Association for Local Governments have wider ambitions, namely, to rep-
resent general local government interests. The political affiliations of the vari-
ous associations are likely to have impeded unification in the representation of
local authorities’ interests.
Local authorities’ most important leverage to protect their interests is open
to all: the right to appeal to the Constitutional Court to annul legal regulations
which are held unconstitutional. But in 2010, this option was narrowed remark-
ably when a constitutional modification curtailed the power of the Court to re-
peal the legal acts concerning budgetary issues or taxation.
In spite of the wide-ranging and intensive European Union accession cam-

paigns in Hungary in the early 2000’s, it is not easy to see how and to what
extent the country’s E.U. membership affects the daily functioning of local
authorities. Sometimes this influence seems to be significantly overestimated.20
Practical experience does not meet the expectations of the deep and essential
effect of the E.U. on local governments; both the pre- and post-accession stages
of E.U. membership posed great challenges to the central government, although
not to local authorities.21 The necessary institutional and cultural adaptation
took place primarily through traditional national patterns, customs, habits and
practices.
Although the laws of the E.U. influence the daily life of municipalities in
some areas such as public procurement or the administration of E.U.-sponsored
local investments, even E.U.-related activities reach local authorities through
national legislation and the central government. This is true even in the case of
those development programs which are financed by E.U. funding. Though
20
See, for example, Barbara Lippert, Gaby Umbach, Wolfgang Wessels (2001): Europeani-
zation of CEE executives: EU membership negotiations as a shaping power. Journal of European
Public Policy, Vol. No. 6. pp. 983., 985 [arguing that post-Communist countries, like Hungary,
during and after the democratic transition had to accomplish a double or parallel adaptation,
meaning that they had to destroy their earlier structures and replace them with modern, Western-
like democratic institutions, as well as to prepare for successful integration into the E.U.].
21
Zoltán Szente: Administrative Culture in Hungary. In Thedieck, Franz (ed.): Foundations
of Administrative Culture in Europe. Nomos, Baden−Baden, 2007. pp. 111–134.
305
zoltán szente
these supports have a substantial role in the capital expenditure of local au-
thorities, they are allocated through a complicated tendering system, which is
basically influenced by the government of the day. Many municipalities are
dependent upon the central government, since they are unable to provide re-
sources of their own, as required by E.U.-funded development projects.
Another matter frequently presented as a direct impact of the E.U. on the
local government system was the regionalisation of the middle-level public ad-
ministration in order to adjust it to the alleged European patterns to absorb the
E.U. supports, to meet planning and statistical requirements, and so on. The
various claims to replace the old county structure with directly elected regions
were often promoted by referring to implicit E.U. requirements, or to unavoid-
able consequences of the Europeanization process.22 After 2006, the leftist gov-
ernment coalition plunged into a forceful regionalisation process, even if it was
not able to achieve it with respect to the local government system, since it did
not have a two-thirds majority. Since the summer of 2010, the new rightist
government has restored the former situation, declaring that the old county sys-
tem should remain an indispensable element of the entire system.
In summary, E.U.-related affairs are not on the agenda in local goverment
decision-making. There is neither closer attention to governance at the European
level nor an effective policy change, as the accession process did not require any
institutional change or other adaptation on the part of local authorities.
12.1. Bibliography
Verebélyi, Imre (szerk.): A helyi önkormányzatok alkotmányi szabályozása.

Közgazdasági és Jogi Könyvkiadó, MTA Állam- és Jogtudoányi Intézete,
Budapest, 1996.
Csefkó, Ferenc: A helyi önkormányzati rendszer. Budapest−Pécs, Dialóg Cam-
pus Kiadó, 1997.
Pálné Kovács, Ilona: Regionális politika és közigazgatás. Dialóg–Campus,
Budapest–Pécs, 1999.
Verebélyi, Imre (szerk.): Egy évtized önkormányzati mérlege és a jövő kilátá-
sai. Magyar Közigazgatási Intézet, Budapest, 2000.
Szigeti, Ernő (szerk.): Község, város, jogállás. Magyar Közigazgatási Intézet,
Budapest, 2002.
22
��
See, for example, Attila Ágh: Magyarország Európa-politikája: az európaizálás eredmé-
nyei és akadályai Magyarországon. In Attila Ágh, János Rózsás, Gábor Zongor: Európaizálás és
regionalizálás Magyarországon. ÖNkorPRess Kiadó, Budapest, pp. 162–167.
306
Horváth M., Tamás: Helyi közszolgáltatások szervezése. Budapest−Pécs, Di-

alóg Campus Kiadó, 2002.
Somlyódyné Pfeil, Edit: Önkormányzati integráció és helyi közigazgatás. Bu-
dapest−Pécs, Dialóg Campus Kiadó, 2003.
Józsa, Zoltán: Önkormányzati szervezet, funkció, modernizáció. Budapest−
Pécs, Dialóg Campus Kiadó, 2006.
Pálné Kovács, Ilona: Helyi kormányzás Magyarországon. Budapest−Pécs, Di-
alóg Campus Kiadó, 2008.
In English:
The Hungarian local government system is discussed in a Central European
comparative view in Hesse, Joachim-Jens (ed): Administrative Transforma-
tion in Central and Eastern Europe. Public Administration Spring/Summer
1993, Vol. 71, No. 1/2.
A more comprehensive and detailed work is: Tamás M. Horváth (ed): Decen-
tralization: Experiments and Reforms. OSI/LGI, Budapest, 2000, with a
chapter on Hungary.
Another description is Fekete Éva, Lados Mihály, Pfeil Edit, Szoboszlai
Zsolt: Size of Local Governments, Local Democracy and Local Service De-
livery in Hungary, in Swianiewicz, Pavel (ed): Consolidation or Fragmen-
tation? The Size of Local Governments in Central and Eastern Europe. OSI/
LGI, Budapest, 2002.
The Ministry of the Interior is responsible for local governments, while the
Ministry of Public Administration and Justice is for the reform of the public
sector: https://magyarorszag.hu/
The Local Government and Public Service Reform Initiative, under the aus-
pices of the Open Society Institute: http://lgi.osi.hu
307
Chapter 13:
LOCAL GOVERNMENT IN IRELAND
Yvonne SCANNELL
1.1. Introduction
The history of local government in Ireland is almost the same as the history
of local government in the United Kingdom until 1922 because Ireland was part
of the United Kingdom until then.1 The basic system of local government in
Ireland therefore is that enabled by the British Parliament in 1898.2 The Poor
Relief Act 1838 created the first Government agency with responsibility for
local affairs in Ireland. The 1838 Act covered the whole country with a network
of poor law boards whose members, called Guardians of the Poor, were made
up partly of justices and partly by members elected by ratepayers. Initially, the
boards operated under the control of Poor Law Commissioners sitting in Lon-
don, with the Irish branch office in the Custom House.3 In 1872, the Poor Law
Commission was transformed into the Local Government Board for Ireland.
The establishment of the Local Government Board followed from the increas-
ing range of duties that had extended the responsibilities formerly exercised by
the Poor Law Commissioners far beyond basic care for the poor and into areas
such as hospitals, disease eradication, medical services, sanitary services, and
housing. The Local Government (Ireland) Act 1898 transferred the powers of a
range of minor local government bodies to representatives elected as provided
for in that Act. This was the last important change in the local government sys-
tem before the State was established in 1922. It and the earlier and very impor-
tant Public Health (Ireland) Act 1878 were mirrored on similar legislation en-
acted in the UK.
1
See UK contribution in this book.
2
Alexander, «Local Government in Ireland» (1979) 27 Administration at p.7.
3
Most of the information in this page was obtained from Department of the Environment,
Heritage and Local ...http://www.environ.ie/en/AboutUs/HistoryofDepartment/History/
309
yvonne scannell
In April 1922, the Ministry of Local Government of the newly independent

Free State took over the central administration of local authorities. In 1924 the
Department of Local Government and Public Health was established. This new
Department took over the task of supervising the local government system
which had been performed since the 1870s by the Local Government Board
under the former British administration. The functions of the Department of
Local Government and Public Health evolved and it is now called the Depart-
ment of Environment, Community and Local Government (DECLG). It has
overall responsibility for overseeing local authorities in the exercise of their
many functions.
1.2. Post 1922
After the foundation of the State, local authorities in the 1920s and 1930s
concentrated on an expansion of the housing programme for housing the poor
and working classes, the development of other infrastructural services, an at-
tempt to introduce town planning and the provision of health and welfare
services. In 1947, health and welfare services were removed from local au-
thorities and their administration vested in the Departments of Health and
Social Welfare. Responsibility for national roads and motorways was trans-
ferred to the National Roads Authority in 1994 and a comprehensive town
and country planning system was established in 1964. After Ireland joined the
EEC in 1972, the task of implementing the vast bulk of EEC Directives relat-
ing to the environment was given to local authorities which are now the com-
petent authorities primarily concerned with implementing EU legislation. Lo-
cal authorities now implement legislation on matters such as land use
planning, waste management, water and wastewater services, building con-
trol, many roads, some educational services and public libraries, fire services
and public safety, social and affordable housing, the provision of recreational
and social amenities, aspects of protection of the built and natural heritage,
flood protection and climate change adaption and mitigation strategies. In
recent affluent years, local authorities got more involved in community de-
velopment, social inclusion, the promotion of culture and the arts although
these areas have been the first to suffer in the current recession. The Local
Government Act 2001 was the first major legislative departure from the sys-
tem of local government inherited from the British. Reform of local govern-
ment has been on the political agenda for the last 40 years and every single
Minister for Local Government has promised to do so but little has happened.
Some reforms were enacted in the Local Government Act 2001 partly to fa-
cilitate the ratification of the European Charter of Local Self-Government but
there is an almost universal recognition that the Irish system of local self
government is broken and that radical changes are needed if it is to fulfil its
functions properly.
310
local government in ireland
2. THE STRUCTURE OF LOCAL GOVERNMENT
2.1. Central Government
The Department of Environment, Community and Local Government

(hereinafter, «DECLG») has a very major role in oversight, foresight and
policy formation in relation to local government activities and overall respon-
sibility for financing local government,4 the promotion of local government
legislation and the transposition of most EU law relating to local government.
It also has a role in ensuring that local authorities implement legislation when
they are the relevant competent authorities for implementing EU legislation.
Local government in Ireland is considered to be highly and excessively cen-
tralised and the DECLG exercises a great deal of control over local govern-
ment functions mainly because it provides the vast bulk of local government
finance.5
2.2. Regionalisation
Local government in Ireland consists of a number of local and regional au-

thorities at three levels. There are eight unelected Regional Authorities estab-
lished under section 43 of the Local Government Act 1991 comprising elected
members of the city and county councils in the various regions. The size of the
Regional Authorities varies from 21 members in the Mid-East region to 37
members in the Border region. Members are not elected. They have powers to
review development plans, to prepare regional planning guidelines and eco-
nomic and social strategies and to encourage local authorities to co-ordinate
their activities and act jointly when appropriate and particularly relating to cli-
mate change adaptation. They have no real powers to enforce co-ordination so
that local government is not extensively regionalised although there are politi-
cal imperatives to do this particularly in the areas of climate change, waste
management and land use planning.6
2.3. De facto regionalisation
Local authorities have a general power to act jointly with other local au-
thorities and there is a tendency for the three Dublin local authorities to cooper-
4
See below.
5
See below.
6
Note that the Planning and Development Act 2010 recently conferred more extensive pow-
ers on regional authorities to promote regional planning guidelines and climate change adapta-
tion policies. This is seen as a move to enhance the powers of regional authorities.
311
yvonne scannell
ate and coordinate with each other more than other authorities.7 The Dublin
Transport Authority established under the Dublin Transport Authority Act
2008 ensures that the Dublin authorities cooperate on a regional basis for trans-
port matters. The Authority examines all draft development plans made by lo-
cal planning authorities to ensure that they are consistent with the Authority’s
strategy for the Greater Dublin Area and with Regional Planning Guidelines.
The need for the co-ordination of roads’ programmes in multiple local author-
ity areas resulted in the setting up of the National Roads Authority in 1994.8
Two Regional Assemblies were established in 1999 under section 43 of the
Local Government Act 1991 comprising existing elected members of city and
county councils to promote the provision of public services in their areas, man-
age regional EU financial supports and monitor the general impact of EU as-
sistance programmes.9 Regional assemblies are supported by Operational Com-
mittees comprising non-elected members from prescribed public authorities
with social and economic mandates.10 Generally however, the role and func-
tions of the various Regional Authorities in local government are marginal.
2.4. Local government
Most local government legislation is implemented by 114 local authorities

established under the Local Government Act 2001. The members of these local
authorities are elected by proportional representation every five years. All Irish
citizens and residents are eligible for election provided that they are resident in
Ireland on polling day and over 18 years of age.11 Holders of certain offices and
persons guilty of certain crimes are disqualified from holding office.12 Council-
lors come mainly from the established political parties. The jurisdictions of local
authorities are laid out in section 10 of the Local Government Act 2001 and in
the Sixth Schedule to the Act. The boundaries of areas are shown on maps pre-
pared by the Chief Boundary Surveyor under the Survey (Ireland) Acts, 1825 to
1870, or by the Commissioner of Valuation or otherwise in accordance with law.
They can be altered by the Minister for ECLG after considering the report of the
Local Government Commission at the request of local authorities.13
7
So, for example, they cooperated in providing a wastewater treatment system for all the
Dublin authorities and on providing a new water supply system which is to convey water from
the West of Ireland to the Dublin region.
8
Roads Act 1993. See http://www.nra.ie
9
Local Government Act 1991, (Regional Authorities) (Establishement) Order 1992. SI
No.226 of 1991. Better Local Government at para 1.8. See http://www.environ.ie/en/LocalGov-
ernment/LocalGovernmentAdministration/. The existence of these Regional Assemblies is hard-
ly known to the general public.
10
Ibid., art.39.
11
Constitution of Ireland, Art. 28A; LGA 2001, s.13.
12
LGA 2001, ss. 12-20.
13
LGA 2001, 59, 60.
312
Local authorities comprise directly elected members who set policies and an
executive which is responsible for the day to day running of the authority. All
the functions of local authorities must be expressly or impliedly conferred by
legislation: if they are not, they will be ultra vires. In 1956, the City and Coun-
ty Management Act 1956 reformed the administrative structure of local au-
thorities and provided for the appointment of professional managers (modelled
on the city management system in some States in the USA) to what are now
called city and county councils. The intention was to ensure that local authori-
ties were administered efficiently and to improve management structures.14 The
functions of local authorities are classified into reserved functions and execu-
tive functions. Only the elected members of local authorities can perform re-
served functions.15 Reserved functions tend to deal with policy issues or to in-
volve legislative or financial matters. Many of the reserved functions are
currently listed in various sections of the Local Government Act 2001,16 in
Schedule 14 to that Act and in other legislation conferring various functions on
local authorities.17 Examples of reserved functions are powers to determine the
policy of the local authority, to make land-use plans, to enact bye-laws,18 to
confer civic honours, to adopt the annual budget and corporate plan of the local
authority and to make an application to the Minister to change the boundaries
of the local authority area.19 All functions not specifically designated as re-
served functions in legislation are deemed to be executive functions.20 These
must be performed by the Manager or staff to whom functions are delegated
within the parameters set by the elected members.21 Many important executive
functions listed in Schedule 15 of the Local Government Act 2001 and else-
where must be performed by Manager’s order. The elected members have ex-
tensive powers to control the manner in which managerial powers are exer-
cised.22 These powers to control the county or city manager are analogous to the
powers of directors of a company. The elected members also formally appoint
14
Earlier experiments with US-type city and county managements had been carried out un-
der the Cork City Management Act 1929, the Dublin City Management Act 1930 and the Coun-
ty Management Act 1940.
15
Grange Developments Ltd v Dublin County Council (No2) [1986] IR 146. In this case the
elected members purported to transfer a power to give an undertaking to grant a planning per-
mission which contravened the development plan to the county manager. The court held that
this was ultra vires because the power to make, amend and revoke development plans is a re-
served function.
16
See LGA 2001, ss. 66,74, 75,76, 78, 85 , 116, 112, 128, 131, 134, 143, 145
17
For example, the Planning and Development Act 2000, s.19 provides that the making of a
development plan is a reserved function.
18
The Minister has power to veto bye-laws. LGA 2001s.201(4).
19
The latter power is one enshrined in Art.5 of the Charter for Local Self Government. The
booklet Local Government and the Elected Members lists 142 reserved powers. See http://www.
environ.ie/Publications/Administration/ FileDownLoad, 1960., en pdf.
20
LGA 2001, ss. 130, 149(4).
21
Ibid., s.149(6).
22
Sections 132, 134-138; 152.
313
yvonne scannell
the city or county manager (as appropriate) recommended by the Local Ap-
pointments Commission and they have power to suspend or, with Ministerial
consent, to remove him or her as provided for in the Act.23 Elected members
have power to direct city and county managers to carry out their executive func-
tions in a particular way under sections 139 and 140 of the Local Government
Act 2001. However, when elected members purported to use these powers to
direct county managers to give planning permissions for developments which
materially contravened the provisions development plans and to zone towns
without subjecting the proposed zoning to required strategic environmental im-
pact assessment procedures, the courts held that the county and city mangers
where not obliged to comply with these directions when it was unlawful to do
so.24 In general, local authorities have powers to order their own administrative
structures within the terms of the Local Government Acts 2001- 2010.
2.5. The erosion of representative local government
Misuse by the elected members of some local authorities of their reserved

powers and their refusals to make decisions necessary for the proper perform-
ance of their statutory functions and to levy taxes has resulted in the progressive
removal or curtailment of some of the reserved powers of elected members in
recent years and to their transfer to city and county managers.25 For instance,
the reluctance and refusal of local authorities to provide for landfills from 1996
to about 2006 led to a situation where regulatory ineptitude26 resulted in the cost
of land filling in Ireland being the highest in benchmarked countries during the
years of the Celtic Tiger.27 Landfill costs and gate fees for food waste are still
excessively high and were still the highest of all countries and regions bench-
marked by Forfas in 2010.28
23
Sections 145, 146.
24
Wicklow County Council v. Wicklow County Manager & Ors., Unreported, High Court, Ó
Caoimh J, 26th February, 2003; Child v. Wicklow County Council [1995] 2 I.R. 447; P.J. Farrell
& Anor -v- Limerick County Council [2009] IEHC 274.
25
See Scannell, Y, «Reflections on the Catastrophic Failure of the Irish Planning System»,
2011 Dublin University Law Journal, forthcoming.
26
See Forfas Waste Management Benchmarking Reports each year from 2006-2011 illus-
trating this.
27
See Waste Management Benchmarking Report (Forfas, 2007) at p.28 states: «Waste
Costs: Of the countries benchmarked, Ireland has the highest waste management costs for non-
hazardous landfill and biological waste treatment» In fact, only 10 countries were benchmarked
but in 2006, the cost of landfilling per tonne in Ireland often exceeded €250. It was €49 in the
Netherlands and $9 in Virginia in the USA at that time. Nor has the situation changed: the Forfas
Waste Management Benchmarking Report 2010 states at p. 8: «at an average of €142 per tonne
(including the landfill levy) the advertised standard price for landfill in Ireland remains the high-
est of nine benchmarked countries/regions. It was €80 in Scotland and € 48 in New Zealand
(both comparable to Ireland) in 2010.
28
Forfas, Waste Management Benchmarking Report 2010, p.8.
314
Instead of confronting the problem of elected members failing to discharge their

statutory responsibilities, the legislature effectively condoned bad practices. So, for
example, the function of making waste management plans which was originally a
reserved function for elected members under section 22 of the Waste Management
Act 1996 became an executive function under section 4 of the Waste Management
(Amendment) Act 2001. Waste management plans have been made by city and
county managers since 2001. When elected members failed to provide for waste
management infrastructure in their development plans, section 22(10a) of the Waste
(Management) Act 1996 was enacted to provide that objectives in waste manage-
ment plans made by a city and county manager should be deemed to be incorpo-
rated in development plans. This was the circuitous way county managers could
ensure that Ireland’s obligations under the Waste Framework Directive to provide
an integrated and adequate network of waste installations could be fulfilled.29
When county and city managers (often under pressure from their elected
members) neglected to identify specific locations for waste facilities in waste
management plans, section 26(2) of the Protection of the Environment Act
2003 provided that planning permission for a landfill could not be refused sole-
ly because the development to which the application related was not specifi-
cally referred to in the relevant waste management plan if the planning author-
ity or the Board, as the case may be, considered that the development would
facilitate the achievement of the objectives of the waste management plan.30
The Housing (Traveller Accommodation) Act 1998, provided that the adoption
of travellers accommodation plans under the Housing Act 1999, although a re-
served function, could be performed by the city or county manager if the elect-
ed members failed to exercise it.31
Even the major democratic function of making development plans32 was
adapted to accommodate elected members who would not perform their statu-
tory obligations. Section 12 (14) of the Planning and Development Act 2000
provides that the County Manager shall make so much of the development plan
as the elected members fail to make if they refuse to carry out their statutory
duties within the statutory time frame. There has even been an example of a
manager resorting to statutory emergency powers to provide halting accommo-
dation for travellers opposed by his elected members.33 In practice, elected
members operate in a culture of parochial politics where personal connections
and party loyalties frequently override considerations of good governance.
29
In Case C-492/01 [2005] ECR I‑3331, Commission v Ireland, Ireland was condemned by
the ECJ for failing to comply with its obligation to provide an integrated and adequate network
of waste disposal installations.
30
Protection of the Environment Act 2003, s.26 (2)(c ) 10AA.
31
See Delaney v Galway City and County Manager [2010] IEHC 38 where the elected mem-
bers unsuccessfully made resolutions purporting to delete a provision providing for two or three
halting sites from the travellers accommodation plan made by the county manager.
32
These are the main land use plans for every local authority area.
33
See Byrne v Fingal County Council [2001] 4 IR 565.
315
yvonne scannell
2.6. Taxation powers
Elected members of local authorities have been content to permit the trans-
fer of their powers to levy charges for services and taxes transferred to city and
county managers. So, for example, section 13 of the Local Government (Finan-
cial Provisions) Act 1983 enables managers to set charges for certain services
provided by local authorities. Although it is most unusual in Irish law to vest a
power to levy charges in an unelected person, it was noted at the time that the
politicians and managers appeared to have reached an understanding to ensure
that politicians «would be spared... the political embarrassment of voting for
new charges.... but the council left the way open for the imposition of charges
by the managers.»34 The power to levy water charges on domestic premises was
removed by section 12 of the Local Government (Financial Provisions) Act
1997. These legislative provisions restricting or removing reserved powers and
vesting them in unelected managers were enacted to enable elected members to
avoid their democratic and representative responsibilities and to facilitate them
in giving the impression to their constituents that they have not supported un-
popular developments or new or increased taxes or charges. Effectively there-
fore, the elected members of local authorities perform those functions which
they perceive will be popular with their electorate and leave most of the diffi-
cult decisions to management.
2.7. Reforms
The DECLG is currently examining proposals for the reform of local gov-
ernment. One recent suggestion which may well be adopted (if only for budget-
ary reasons) is to reduce the number of larger local authorities from 34 to 22
and to abolish regional authorities and town councils.35
3.1. The European Charter of Local Self Government of 1985
Ireland has signed and ratified the European Charter of Local Self Gov-
ernment 1985.36 The Local Government Act 2001 was enacted, inter alia, to
ratify the Charter because International Conventions do not automatically
34
Cork Examiner, 3 May 1983 quoted in Collins N., Local Government Councils at Work
(Institute of Public Administration, 2003).
35
Report of the Special Group on Public Service Numbers and Expenditure Programmes.
Prn.A9/0988(2009), Vol.2 Ch.8.
36
The Charter was signed on 7 November 1997 and ratified on 14 May 2002 largely because
the LGA 2001 met many of its required objectives.
316
become part of Irish law until transposed into national legislation.37 So, al-
though the Charter was not directly incorporated into Irish law, the Local
Government Act 2001 and earlier legislation respect certain principles in the
Charter dealing, for example, with financial resources for elected members,38
changes to local authority boundaries, the right of local authorities to act
jointly and on a regional basis and requirements that disqualifications for
elected members be based on objective criteria.39 The 2001 Act also widened
the discretion and generally strengthened the position of local government
(though the powers of the elected members of local authorities have since
been eroded)40 by the introduction of a power of general competence,41 the
recognition of the representational role of local authority members,42 statu-
tory recognition of local government associations43 and a recognition of the
distinctive nature of local authority membership- all measures designed to
align the Irish system with the provisions of the Charter. Ireland has not
signed or ratified the Protocol to the Charter on the right to participate in the
affairs of a local authority.
3.2. Constitutional Recognition of Local Self Government
Constitutional recognition of the role and function of local government was

given for the first time by the Twentieth Amendment to the Constitution in
1999. The impetus for this came also came from the decision to ratify the Euro-
pean Charter. The Twentieth Amendment inserted a new article 28A to the
Constitution which provides:
1. The State recognises the role of local government in providing a forum
for the democratic representation of local communities, in exercising
and performing at local level powers and functions conferred by law and
in promoting by its initiatives the interests of such communities.
2. There shall be such directly elected local authorities as may be deter-
mined by law and their powers and functions shall, subject to the provi-
sions of this Constitution, be so determined and shall be exercised and
performed in accordance with law.
37
See Report of the Advisory Expert Committee on Local Government Reorganisation rec-
ommending constitutional recognition of the role of local government. See also Better Local
Government at para 2.8.
38
Members of local authorities are paid a salary linked to the salary of senators under s. 142
of the LGA 2001. See Local Government (Representational Payment for Members) Regulations
2001.
39
Articles 7, 10 and 5 respectively.
40
See above.
41
S. 63.
42
S. 64.
43
Sections 128, 225.
317
yvonne scannell
3. Elections for members of such local authorities shall be held in accord-

ance with law not later than the end of the fifth year after the year in
which they were last held.
4. Every citizen who has the right to vote at an election for members of Dáil
Éireann and such other persons as may be determined by law shall have
the right to vote at an election for members of such of the local authori-
ties referred to in section 2 of this Article as shall be determined by law.
5. Casual vacancies in the membership of local authorities referred to in
section 2 of this Article shall be filled in accordance with law.
For what concerns litigation on the Constitutional Provision, Article 28A
has surprisingly featured in at least five High Court actions, mostly revolving
on eligibility for election to local authorities and the disqualifications for office
set out in Part 3 of the Local Government Act 2001. In Ring v Attorney Gen-
eral44 Laffoy J. in the High Court, analysing the section in so far as it relates
elections to local authorities, stated:
«38. In my view, whether there is a constitutionally protected right of
election to membership of a local authority turns on the proper construction
of Article 28A in the context of all of the provisions of the Constitution. An
analysis of Article 28A indicates limited constitutional protection for local
government and local representative assemblies. The role of local govern-
ment is recognised rather than guaranteed. Significantly, insofar as the role
of local government is recognised in exercising and performing at local lev-
el powers and functions, section 1 stipulates that such powers and functions
are «conferred by law.» While the constitutional protection is limited, none-
theless, Article 28A contains the following mandatory provisions which are
fundamental in ensuring that the democratic representation of local commu-
nities is safeguarded; (a) that local authorities exist; (b) that they should be
directly elected; (c) that elections shall be held at five yearly intervals; and
(d) that, as regards a core element of the electorate, eligibility to vote at such
elections shall correspond with eligibility to vote at elections for the Dáil.»45
«39. That the function of defining the parameters of the role of local
government and how it operates in certain respects is left to the Oireachtas,46
is clear on the face of Article 28A.»
44
[2004] IEHC 14. The court held that s. 13 of the LGA 2001 disqualifying a member of
parliament from being a member of a local authority was constitutional. A Constitution Review
Group and The All Party Oireachtas Committee on the Constitution had recommended that the
Constitution should contain some explicit recognition for the role of local government but the
former had also expressed some concerns about the potential impact of any new provision which
assigned definite powers to local authorities. The approach of the All Party Oireachtas Commit-
tee was similar and it recommended that the Constitution should not assign any specific functions
to local authorities, but it should recognise the general local government system and guarantee
that local elections must be held every five years.
45
The Dail is the lower house of Parliament.
46
The Oireachtas is Parliament which consists of the Dail and the Senate.
318
Therefore it must be concluded, in the words of the authors of the Irish

Constitution47 that Article 28A.1 merely recognises the role of local govern-
ment in providing a forum «for the democratic representation of local com-
munities» and for exercising and performing «at the local level» powers and
functions conferred by law. This implies «a fairly low level of constitutional
protection with a minimum legal content». Challenges to the constitutionality
of provisions in the Local Government Act 2001 by a member of parliament
alleging that a prohibition on holding two electoral offices (as a member of
local authority and as a member of parliament) and by a person alleging that
the system of replacing an elected member of a local authority by an unelected
replacement were unsuccessful.48 However, leave was given in a judicial re-
view to challenge to the constitutionality of Ministerial regulations making it
exceptionally difficult for a considerable number of people to run for election
in local authorities».49
3.3. Functions of local authorities
The Local Government Act 2001 (LGA2001), as amended extensively, is

the primary source of legislation on the role and general functions, compe-
tences and financing of local authorities although sectoral and other legislation
confers particular functions on them. For instance, local authorities have a crit-
ical role to play in protecting and maintaining the environment. The general
functions of local authorities specified in section 62 of the Local Government
Act 2001 are (i) to provide a forum for democratic representation, (ii) to carry
out functions assigned to them by statute, (iii) to take such action as they con-
sider necessary or desirable to promote the community interest in accordance
with the Act and (iv) to carry out the ancillary functions specified in section 65.
Section 63(3) specifically provides that «subject to law, a local authority is in-
dependent in the performance of its functions», – a principle endorsed in the
Charter on Local Self Government. Numerous functions are conferred on local
authorities by various statutes with the result that they are the principal environ-
mental management authorities in the State. They are the main agents for pro-
viding water and waste water infrastructure, waste disposal facilities, for litter
control, for protecting air and water quality and for licensing the vast majority
of discharges to the environment.50
47
J.M. Kelly: The Irish Constitution (Eds Hogan and Whyte) at 5.3.03 quoted in O’Doherty
-v- Attorney General & Ors[2009] IEHC 516.
48
Ring v Attorney: General O’Doherty -v- Attorney General & Ors [2009] IEHC 516.
49
Riordan v. Minister for the Environment, Heritage and Local Government & Ors [2004]
IEHC 89. The plaintiff alleged, inter alia, that the qualifications for electoral candidature should
have been set by an Act of Parliament, not mere regulations.
50
Note however that the Environmental Protection Agency licenses discharges from major
facilities such as those governed by EC Directives on integrated pollution control, large landfills
and incineration facilities.
319
yvonne scannell
On the other hand, local government is represented on the National Eco-

nomic and Social Council (NESC) which is a forum for the discussion of prin-
ciples relating to the efficient development of the national economy and for the
achievement of social justice. Elected members of local authorities have an
important role in constitutional politics: the electorate for 43 of the 60 senators
in the Senate consists of elected by members of the Oireachtas and members of
local authorities.
There is no special legislation for the capital Dublin although the three lo-
cal authorities in the Dublin area do use their statutory powers to coordinate
their activities and these three authorities cooperate with each other better than
any other group of local authorities. The Dublin Transport Authority has a
statutory responsibility to ensure that the they cooperate and coordinate on
transport matters.
County development boards comprising elected members of local authori-
ties and other unelected members representative of sectoral interests are estab-
lished under section 129 of the Local Government Act 2001 to operate under
the aegis of the relevant local authority promoting the economic, social and
cultural development of each county.

AUTHORITIES
Section 63(3) of the Local Government Act 2001 provides that «subject to
law, a local authority is independent in the exercise of its functions.» In the
past, as in the UK, it was true that local authorities could not do anything unless
it is expressly or impliedly permitted by statute.51 This was (and still is) particu-
larly the case with BE respect to the imposition of taxes and charges. Authority
to impose these must be expressly conferred.52 However, the ultra vires rule has
been extensively modified by the Local Government Act 1991 and by section
65(1) of the Local Government Act 2001 which purports to confer a power akin
to a power of general competence on local authorities.53 The latter provides :
A local authority may do anything ancillary, supplementary or incidental to
or consequential on or necessary to give full effect to, or which will facilitate or
is conducive to the performance of, a function conferred on it by this or any
other enactment or which can advantageously be performed by the authority in
conjunction with the performance of such a function.54
51
Ashbourne Holdings Ltd v An Bord Pleanala [2003] IESC 18; [2003] 2 IR 114.
52
Athlone UDC v Gavin [1985] IR 434; State (Finglas Industrial Estates) v Dublin County
Council, unreported, Supreme Court, February 17, 1983.
53
See generally, Hogan and Morgan, Administrative Law, 2010, at 224-228.
54
S. 69(4) modifies the scope of this power somewhat.
320
Section 66(3)(a) of the Act further extends the powers of local authorities to
empower them, inter alia, to do «anything considered necessary or desirable to
promote the interests of the local community.» Sections 66(3)(b) and (f) give a
number of examples of what this might comprise. However, as Hogan and
Morgan state: «Despite the comprehensiveness of this statutory language, this
provision should not be taken as having removed all restrictions on local
authorities.»55 Restrictions are inherent in the statutory provisions conferring
such wide powers and arise also from section 69 of the Act which mandates
local authorities to make a rational use of their resources, to consult with other
local authorities and some other bodies and in carrying out their functions, to
have regard to Government or Ministerial polices and the need for (i) a high
standard of environmental and heritage protection (ii) the need for sustainable
development and (iii) the need to promote social inclusion. Moreover, section
69(4) expressly provides that the wide powers conferred by sections 63 to 67 do
not empower local authorities to exercise or enjoy any function prohibited by
any legislation or to do not excuse them for failure to comply with any legisla-
tive pre-condition to, or restriction on , the exercise of any function. Broadly
speaking therefore, local authorities can exercise any power or function which
is conductive to the performance of their statutory functions provided they do
not contravene an express statutory condition or prohibition.
All local authorities also have bylaw-making powers – both general («in the
interests of the common good of the local community» and for various specific
purposes.56 The general powers and functions of local authorities are specified
in a series of Acts dealing with local government but especially in the Local
Government Act 2001, as amended. Sectoral functions are conferred under a
vast amount of sectoral legislation. So, for example, air and water management
functions and waste management functions are carried out under the Air Pollu-
tion Act 1987, the Water Pollution Acts 1977-1990 and the Waste Management
Acts 1996-2010 respectively. Planning functions are exercised by local author-
ities under the Planning and Development Acts 2000-2010, fire functions under
the Fire Services Act 1981 as amended and Building Control under the Build-
ing Control Acts 1990 to 2007.57 Local authorities also have extensive public
safety functions, including protection from fire – both preventive and through
operating the fire brigades – and promoting water safety and road safety. They
are major providers of recreation and amenity infrastructure and they provide
and maintain most public parks. Their sole social function is housing. By inter-
national standards therefore, the range of Irish local authority functions is quite
narrow. They have no role in policing, in providing public transport or personal
social services and only a small (and usually not very distinguished) role in
health and education. Because of this and because of their lack of financial re-
55
Op.cit. at 225.
56
LGA 2001, Sections 199; Local Government Act 1994, s.37(1).
57
See generally, Scannell Y., Environmental and Land Use Law (Thomson, Round Hall 2006).
321
yvonne scannell
sources, even the DECLG has admitted that local authorities are unable to re-
spond to problems which transcend their traditional functions and a former
Minister has admitted that they have «tended to be by-passed by the growth of
new forms of community development organisations, many of which are at-
tracting State and EU support.»58
The state is divided for local government purposes into 29 county councils
and five city councils.59 Within these areas there are five borough corporations
and 75 town councils.60 The powers and functions of these bodies are mainly
contained in the Local Government Acts 2001 to 2010 and in other sectoral
legislation. Local authorities have powers and indeed duties in some circum-
stances to act jointly, to share services and premises and to perform functions
jointly or on behalf of each other.61The larger local authorities (county and city
councils) are the designated water, waste management, housing, building con-
trol and roads authorities for their respective jurisdictions under various Acts of
Parliament whereas some limited functions and planning and development con-
trols are exercised by borough corporations and town councils. Morgenroth has
commented that compared with over 100 other countries the number of re-
gional and local organisations is very limited.62. The largest city council (Dub-
lin) has a population of a little over 0.5 million while the smallest county coun-
cil has a population of about 30,000 (Leitrim). The largest town council (Bray)
has a population of 27,041 whereas the smallest (Ballybay) has a population of
401. The numerical membership of local authorities is set out in the Seventh
Schedule to the Local Government Act 2001 and is limited by section 12 of the
Local Government Act 2001. It ranges from 52 members in Dublin City Coun-
cil to 9 for town councils. City and county councils may request the Minister to
alter their membership in certain circumstances and town councils may request
the Minister to increase their membership from 9 to 12 when their population
exceeds 15,000 in the last census.63.
58
Better Local Government (1996) at para 1.7
59
LGA, s.10 (1) & (2).
60
This structure is a modified version of the structure set up under the Local Government Act
1898.
61
LGA , s. 71, 85. 86.
62
Op.cit at p.3. Morgenroth states that: the German Federal State of Rheinland-Pfalz (popu-
lation of 4 million) has no less than 2,344 «governments». Other examples of jurisdictions with
more sub-national government include the US State of Colorado (population around 4 million),
which has 352 governments. The Netherlands (population of about 15 million) has 12 provinces
and 548 municipalities and Denmark (population 5.3 million) has 14 counties and 275 munici-
palities.
63
Ss.21, 22 and Seventh Schedule setting out the numbers of elected members for each local
authority.
322
Local authorities consist of elected members and an executive. The per-

formance of certain functions is reserved by law to the elected members. Ex-
ecutive functions are performed by city and county managers or persons to
whom the manager has delegated them by order. Each local authority must
have an elected chairperson and a vice-chairperson who may only be removed
for particular reasons by resolution of at least three quarters of the elected
members.64 This is a requirement in the European Charter for Local Self Gov-
ernment. Matters relating to meetings of local authorities and local authority
procedures are prescribed in some detail mainly in Part 6 of the Local Govern-
ment Act 2001 and the Tenth Schedule to that Act.65 The public and the media
are generally allowed to attend all meetings unless at least half of the elected
members vote to exclude them from all or part of a meeting giving reasons for
doing so and provided that excluding them is not contrary to the general inter-
est.66 Elected members operate through committee structures called Strategic
Policy Committees (SPCs) or in the case of town councils Municipal Policy
Committees, mirroring the major functions of the local authority. The number
of these depends on the size of the local authority and it ranges between two
and five. So, for example, South Dublin County Council has SPCs on Eco-
nomic Development and Planning; Arts Culture, Gaeilge, and Library; Hous-
ing and Social Strategy; Sport, Recreation, Community and Parks and Corpo-
rate Policy: and Environment Committees and Planning Committees.67 One
third of the members of SPCs are unelected persons representative of sectoral
interests, among others: agriculture; environment/conservation culture; devel-
opment/construction; business/commercial; trade union and community/vol-
untary/disadvantaged.68
The chair of these committees (who is an elected member) is paid an allow-

ance. Each SPC is supported by a programme manager for the relevant service
who operates under their general direction and who submits policy review pa-
pers for the service or services in question. The SPCs meet at least quarterly and
the chairperson submits a written report to the full council. The chairperson of
the authority and the chairpersons of the SPCs form a Corporate Policy Group
(CPG) which has a key role in developing local authority policies, monitoring
the performance of the local authority, and preparing the local authority budget.
64
Local Government Act 1991, s.34.
65
See LGA 2001 (Meetings ) Regulations 2001, SI No. 66of 2002.
66
Ibid. s. 45.
67
Annual Report South Dublin County Council 2008 at 13-17.
68
Thus, as Hogan and Morgan quoting Callanan state: «in theory, SPCs enhance local de-
mocracy by in the first place permitting local interest groups to participate in local governance
and secondly, allowing councillors to develop their expertise and therefore play a more proac-
tive role in the formulation of policy». Hogan and Morgan, Administrative Law (4th ed), (Thom-
son Reuters Round Hall) 2010 at 209 quoting Callanan, «Institutionalising Participation and
Governance? New Participative Structures in Local Government in Ireland» (2005) 83 Public
Administration 909 at p.916.
323
yvonne scannell
The CPG coordinates the work of the various SPCs and tries to agree policy
positions before they are presented to the full council. It is analogous to the
Cabinet. The major function of the CPG is to prepare the corporate plan for the
county or city in consultation with the county or city manager. The Association
of County & City Councils is a representative association and networking or-
ganisation for the councillors who form the elected councils of the 34 county
and city councils. It organises meetings to discuss issues of interest to local
elected members. The Association also lobbies central government on new
policy and legislation relevant to councillors’ activities. It does not have any
co-ordinating or supervisory role.
6. HUMAN RESOURCES
There are 33,889 local authority staff with an estimated pay of €1,900 mil-
lion in 2008. Staff are employed in clerical and administration positions, pro-
fessional, craft and technical, library service, fire service, IT, Finance and Gen-
eral as well as in community, arts and leisure. The Local Government
Management Services Board (LGMSB) produces an annual report on service
indicators in local authorities. The indicators measure performance by local
authorities across a range of functions including housing, planning, environ-
mental services and recreational facilities. Currently, 46 indicators are meas-
ured.69 The senior and professional staff in local authorities are recruited by the
Commission for Public Service Appointments, an independent administrative
body established by the Public Service Management (Recruitment and Ap-
pointments) Act 2004. It is bound by law to ensure that the recruitment and
selection of local authority staff is carried fairly, openly and on the basis of
merit. County and City Managers are recruited by the Commission, which is
required by law to recommend either one or two people for the post. In practice,
it recommends only one person.
The manager is formally appointed by the elected members of the local au-
thority. He or she can also be suspended or dismissed by resolution of the elect-
ed members although Ministerial consent is required to dismiss. Other staff are
normally recruited by the local authorities themselves under the guidance of the
Commission for Public Service Appointments issued under section 158 of the
Local Government Act 2001. The county or city manager is responsible for
staffing and organisational arrangements.70Staff enjoy very good conditions –
often better than those in the general civil service.71 Once in the system, promo-
69
These Reports can be viewed on the LGMSB website: http://www.lgmsb.ie/Service_Indi-
cators_Reports.aspx
70
LGA, s. 159.
71
Some senior managers in local authorities can have up to 43 days annual holidays in addi-
tion to public holidays. Irish Times, 6 April 2011.
324
tional opportunities in the administrative grades are almost exclusively restrict-

ed to existing staff so there is very little recruitment of outside expertise and
there is a huge deficit in professional expertise especially for auditing and ac-
counting. For example, a study in 2010 found that of the 99 staff across all
county and city councils engaged in internal audit functions, most did not have
formal auditing or accountancy qualifications, and three county councils did
not have any internal auditor in 2008. Local government staff are regarded as
public servants and enjoy conditions of service and pension entitlements simi-
lar to civil servants. They are more unionized than civil servants at central gov-
ernment levels and particular difficulties have been encountered with change
management.
Local authorities play a significant role in the economy where they are
responsible for expenditure of some €12 billion annually(€7 billion of
which is capital investment mainly on housing and water supplies, with the
balance of €5 billion devoted to financing current expenditure). In relative
terms, this represents the equivalent of over 6% of the country’s GDP. The
Local Government (Financial Provisions) (No.2) Act 1983 extended the
power of local authorities to charge for certain services such as water sup-
plies and waste collection. The Local Government (Financial Provisions)
Act 1997 abolished service charges and rates support grants but allocated the
proceeds of motor taxation to local authorities. The Local Government Act
1998 established the Local Government Fund, currently the major source of
local authority finance. This consists of the proceeds of motor taxation and
funds allocated by central government. The Local Government (Charges)
Act 2009 levied a tax (currently €200) on all dwellings other than principal
private residences.
All local authorities must prepare a budget and financial plans and state-
ments every year.72 Matters relating to financial procedures and audits in local
government are mainly prescribed in Part 10 of the Local Government Act
2001. Trends in local government finances are monitored annually in the Re-
turns of Local Taxation/Local Authority Estimates compiled by the DECLG.
Capital expenditure is financed largely by State Grants, including the National
Roads Authority, development levies, borrowings and own internal resources
and property sales – mainly sales of housing to local authority tenants. A break-
down of current expenditure and receipts by the local authorities is shown in the
following Table.
72
LGA 2001, ss. 103, 107, 108.
325
yvonne scannell
Table 1
Local Authority Current Expenditure Revenue (€billion)
2000 2001 2002 2003 2004 2005 2005 2007
Expenditure 2.4 2.8 3.1 3.2 3.6 3.8 4.2 4.8
Financed by:
Government Grants 0.6 0.8 0.9 0.9 0.9 1.0 1.1 1.1
Local Government Fund 0.5 0.5 0.6 0.6 0.8 0.8 0.9 0.9
Goods/Services 0.7 0.8 0.9 1.0 1.2 1.2 1.2 1.5
Commercial Rates 0.6 0.7 0.8 0.8 0.9 1.0 1.2 1.2
Total Receipts 2.5 2.7 3.1 3.4 3.8 4.0 4.5 4.7
In relative terms, the main revenue sources to finance current expenditure

by the Local Authorities are:
1. Commercial Rates (26%);
2. Specific Central Government Grants/Subsidies (22%);
3. Receipts from the provision of goods or services (31%); and
4. Local Government Fund/General Purposes Grants (20%).
7.1. Commercial Rates
Commercial Rates are one of the two kinds of property taxes levied by local
authorities. Rates are levied annually by the authorities who have exclusive rat-
ing jurisdiction within their own areas. As a general rule, rates are levied on the
occupiers of commercial and industrial properties.73 There are no rates on do-
mestic dwellings. The valuation off property for rating purposes is carried out
by a central government agency, the Valuation Office, with a right of appeal to
a Valuation Tribunal. Each year the level of the rate (known as the Annual Rate
on Valuation or ARV) is determined by the elected council as part of the budg-
etary process. The annual rates bill for commercial rates collected by the Local
Authorities had been increasing until 2009 when it amounted to over € I billion
per annum. The only other property taxes are taxes (currently €200 per annum)
on second homes levied under the Local Government (Charges) Act 2009.
7.2. Specific Government Grants
These grants are paid by the Central Government to local authorities for
specific services and /schemes that they undertake on behalf of a range of Gov-
73
Rates as a proportion of local authorities income reached a peak of over 30% in the late
1970s, but has fallen back since then following the abolition of rates on domestic premises.
326
ernment Departments. Examples of these grants that are reflected in Local Au-
thorities’ current (revenue) accounts are non-national road grants from the LGF
and third- level grants provided by the Department of Education and Science.
7.3. Receipts from the Provision of Goods and Services
Local authorities have powers to charge for services they provide, for exam-
ple, commercial water charges, housing rents, waste charges, parking charges,
and planning application fees. In many cases the charge or fee is set locally al-
though certain charges or fees are fixed at national level. In all cases, there must
be express statutory authority for raising charges and levying taxes.
7.4. Local Government Fund
The Local Government Fund (LGF) is the main source of funding for local
authority activities. It is a special central fund financed by the proceeds of mo-
tor tax and an Exchequer contribution (€520m in 2009). The Fund was set up
under the Local Government Act 1998 as a ring-fenced source of funding for
local government. It is the principal Exchequer contribution to the day-to-day
funding of local government services. Total income of €1,500m was received
in 2007, of which Motor Tax Income was €957m, Exchequer Funding €537m
and Bank Interest €3.5m.The General Purposes Grants are funded from the
Local Government Fund and these provide local authorities with the finance for
general discretionary funding of their day-to-day activities, for non-national
roads, and for certain local government initiatives. The Fund’s contribution
dropped from 26% of local authority receipts in 2000 to approximately 20% of
their receipts in 2007. However, the Financial Emergencies in the Public Inter-
est Act 2009 –enacted in response to the crisis in the public finances– has fur-
ther reduced local authority funding. Section 4 of the 1998 Act had specified a
Local Government Fund which was to comprise the income from motor tax
plus a Government contribution of €270 million to be increased annually by at
least the Consumer Price Index. The 2009 Act deletes this specification for the
Government contribution and replaces it simply with whatever amount of fund-
ing is agreed each year by the Minister for the Environment with the Minister
for Finance. In other words the base amount and formula set up by the 1998 Act
is now redundant and the Local Government Fund will essentially be funded by
whatever amount the Exchequer can bear.74
The Fund is used primarily to provide:
– General Purpose Grants €948m in 2007;
74
See http://www.oireachtas.ie/documents/bills28/acts/2009/a0509.pdf.
327
yvonne scannell
– Non-national road grants €520m in 2007; and

– Grants for other miscellaneous schemes and projects €56m in 2007.
Motor Taxation is collected by the local authorities themselves and it is
largely paid online. Revenue from these taxes amounts to over €1 billion per
annum and has more than doubled over the last decade. A summary breakdown
of current expenditures and receipts by all the Local Authorities aggregated
together for the year 2010 is given in the following Table.
Table2
Local Authority Budgets 2010 (€million)
Services Expenditure Income
Housing 778.7 667.2

Roads 919.3 563.5
Water 722.3 269.2
Planning 296.6 67.2
Environment 804.3 290.0
Amenities 396.8 63.2
Government Depts. 406.2 375.9
Miscellaneous 331.5 133.9
Sub-Total 4,655.7 2,430.2
Receipts
Commercial Rates 1,358.7
Govt. Grants 773.9
Debit/credit balances -14.2
Pensions deductions 78.9
Grand Total 4,655.7 4,655.7
7.5. Other Sources of Funding: the Environment Fund
The establishment of this Fund is provided for under the Waste Management
(Amendment) Act 2001. It is managed and controlled by the Minister for the
ECLG. Revenues from the levies on plastic shopping bags and the landfill of waste
are paid into the Fund and interest accrues on an annual basis. The Fund is used for
a range of purposes as prescribed in the Act and for such other purposes relating to
the protection of the environment, as may be prescribed by the Minister for ECLG.
Currently it is used to fund on-going expenditure such as Environmental Protec-
328
tion Agency research, waste management projects (including recycling), environ-

mental awareness and anti-litter initiatives. The following table summarises the
income and expenditure since the Fund was introduced in July 2001:
Table 3
Environment Fund, Income and Expenditure (€million)
2009
2002 2003 2004 2005 2006 2007 2008
(est.)
Income 28.3 42.3 42.9 46.2 52.1 57.7 60.3 57.5

Expenditure 3.9 18.8 49.2 42.2 40.4 56.8 85.0 79.4
Excess Inc/Exp 24.4 23.5 6.3 4.0 11.7 0.9 24.7 21.9
A local authority is a corporation sole. It may own, buy, sell or inherit prop-
erty. It may enter into a contract with any person in respect of any matter relat-
ing to its functions.75 It may enter into such contracts and make such other ar-
rangements (including the incorporation of one or more than one company) as
the authority considers necessary or expedient either alone or jointly with any
other local authority or public authority or any other person.76
On the other hand, a local authority may accept gifts of money, land or
other property on the trusts or conditions (if any) as may be specified by the
donor under section 228 of the Local Government Act 2001 unless this would
be inconsistent with, or prejudice, the effective performance of its functions.
Local authorities have extensive powers to purchase or lease lands by compul-
sory acquisition. There is no special regime for local authority property. Local
authorities own many types of property including houses, offices, public parks,
schools, recreational amenities.
9.1. Judicial Review
Any decision of a public body (which includes a local or regional authority)

may be challenged (i) by an appeal to an administrative tribunal, and/or (ii) and/or
the courts and/or (iii) by judicial review or (iv) by complaint to the Ombudsman.
75
LGA, s.229.
76
LGA 2001, s.66 (4)(i).
329
yvonne scannell
A judicial review is the appropriate remedy if the local authority exceeds the
powers granted to it by statute although sometimes a complainant is expected
to exhaust his or her administrative law remedies first if statutory provision has
been made for an administrative appeal. An attempt to define the grounds upon
which judicial review to challenge administrative decisions is available was
made by Lord Radcliffe in Smith v East Elloe RDC77 as follows: «Of course, it
is well known that Courts of law have always exercised a certain authority to
restrain the abuse of statutory powers (…). Probably most of the recognised
grounds for invalidity could be brought under this head: the introduction of il-
legitimate considerations, the rejection of legitimates ones, manifest unreason-
ableness, arbitrary or capricious conduct, the motive of personal advantage or
the gratification of personal ill‑will».
This case has been followed in a number of Irish cases. To the list of grounds
for judicial review in Smith, one can add that the exercise of a discretion which
is not in accordance with the constitutional requirements of fairness and with
respect for constitutional rights or which violates EU law will also be ultra
vires.78 In general, courts will not examine the merits of decisions in a judicial
review. They are particularly reluctant to question decisions made by the elect-
ed members of local authorities because of respect for the principles of the
separation of powers and representative democracy. In 1997, in the case of
Malahide Community Council Limited v. Fingal County Council,79 Lynch J.
said in the Supreme Court: «Any court must be very slow to interfere with the
democratic decision of the local elected representatives entrusted with making
such decisions by the legislature.»
In recent years, however the requirement to comply with provisions in Di-
rective 2003/35/EC on public participation in plans and programmes on the
environment and Article 9 of the Aarhus Convention have somewhat mitigated
the reluctance of the courts to interfere with the substantive merits of local au-
thority decisions on many environmental matters involving EU law and the
reasonableness standard of judicial review has been somewhat augmented par-
ticularly when human rights and EU law are involved.80
The question of locus standi to challenge decisions deserves to be analysed
shortly. Until recently, the only requirement for standing to initiate a judicial
77
[1956] A.C. 736 at 767. Approved by Ó Dálaigh CJ in Listowel v McDonagh [1968] I.R.
312 at 317.
78
Haverty v An Bord Pleanála [1987] I.R. 485; [1988] I.L.R.M. 545. On EU law, see Ab-
beydrive Development Ltd v Kildare County Council [2010] IESC 8 holding that it was illegal for
a county council to give planning permission in default (i.e planning permission where the coun-
cil had not made a decision within the statutory time limits) in a case where a project was subject
to environmental impact assessment.
79
[1997] 3 I.R. 383, at 398.
80
See Hogan and Morgan, Administrative Law (4th ed.) (Thomson Round Hall) (2010) at
15-01 – 15-201.
330
review was that the applicant should have a «sufficient» interest in the matter.
This was interpreted very generously and there are examples of permissions for
very important projects being challenged by unemployed actors, telephonists,
eco-warriors and others unable to pay the legal costs when their arguments
failed. Indeed, standing was so wide that the courts held that a company incor-
porated partly to avoid paying costs after the decision it challenged was made
had standing to challenge a planning decision81. Decisions relating to air and
water pollution licences, on planning permissions and on waste permits can be
appealed by any person or Non Governmental Organisation even if the latter is
not incorporated. In recent years locus standi to challenge planning and waste
decisions by way of judicial review has been narrowed somewhat and section
50 of the Planning and Development Act 2000 now provides that persons chal-
lenging these must have a «substantial» interest in the matter and «substantial»
grounds for challenging the decision.82
In general, it can be said that Irish legislation respects the principle in Arti-
cle 4(4) of the Charter on Local Self Government, requiring that local authority
powers «may not be undermined by another, central or regional, authority ex-
cept as provided for by law» but that legislation does provide for certain legal
and administrative controls over local authority functions. No administrative
authority has powers to question how local authorities exercise their functions
except the EPA and the Ombudsman. These powers are discussed below.
9.2. Administrative Appeals
Many local authority decisions can be appealed to the Planning Appeals

Board. So, for example, local authority decisions under the Building Control
Acts 1990 and 2007; the Local Government (Water Pollution) Acts 1977 to
2007; and the Air Pollution Act 1987 or any planning decision made under the
Planning and Development Acts 2000 to 2010 can be appealed the Planning
Appeals Board which is an independent administrative law tribunal.83 One of
the grounds upon which courts have sometimes denied locus standi for a judi-
cial review is when the applicant for it has not appealed the decision to the
Planning Appeals Board first. Any person may appeal decisions on air and wa-
ter pollution licences or on a building control consent to the Board whether or
not he or she has an interest in the matter. Decisions by local planning authori-
ties on applications for planning permissions can be appealed by any person
who has participated in the decision at local level whether or not he or she has
a personal interest in the matter. But a person who has failed to participate at
local level will be denied standing to make a planning appeal or seek a judicial
81
Lancefort Ltd v An Bord Pleanala [1992] 2 Irish Reports 270.
82
See Harding v Cork County Council (No.2) [2008] IESC 27; [2008] 2 ILRM 8.
83
See Annual Reports of An Bord Pleanala at http://www.pleanala.ie/
331
yvonne scannell
review of a planning decision unless there are exculpatory reasons. NGO’s also
can exercise these rights to make an administrative appeals and one NGO, An
Taisce (the National Trust) is especially privileged. It is entitled to be notified
of certain planning applications (including any where EIA is involved) and to
avail of a reduction in the normal participatory fees for participating in decision
– making. In 2009, the Planning Appeals Board varied 38.5% of all local au-
thority planning decisions appealed to it and refused planning permission in
33.5% of all planning decisions appealed to it.
A person making an appeal against decisions of local authorities to the Plan-
ning Appeals Board can question both the substantive and procedural merits of
decisions taken by local planning authorities although the courts have recently
held that these administrative appeals are not the appeals against the «substan-
tive and procedural merits of decisions» envisaged in Directive 2003/35/EEC
on public participation and access to justice on environmental matters.
9.3. Ministerial Control
As Hogan and Morgan state: «local authorities are subject to extensive and
diverse controls exercised by the Minister for the Environment»84 The most
important control is financial because the Minister provides most of their fi-
nance. The Minister has power to remove members of local authorities from
office on a number of specific grounds stated in section 216 of the 2001 Act and
to appoint a Commissioner to act as a local authority.85 He has power under
much local government legislation to exercise certain supervisory and adminis-
trative controls over local authorities. The Minister’s powers depend upon the
legislation governing the particular local government function being exercised.
So, for example, where local authorities are exercising their planning functions,
the Minister may at any time issue guidelines to them in respect of their func-
tions under the Act and planning authorities must «have regard» to these guide-
lines in the performance of their functions.86 In the interests of transparency,
guidelines must be published by the Minister, must be laid before each house of
the Oireachtas, and must be made available for public inspection.87 Similar pro-
vision is made in respect of ministerial policy directives which the Minister
may issue to planning authorities under section 29 of the Planning and Devel-
opment Act 2000 regarding any of their functions under the Act and which
planning authorities must comply with. In practice, guidelines and policy direc-
tives are published widely and are available on the Internet.88 Section 30 of that
84
Op.cit., at p.278.
85
LGA 2001, s.218.
86
McEvoy v Meath County Council [2003]IEHC 31; [2003] 1IR 208.
87
Planning and Development Act 2000, ss.28(6), (7),(5),(2).
88
For a list of significant recent ministerial guidelines see: http://www.environ.ie
332
Act prohibits the Minister from exercising any power or control in relation to a
specific case with which a planning authority is or may be concerned although
special provision is made to enable her to perform functions transferred from
the Minister for Community and Rural Affairs.89
The Minister also has power to ensure that development plans are properly
integrated with other plans and she may, if she considers that a development
plan fails to set out an overall strategy for the proper planning and sustainable
development of the area, or fails significantly to comply with the Act, for stated
reasons, require the planning authority to take specified measures or to review
or vary the development plan to ensure compliance with the Act. The planning
authority must comply with these directions.90 The Minister may order a plan-
ning authority to comply with Regional Planning Guidelines when drafting a
development plan or to comply with them by varying an existing development
plan.91
9.4. The Ombudsman
The Ombudsman’s staff examine complaints concerning the administrative

actions of local authorities and complaints concerning compliance with Part 3
of the Disability Act 2005 under the Ombudsman Act 1980 as amended. They
may not examine decisions on planning applications or decisions made by
elected members exercising reserved functions.
9.5. Controls by Superior Authorities, in particular in the domain

of environmental protection
As stated above, the powers of regional authorities powers over local au-
thorities are anaemic at best, consisting mostly of powers to encourage and re-
quire them to co-operate and co-ordinate. However, because of the catastrophic
failure of the planning system to prevent the oversupply of houses, hotels and
commercial properties in the years 2003–2008, the Planning and Development
Act 2010 provided for procedural requirements which enhance the powers of
Regional Authorities and the Minister to require local authorities to comply
with Government and regional land use and climate change policies.
The case of the Environmental Protection Agency (EPA) supervision of
environmental management functions deserves specific attention. The Envi-
ronmental Protection Agency Acts 1992–2010 confer certain powers on the
89
S. 30(2) inserted by the Minister for he Environment and Local Government (Performance
of Certain Functions) Act 2002.
90
Planning and Development Act 2000, s.31(2).
91
Ibid., s.27(2).
333
yvonne scannell
EPA over the way local authorities perform their statutory environmental
protection functions. In particular, the Protection of the Environment Act
2003 increased and fortified the EPA’s powers to ensure that local authori-
ties implement environmental legislation properly. The supervisory and en-
forcement functions of the EPA may have been introduced to ensure that
Ireland complies with EU Directives on environmental law. Under s.56 of
the Environmental Protection Agency Act 1992, the EPA may, on its own
initiative, and must if requested by the Minister, give information or advice
or make recommendations for the purposes of environmental protection to
an individual local authority or to local authorities generally in relation to
the performance of their statutory environmental functions. Local authorities
are obliged to have regard to the EPA’s communications. The EPA has spe-
cific powers in relation to drinking water, landfill sites and urban wastewater
treatment.
The EPA has power under section 63(1) to request a local authority to
provide it with information within a specified period in relation to its per-
formance of a specific or general statutory environmental protection function.
The local authority is obliged to comply with this request. Under section
63(2) the EPA may notify a local authority of its intention to carry out an as-
sessment of the local authority’s environmental protection functions (either
its general functions or its functions in a specific case). Having exercised the
above powers and having considered any information obtained during the as-
sessment process, the EPA may take all or any of the following measures
under section 63(3):
(a) issue such advice and recommendations as it considers necessary;
(b) provide, on agreed terms and conditions, such assistance, support or
guidance as it considers, in consultation with the local authority, would
be helpful; and
(c) without prejudice to its other powers under the Act or other enactments,
issue a proposed direction requiring the local authority within a speci-
fied period to carry out, cause to be carried out or arrange for, such ac-
tion in relation to the function in question as the EPA considers neces-
sary for the purposes of environmental protection.
The local authority has then got a specified period to make observations in
relation to the proposed direction. After that period, and having considered the
observations, the EPA may confirm the proposed direction with or without
modification or decide not to confirm it. If it confirms the direction and issues
it to the local authority under section 63(5), the latter must comply with it with-
in a specified period. A local authority will be guilty of an offence under sec-
tion63(8) if it fails to comply with a request under section63(1) or (2), or with
a direction under section63(5) or (6). Individual officers of a local authority
may be liable for the same offence under section 8(2) because local authorities
334
are bodies corporate under section 11(7) of the Local Government Act 2001
unless they can avail of statutory immunities. The EPA or any person can bring
summary prosecutions. The Minister has extended the EPA’s powers under
sections 100, 101 and 102 of the Act to enable it to enforce water and air pollu-
tion and waste management controls against local authorities.92
9.6. Financial Controls
9.6.1. Local Government Audit Service (LGAS)
The LGAS (established under the Local Government Act 2001 and based in
the DECLG) audits 186 local bodies such as city, county, borough and town
councils, regional authorities and assemblies and some other miscellaneous
bodies. It is independent in the performance of its functions. The LGAS pro-
vides independent scrutiny of the financial stewardship of local authorities. It
audits accounts in accordance with a Code of Audit Practice and carries out
Value for Money (VFM) audits.93 Local authority staff and elected members
have a statutory duty to co-operate with the LGAS. An auditor may disallow
illegal or unfounded payments, surcharge such payments on the persons re-
sponsible whether on members or the manager, and charge the person the
amount of any loss or deficiency incurred through misconduct or negligence.
The manager must submit both the audited accounts and the auditor’s report for
consideration by the elected council.
9.6.2. The power to surcharge
The local government auditor has power to raise a surcharge on elected

members of local authorities and members of the executive if they make illegal
or ultra vires payments, or payments which are «unfounded», a phrase which is
taken to mean «unnecessary or extravagant» or where for any deficiency or loss
is incurred by negligence or misconduct.94 Hogan and Morgan note that for
practical purposes the surcharge is not often imposed «especially given the fre-
quency and rigidity with which the new statutory controls operate» but that «it
still dangles like a sword of Damocles over any councillors who might- through
expediency or something worse- be tempted by illegality.» It has hardly ever
been used.95
92
See Scannell Y., Environmental and Land Use Law, (Thomson Round Hall) (2006) at
981-997 on the EPA’s enforcement powers against local authorities.
93
See http://www.environ.ie/en/Publications/LocalGovernment/AuditService/#d.en.24147.
94
Local Government Ireland Act, 1872, s.12, LGA 2001, s.112; Local Government (Ireland)
Act 1902,s.20. See Hogan and Morgan, op.cit., at 232-233.
95
Op.cit. at p.231.
335
yvonne scannell
9.6.3. Value for Money Audit Unit
The Value for Money audit unit of the LGAS published 24 VFM reports,
guides and handbooks to date. During 2009 the Unit broadened its sphere of
activity by carrying out review and spot-checks, on behalf of the Department,
of capital projects undertaken by local authorities in accordance with Depart-
ment of Finance guidelines. A copy of the audited financial statement and any
associated statutory audit report must be given to every member of the local
authority for consideration. Where appropriate, the implementation of the rec-
ommendations contained in the reports is monitored at the annual audit of the
individual local authority’s annual financial statements.
Despite the fact that most EU environmental legislation is implemented

by local authorities, they have very little direct contacts with the EU and
there appears to be no formal mechanism to properly appraise them of their
legal obligations under EU law. Each Regional Authority in undertaking its
functions has an EU Operational Committee. The EU Operational Commit-
tee assists the Regional Authority in matters relating to EU assistance and
reviewing the implementation of various EU Operational Programmes in a
region.
Ireland is divided into two (NUTS II level) Regions for EU Structural
Funds purposes: The Border Midland & Western Region (BMW) and the
Southern & Eastern Region (S&E ). The two new Regional Assemblies were
established to:
– to manage and monitor their respective Regional Operational Programmes
under the Structural Funds,
– to promote coordination in the provision of public services across their
areas;
– to monitor and make proposals in relation to the general impact of EU
funding;
– to make public bodies aware of the regional implications of their policies
and plans.
The Assemblies also host and undertake various key functions relating to
INTERREG/Territorial Cooperation programmes on behalf of Ireland.96 Mem-
bers from the Regional Councils represent Ireland at the EU Committee of the
Regions. The Members are not elected but are nominated by the various local
authorities in each region.
96
http://www.iro.ie/regional_assemblies.html
336
Athlone UDC v Gavin [1985] Irish Reports 434.

O’Keeffe v An Bord Pleanala [1993] 1 Irish Reports 39
Lancefort Ltd v An Bord Pleanala [1992] 2 Irish Reports 270.
Ashbourne Holdings v An Bord Pleanala [2003] IESC 18; [2003] I Irish Re-
ports 114.
Clarke -v- South Dublin County Council [2008] IEHC 84
Abbeydrive Development Ltd v Kildare County Council [2010] IESC 8
11.2. Bibliography (Books)
Hogan and Morgan, Administrative Law (4th ed), (Thomson Reuters Round
Hall) 2010.
Scannell, Y.: Environmental and Land Use Law (Thomson Round Hall) 2006.
Simons, G.: Planning and Development Law (Thomson Round Hall) 2006.
Butler, P.: Keane on Local Government (2nd ed) (Bloomsbury Professional)
2003.
Department of the Environment, Communities and Local Government http://

www.environ.ie/en/
Planning Appeals Board http://www.pleanala.ie/
Irish Judicial decisions http://www.bailii.org
Legislation http://www.attorneygeneral.ie/
337
Chapter 14:
LOCAL GOVERNMENT IN ITALY
Luciano VANDELLI
The Italian local system is rooted in the ideas of the 1798 French Revolution
and, specifically, in that of «Pouvoir municipal». In this context, the figure of
the «prefect» (prefetto), with its strong Napoleonic influence, was pivotal in
making the «revolutionary whirlwind» a «regular mechanism». The model was
incorporated in the process of administrative «colonization»of power, and firm-
ly adhered to by Italian patriots, particularly in the Piedmont region, which was
ruled by the Savoias, and with Italian Unification (1861) and the administrative
Unification Laws (1865) that extended throughout the territory of the new state.
Historically, the system is based on the following key elements:
(a) Generalization of the municipal system rather than the system based on
acquired or conceded privileges, that extended throughout the state ter-
ritory before Unification.
(b) Institution of a municipality for every territorial community, regardless
of its size. In Italy, the division of the territory into municipalities was
the result of pre-existing demands and administrative traditions, that
had already led to widespread territorial fragmentation. At the time of
the Unification, there were 7,720 municipalities, which is similar to the
current number of 8,096. More than 50% of these municipalities have
populations of fewer than 3,000 inhabitants (768 have less than 500).
(c) Uniformity of the municipal system, generated by the implementation of
uniform rules for all municipalities, regardless of their dimensions. Italy
opted for the French-Piedmontese system of juridical uniformity, as
stated in key administrative legislation enacted during the national Uni-
fication (Law No. 2248 of 20 March 1865), instead of the Austrian
model of differentiation;
(d) Adoption of an electoral system for local authorities, particularly, for
the city Council, as an essential characteristic of local democracy;
339
luciano vandelli
(e) Assignment of inherent and delegated functions to the municipalities

and a dual role (in political and administrative terms) for mayors. The
first category («inherent functions») refers to the intrinsic affairs of the
community and concerned only local interests and relationships; the
second category («delegated functions») involved connections with
state government. There was also a connection between the bipartition
of functions and the double configuration of the municipal bodies, par-
ticularly in reference to mayors, who were at the same time the leaders
of municipal administrations and agents of the state administration. In
this latter capacity, mayors were a cog inserted in a hierarchical system,
directly dependent on State authorities.
(f) Controls. State authorities had broad and controlling powers over local
government to protect the general interests of the population.
(g) Provincial level and the prefect (prefetto). The entire state territory was
divided into districts «for all subjects concerning public surveillance
and the quick execution of affairs». Every district («provincia») had an
elective college and a prefect, who was responsible for implementing
the laws and orders passed by the Ministers. This established the dual
nature of the Province as a local authority and the Province as a District
of the State Government.
(h) The «prefect» played a double role: on the one hand, that of a repre-
sentative of the central government in the territorial periphery, interact-
ing directly with ministers, transmiting their orders to lower levels of
government. On the other hand, the role of a controlling authority, who
supervised the activity of local authorities.
These original characteristics, dating from legislation enacted during the
French Revolution and Napoleonic times, were incorporated in the legislation of
the Kingdom of Piedmont-Sardinia in 1859, and extended a few years later, under
the Laws of Administrative Unification in 1865, to the entire new Italian State.
Since then, municipal and provincial legislation has kept continuity, as ex-
pressed in the Consolidated Acts on Local Government of 1915 and 1934. The
more recent Act, adopted during the fascist period, eliminated the direct elec-
tion of municipal bodies in exchange for the unique «podestà», instituted by the
Government. Following the Liberation, in 1945, the «podestà» was eliminated
and the legislation passed in 1915 was re-enacted. Other aspects of the 1934
Act were operative even after ratification of the 1948 Constitution, which es-
tablished local autonomy as a fundamental constitutional principle (art. 5).
The Constitution also granted legislative powers to regions (art. 20), but this
authority was not fully transferred nation-wide, until 1970. Previously, only five
Autonomous Regions with special statutes had obtained these competences: Aos-
ta Valley, Trentino-Alto Adige/Südtirol, Friuli-Venezia Giulia, Sicily, Sardinia.
Legislation on local authorities was renewed under the Act No. 142, 1990,
the first general law on local authorities passed during the Republic, and a few
340
local government in italy
years later, Act No. 81, 1993, introduced the direct election of the mayor and
the president of the provinces.
In 2000, these reforms were consolidated in a new act (hereinafter, «the
Consolidated Act»). This legal amalgamation was followed by the amendment
of Title V of the Constitution, pertaining to autonomies. These constitutional
amendments, however, are still pending a full incorporation into legislation.
During the summer of 2011 several legislative proposals for the reorganisa-
tion and reduction in the number of municipalities and provinces took place.1
However, their final concretization and their date of effectiveness are still
murky at the time of writing this contribution.
In Italy, the fundamental levels of the local government comprise three

types of territorial bodies: the Municipality, the Province and the Metropolitan
Town. In addition, there are other local authorities of an associative nature, for
instance the unions of municipalities (unioni di comuni).
There are 8,096 municipalities, of which 7,467 are very small (with fewer
than 15,000 inhabitants). Almost 2,000 have less than 1,000 inhabitants. The
average population in the municipalities is about 7,250 inhabitants. The number
of provinces is 110 provinces, the average population being close to 563,000
inhabitants. There are also about 650 unions and upland authorities. Finally,
and although they are not «local government» in pure sense, it is noteworthy to
point that Italy has 20 regions, of which 15 have «ordinary» status and 5 are
autonomies with a special status.
2.1. Municipalities
The municipality («comune») is the local authority nearest to citizens and

represents the interests of the local community. According to the 2000 Con-
solidated Act, municipalities «perform the administrative functions for citizens
and the municipal territory, such community services, the general framework
for land-use economic development, and any other responsibilities not assigned
to other government bodies by State or regional law, according to their compe-
tences». Every municipality has a city council and a mayor, who are elected
directly by the citizens, and a collective executive body – the Executive Board
– composed of aldermen nominated by the mayor.
1
The proposal, embodied in a Decree of 11 August, 2011, envisaged a dramatic reduction of
local authorities in the country: (a) the elimination of all provinces having less than 300.000 inhab-
itants, 36 out of 110; (b) the obligatory fusion-merger of all municipilaties having less than 1000
inhabitants, whose number amounts to 1,970 local entities (editor’s note).
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2.2. Provinces
The province («provincia») is a district-type local authority of a larger geo-

graphical scope. These bodies have broad competences, defined by the Con-
solidated Act, which include «administrative functions of provincial interest
that concern large inter-municipal zones or the whole provincial territory»,
with particular reference to sectors such as soil protection, road networks,
transportation, environment, waste, secondary education, and land use plan-
ning. Provinces have the same type of government as municipalities, with a
council and a president who are elected directly.
2.3. Metropolitan Towns
As established by the Constitution, the «metropolitan town» (Città metro-

politana) is a substitute for the province and has unique functions. It refers to
Italy’s biggest urban areas. According to current legislation, Turin, Milan,
Genoa, Venice, Bologna, Florence, Naples, Bari, and Reggio Calabria are des-
ignated metropolitan towns, as are towns established by autonomous regions
with special statutes such as Palermo, Catania, Messina, and Cagliari. Al-
though, on paper, the figure exists, no metropolitan towns have yet been consti-
tuted. For what concerns Rome, the capital city of the country, it has a particu-
lar regime, according to the Constitution. The applicable legal rule is,
transitionally, Decree n. 156, issued in 2010.
2.4. Unions of Municipalities
Unions of Municipalities (unione di comuni) were considered precursors

of the fusion among associated municipalities, but are now the principal as-
sociative level consisting of «local authorities comprised of two or more
municipalities, which jointly exercise the functions determined by their
competences». There are also other associative forms such as consortia and
mountain authorities (comunità montane), but recent State provisions aim at
discouraging or suppressing them. The regions have the legislative compe-
tence in this area.
The European Charter of Local Self-Government was ratified by Italy on 30

December 1989. Article 117 of the Italian Constitution affirms that the State
and the regions must legislate in accordance with the terms of international
342
agreements. In this sense, the national Constitution had already incorporated

principles regarding local authorities, so national legislation did not require
readjustments to comply with the terms of the Charter.
3.2. The Constitution
Italy’s present Constitution (enacted 1948), establishes at section 5 the prin-

ciples of autonomy and decentralization (devolution), by stating that: «The re-
public, one and indivisible, recognizes and promotes local autonomy; it fully ap-
plies administrative decentralization of state services and adopts principles and
methods of legislation meeting the requirements of autonomy and decentralization»
(decentramento).
The proclamation of autonomy implies the acknowledgement of munici-

palities and provinces as representative territorial bodies. It also recognises
public powers vested in them to pursue their aims and interests, particularly
in relation to their respective communities, according to their own political-
administrative direction, which can be different and independent of that of
the State. These powers are varied and are accompanied by guarantees that
ensure the proper election of political bodies, the limitation of controls, and
the coherence between the availability of economic resources and the func-
tions to be implemented to ensure their positive outcome, etc. These concepts
are found in the Second Part, Title V of the Constitution, which was deeply
amended in 2001.
The Constitution declares that municipalities, provinces, and metropolitan

towns, as well as regions and the State, constitute the basic elements of the
Republic (art. 114 par. 1). They all enjoy autonomy (art. 114.2) and regulatory
powers (art. 117.6). Apart from having specific administrative functions, local
authorities also have the power to organize and develop these functions (art. 117
par. 6). Moreover, the Constitution declares that «Administrative functions be-
long to the municipalities except when they are conferred to provinces, metro-
politan cities, regions, or the state in order to guarantee uniform practice; the
assignment is based on the principles of subsidiarity, differentiation and ade-
quacy» (art. 118, par.1).
On the other hand, the Constitution allows municipalities, provinces, metro-

politan towns and regions (art.119) to have financial autonomy in the area of
revenue and expenditures. Specifically (see, infra, point 7), these bodies have
autonomous sources of revenue and can establish and apply tributes, and share
the revenue from taxes collected in their territory. Also, local entities with less
tax capability per inhabitant have access to an equalisation fund. On the whole,
resources generated by these sources allow the governing bodies to finance
their public functions.
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3.3. Allocation of legislative powers between the State and the regions
The Constitution does not specifically address legislative competences in

the matter of «local authorities», nor does it confer this power exclusively to
State or to regional legislation. On the other hand, it does not include this
subject among the concurrent legislative competences in which regions create
law. Legislation conferred to the State covers three topics: (a) the electoral
system; (b) the governing bodies; and (c) the fundamental functions of mu-
nicipalities, provinces and metropolitan towns (art. 117 par. 2 lett. p). The
criterion establishes that «regions generally have legislative power with re-
gard to subjects not expressly reserved to State legislation» (art.117, par. 4).
By the same token, regions legislate most of the subjects concerning the ad-
ministrative activities of local authorities, i.e. social assistance, trade, crafts-
manship, local transports, traffic, road network, tourism, local police, culture,
libraries, etc.
Subjects expressly addressed in the Constitution are occasionally included
among the concurrent legislative competences between State and regions (art.
117 par. 3), such as the governance of the territory or healthcare, or are de-
picted as belonging to the exclusive legislative power of the State (i.e. the citi-
zenship, Town hall and registry office: art. 117 par. 2, lett. i).
Under the present constitutional arrangements, regional legislation is now
becoming extremely important, since regions must apply the principle of sub-
sidiarity within their territories. Since 1970, however, there has been little har-
monization as to which functions should be delegated to local authorities. The
result has led to a varied and fragmented framework.
3.4. Legislation concerning local authorities
The most important piece of legislation on local authorities is the Consoli-

dated Act, approved by Legislative Decree No. 267 on 18 August 2000. The
Act deals with the organization of local authorities, and although the text has
undergone several amendments since its approval, it is currently in force and
awaiting full adaptation pursuant to the constitutional reform of 2001.
Other pertinent legislation subsequent to the reform is the Act No. 131 of 5
June 2003; the Act No. 3 of 18 October 2001 (arts. 1-4, 7-11) and, particularly,
the Act No. 42, of 5 May 2009. The latter implements art. 119 of the Constitu-
tion, in the matter of fiscal federalism and the financial autonomy of regions
and local authorities.
Other significant legislation includes:
– Decree No. 616 of 24 July 1977
– Act No. 382 of 22 July 1975
344
– Legislative Decree No. 112 of 31March 1988, which confers the functions
and administrative duties of the State to the regions and local authorities.

AUTHORITIES
4.1. The «fundamental» functions
According to the Italian Constitution (letter (p), art.117, par. 2), the State has
exclusive legislative power to regulate the «fundamental functions of munici-
palities, provinces and metropolitan towns» (funzioni fondamentali di Comuni,
Province e Città metropolitane). There is no specific statute on the matter, but
the Act No. 42 of 2009 (the law on fiscal federalism) gives an idea as to some
fundamental functions. This law provisionally identifies the fundamental func-
tions of municipalities as «the ability to implement the said law... once it is ef-
fective». This involves two sets of activities: general functions, pertinent to all
authorities, and specific activities that will correspond individually to each au-
thority. For example, under this Act municipalities will be responsible for local
police, public education (including day nursery), road networks and transporta-
tion, territory and environment (except integrated urban water management,
among others), and social services. The provinces will handle public education
(including school housing), transportation, land management, environmental
conservation, and some labour and job market issues.
A bill, which is currently in Parliament (Italian Senate No.2259), also ad-
dresses the functions of local government and offers a more detailed list of ac-
tions. Municipalities will have the following specific functions, among others:
coordination of commercial activities and of premises; simplification of paper-
work for businesses; tax inventory and assessment of real property; housing;
city planning and municipal building codes; civil defence; local road networks
and traffic regulations; transportation; social services, etc.
For what concerns Provinces, they will be responsible for the following
matters, among others: the coordination of provincial territorial planning; soil
protection; environmental protection, including controls on efficient water use
and emissions; planning of provincial waste disposal; conservation and man-
agement of fish and game; transportation, etc.
Therefore, at present there are two lists of «fundamental functions» for local
authorities: one established in Law No. 42 and a forthcoming one, established
in the aforementioned bill. Initially, it was thought that the list included in Law
No. 42 would be in effect for five years (art. 21, par. 1, lttr. e) but this rule has
been modified by Decree-Law No. 78 of 2010 (validated by Law No. 122, of
30 June 2010), which also makes it obligatory for smaller municipalities to
carry out «fundamental functions» through conventions or unions of munici-
palities (see infra.).
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4.2. Decentralization of functions to local authorities
In the course of legislative evolution, the competences of local authorities

were redefined as part of important processes of decentralization that occurred
in the 70’s and 90’s. The first was characterized by Decree No. 616 of 24 July
1977, that reclassified local activities into three «organic sectors» associated
with social services, economic development and land planning. Subsequently,
new reforms took place in the 90s, which inspired «administrative federalism»
(Law No.59, 15 March 1997). Consequently, regions and local authorities were
granted «the functions and administrative duties relative to the interests and
promotion of the development of their respective communities», on the basis of
criteria such as subsidiarity, efficiency and low running costs, responsibility
and uniqueness of the administration, differentiation in the allocation of func-
tions, and adequacy. Based on these criteria, Decree No. 112 31of March 1998,
implemented the delegations and expanded the functions exercised by local
authorities, particularly those of provinces.
4.3. Competences of municipalities and provinces
Once State legislation was in place, two decrees were passed that set the
framework for delegating competences among municipalities and provinces:
Decree No. 616 (1977) and Decree No. 112 (1998). The areas in which func-
tions were granted to local authorities included agriculture and forestry, crafts-
manship, industry, energy, mines and geothermal resources, fairs, markets and
trade, tourism and the hotel industry. Some of these areas pertain only to re-
gional jurisdiction (agriculture, craftsmanship, tourism), while others are «con-
curring» competences (competenze concorrenti): this happens in matters such
as occupational health and safety, professions, support of innovation in produc-
tion, transportation and the national distribution of energy.
Functions associated with territory, environment and infrastructure include
city planning and environment (parks and natural reserves, control of atmos-
pheric pollution generated by heating and traffic in urban areas, and noise pol-
lution) and, in provinces, water pollution monitoring, waste disposal sites and
waste transformation plants, and waste disposal. As for infrastructure, compe-
tences include road networks, waterworks and public works, transportation and
traffic regulation, civil defence, tax inventory and assessment of real property.
Local authorities have also to provide community services relating to local po-
lice, health, social services, assistance, school education, vocational training,
school assistance, cultural activities, museums and libraries.
Local authorities play a key role in economically significant services such as
water supply, waste disposal, gas and energy. Although European Union regu-
lations permit private companies to manage public services through public bid-
ding procedures, local authorities are still responsible for the organization and
scope of the services, regulations and tariffs.
346
4.4. Implementation of public functions: conventions and agreements
The Constitution (as amended in 2001) advocates a division of functions

based on the principles of subsidiarity, differentiation and adequacy. This is not
an easy task in a country like Italy with almost 8,100 municipalities, 6,000 of
which have populations of less than 5,000 inhabitants, and where organiza-
tional, territorial and financial insufficiencies are evident.
Municipalities are heterogeneous, with populations ranging from 3 million
to less than 30 inhabitants. As of this writing, the biggest towns have yet to
implement the concept of the «metropolitan town», while the smallest munici-
palities have not advanced in the process of fusion of municipalities. Given
these organizational and financial deficiencies, some way of cooperation or as-
sociation is unavoidable. In this direction, the Act No. 142 (1990) establishes a
general framework regarding consensual instruments such as conventions and
planning agreements, and structural associative forms with legal status in the
form of consortia and unions of municipalities, for a better discharge of local
responsibilities.
For its part, Decree No. 78 of 31 March 2010 and the subsequent Act No.
122 of 30 July 2010 require that populations with less than 5,000 inhabitants
(3,000 inhabitants for those in mountains authorities), engage in intermunicipal
conventions or unions of municipalities, to carry out their basic functions.
The governmental organization of municipalities and provinces is character-

ized by the direct election of the assembly (council) and the monocratic leader-
ship of the mayor and the president of the province.
5.1. City and provincial councils
The city and provincial councils are composed of several members, whose
number varies according to the demographic dimensions of the authority. Be-
fore the cutbacks set by the 1993 law, councils had up to 80 members, but now
the number fluctuates between 60 (for municipalities with less than 1,000,000
inhabitants) and 12, including the mayor, who is a councillor (for municipali-
ties with less than 3,000 inhabitants). As of the 2011 elections, the number was
further reduced in 20%, so now the councils of the largest municipalities vary
from 48-60 members, while the smallest municipalities will have 10. The min-
imum and maximum number of members for the provincial council varies from
45 members for populations higher than 1,400,000 inhabitants, and 24 when
the province has less than 300,000 inhabitants.
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The electoral system varies according to whether the municipality’s popula-

tion is smaller or larger than 15,000 inhabitants:
(a) Small municipalities elect their council according to a majority system
and the mayor is elected on a one-ballot system. Every city mayor can-
didate is listed on the ballot pertaining to the roster of candidates for
councillor. The candidate receiving the most votes is elected mayor; the
associated list obtains 2/3 of the seats, whereas the other seats are shared
proportionally among the other electoral rolls.
(b) Big municipalities elect their mayor by absolute majority of the valid
votes. If no candidate obtains the majority, a second round of voting is
held, opposing the two candidates who obtained more votes in the first
round. The system contemplates different complicated scenarios for the
seats in the council (majority system, plus the application the d’Hondt
rule), which can only be mentioned here. It is important to stress that the
system allows the voter to express a preferential vote for a candidate
from the electoral roll.
(c) In the provinces, voters elect the president according to the terms previ-
ously described for the biggest municipalities, with a double ballot. The
Council is elected according to the d’Hondt proportional system with a
majority bonus, on the basis of a first-past-the-post system. The group
or groups of candidates linked to the elected president (not reaching
60%) is assigned 60% of the seats, and the remaining seats are shared
proportionally among the minority rolls.
5.2. Organization and powers of the Council
The Council is an integral unit of Italy’s local self-government, with spe-

cific functions and organization. As of the reform that introduced direct may-
oral elections in the biggest provinces and municipalities, the Council is chaired
by its own president, elected autonomously among the councillors. In munici-
palities with less than 15,000 inhabitants, the Law allows the mayor or the
president of the council to preside. The role of the Council president is well
defined. Among several specific tasks, the president convenes the meetings and
manages the tasks of the Council, keeps an eye on the relationships among po-
litical groups to safeguard the body’s proper functioning, and ensures the re-
spect of the rights of every councillor.
The Council can form committees that prepare the background information
for Council decisions, institute controls or conduct investigations. They are set
up according to proportional criteria, taking into account the political groups
represented in the body. Minority groups are protected by different representa-
tive devices. The organization and functioning of the Council (groups, commit-
tees, nature of the sessions, summons, development, voting, terms of investiga-
348
tion and controls, etc.) is generally contained in the general laws and regulations
on local government, and in the by-laws that each Council may approve. Such
by-laws must be approved by absolute majority.
In the past, one of the Council’s competences was to deliberate on all sub-
jects relating to municipal administration that were not attributed to the Execu-
tive Board or to the mayor. This burdened the Council with an enormous
number of decisions that were often unimportant. Now the Executive Board has
the general competence to adopt all acts of administration not expressly re-
served for other governing bodies. The Council now controls only a specific
series of acts considered «fundamental» such as statutes and regulations, pro-
grammes, plans, balance sheets, constitution of associations, public services,
and creation of tributes.
The city or provincial councillors have different rights:
– to assume initiatives on topics in which the Council has competence;
– to request that the Council be convened;
– to formulate questions and motions to which the mayor or the aldermen
must respond;
– to receive news and information from the offices of the municipality and
the province, from public companies and associated bodies;
– to receive a fee for attending the sessions of the Council and the committees.
Apart from the renewal of the Council, councillors loose their posts under
the following circumstance: death, resignation or forfeiture (for example, ineli-
gibility or incompatibility). Normally, the council’s mandate expires five years
after election, but it may also be dissolved by decree of the President of the
Republic, in extraordinary and exceptional circumstances such as the perpetra-
tion of unconstitutional acts, serious and persistent breaches of law or public
policy; conditioning by or infiltration of organized crime; the resignation of the
majority of the councillors; or when the annual local budget is not approved
within the term.
5.3. The mayor and the president of the province
The mayor (sindaco) and the president of the province play a fundamental
role in the functioning of the local authority. In particular:
– they convene and chair the Executive Board (the Council in municipali-
ties);
– they control the functioning of services and offices and the execution of
local decisions, measures, plans and policies;
– they exercise other functions established by law, statute or regulation;
– they nominate aldermen;
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– they attribute and define senior management positions;

– they nominate and revoke representatives of the municipality and the
province companies and institutions.
Unlike the president of the province, the mayor is the chief of the municipal
administration and commissioned officer, and exercises many state functions,
under the management and control of the prefect and the Government. The
mayor’s functions involve the following tasks and duties:
(a) Town Hall and the Registry Office. As a Registrar, the mayor (directly
or through his delegates) issues certificates, receives birth and death
registrations, and officiates civil weddings. He also ensures the correct
procedures for elections, military service and statistics;
(b) Police. In municipalities where there is no police force, the mayor is the
local public safety authority;
(c) Emergencies. The mayor adopts «extraordinary emergency ordinanc-
es», to prevent and eliminate serious dangers that threaten the safety of
citizens due to an unexpected event in which normal solutions estab-
lished by regulation are inadequate. According to the Constitution, these
ordinances should be adopted in a motivated act in accordance with the
general legal principles. Recently, the mayor has also been conferred
important powers of ordinance in the domain of public and urban safety
(Law No. 125 (2008)).
It is important to emphasize that the form of government adopted for munici-
palities and provinces in Italy reciprocally links the terms of office of the Council
and the mayor. For example, if the mayor resigns, the Council must be dissolved,
and if the Council approves a motion of no confidence this provokes the resigna-
tion of the mayor, and consequently, the termination of the Executive Board.
5.4. Town and provincial Executive Boards
The Executive Board is composed of the mayor, who acts as chairman, and
an even number of aldermen, established by the statute, in accordance with law.
The maximum number has changed frequently, but is presently set at 25% of the
councillors. The mayor and the president of the province nominate the aldermen.
In smaller municipalities (less than 15,000 inhabitants) citizens who are not
councillors may be chosen if this is expressly established in the statute. The Ex-
ecutive Board and the council are separate in the bigger municipalities and the
provinces, where the office of alderman and councillor are incompatible.
The aldermen are members of the Executive Board, and take part in the for-
mation of collective decisions. Beyond this function, they have other duties that
are performed individually. Termination of office for an alderman may occur by
350
resignation or revocation. The latter is very discretionary and reveals the degree
to which this relationship is based on trust between the mayor and the aldermen.
The Executive Board cooperates with the mayor or the president of the
province in governing the municipality or province. It adopts acts that are not
reserved for the Council by law or statute or do not pertain to the Council’s
competences, nor to those of the mayor or the president of the province, the lo-
cal authorities, the secretary and the executives. The Executive Board adopts
actions following collegial deliberation, and its members have no direct compe-
tences regarding external affairs.
6. HUMAN RESOURCES
The legal regime of local government personnel, as well as all the Civil
Service, changed radically with the reforms to privatize Public administration
staff, starting with Decree No. 29 of 1993, which advocated for contractual
sources such as collective and individual labour agreements. Current govern-
ment employees are normally regulated by the Civil Code.
During 1992-1993, the shift in government «privatisation» increased: col-
lective labour agreements and unions became increasingly important. Provi-
sions adopted in 2009, however, marked a turnaround, with limited contractual
autonomy on the part of the administrations and a reduction in private sources,
particularly, in regard to complementary agreements.
A series of cost-cutting measures were adopted: control of absenteeism, de-
termination of who will receive wage increases, and the reduction in consul-
tancy fees and staff. Transparency requirement were put in place, by publishing
data on wages, executive CVs, and staff absenteeism rate on public administra-
tion webs.2 Although collective bargaining establishes the rights and obliga-
tions of employment and the subjects involved in the labour relations, it should
not regulate topics such as the organization of the offices, or the professional
qualities demanded for executives (Decree No. 165 (2001), as amended). Other
subjects such as disciplinary actions, performance evaluation for subsidiary al-
lowances, mobility and economic increases should be outlined in the law in
order to establish the overall limitations for future bargaining.
6.1. The town secretary. The province secretary
In the Italian tradition, the position of town clerk or «secretary» (segretario

comunale, segretario provinciale) has always played a central role. Every mu-
2
In compliance with legislation (Law No. 15 (2009) and Decree No. 150 (2009)), which
addresses collective bargaining and other connecting matters.
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luciano vandelli
nicipality and every province is supposed to have its own «segretario». It is

classically linked to state administration (particularly the Ministry of the Inte-
rior) and to the Prefecture in matters of recruitment, career, destination, disci-
plinary actions. Nevertheless, at the same time, it is closely linked to the mayor
and aldermen.
The town secretary has his own and proper functions, which, in the big mu-
nicipalities, can include managing the summary proceeding and the implemen-
tation of provisions to control the legality of administrative actions, attending
and recording the sessions of the Council and of the Executive Board, and co-
ordinating the executive activity. The functions of Segretario Comunale in the
small municipalities are much broader. He is in charge of the overall local ad-
ministration, since he directly executes or controls all activities. The profile
of the province secretary (Segretario Provinciale) is pretty much similar.
Following this tradition, the reforms of the 90’s (Law No. 127, 1997) intro-
duced important changes in redefining the figure of the town secretary, which
has become more autonomous, by eliminating the direct dependence on the
Ministry of the Interior. Town secretaries were considered to being employees
of the Autonomous Agency for the Management of City and Provincial Clerks.
The mayor and the president of the province have the power to appoint the
secretary of the corresponding local body, based on evidence of adequate voca-
tional training. Candidates must pass an open competition, and successfully
complete a set of designated courses. The number of persons chosen for this
professional position corresponds to the number of available vacancies, plus an
additional percentage added, in order to enlarge the range of selection of candi-
dates by the mayors and by presidents of province.
In order to reduce public spending, the budget package for 2010 (approved
by Decree No. 78, 2010) established the abolition of the abovementioned au-
tonomous agency, and conferred the corresponding functions to the Interior
Ministry (more precisely, to the prefectures). The legislation does not establish
anything about the precise status of the «Segretario». Functionally, they answer
to the mayor, but new guidelines should be drawn up to clarify whether the cur-
rent situation is a pure and simple return to the more traditional centralism, and
to the consideration of the «Segretario» being an employee of the Ministry of
the Interior.
The town secretary essentially establishes cooperation among the several
organs of local government and provides legal and administrative assistance to
the different local bodies and organs, specifically in the view of ensuring the
conformity of local decisions and activities with the Law. The «Segretario» at-
tends the sessions of the Council and the Executive Board and is responsible for
recording the proceedings and decisions. He also supervises the functions of
the executives and coordinates activities, except in municipalities with less than
15,000 inhabitants, where a city manager handles these tasks.
352
6.2. The Director-General
With the introduction of the director-general (direttore generale), Italian

legislation (Law No.127, 1997) took an important step towards a much more
flexible local administrative organization, with an eye on results, and the ac-
ceptance of a «managerial» culture. Initially, the role of the director general
was associated with provinces and municipalities with less than 15,000 inhabit-
ants. In contrast, smaller municipalities were legitimized to nominate a director
general as long as they associated among themselves to meet jointly the popula-
tion requirement. In 2010, the government passed financial legislation to re-
duce public expenditure and the figure of director general was abolished for
municipalities with less than 100,000 inhabitants (Decree No.2, 2010).
The main duty of director-general is to implement the objectives established
by the governing bodies of the local authority, according to the mayor’s direc-
tives or those of the president of the province, and to supervise the management
of the authority in an efficient and effective manner. The director-general coor-
dinates and controls the actions of managers and, particularly, verifies the ade-
quacy of the framework for these activities by evaluating objectives in relation
to results. The director-general is given a fixed-term contract, according to the
criteria determined by regulation. The position requires a close and confidential
working relationship with the mayor or president of the province, so the duration
of the assignment does not exceed the mayor’s or president’s term of office.
6.3. The Managers (dirigenti)
Managerial roles in the public sector changed enormously during the reforms
in the 90’s, as they affirmed a line of distinction («separation», according to oth-
ers) between politics and administration. The managers take care of the local gov-
ernment offices and services. They are responsible for carrying out many actions
such as presiding at the board of examiners for competitions and contests or bid-
ding and competition procedures; and formalizing contracts, acts of financial man-
agement, administrative decisions regarding personnel, and authorizations, con-
cessions and other adjudications, including building authorizations and permits.
Actions attributed by law to managers cannot be altered by statute or by the
regulation of local authority, so neither a «Segretario» nor a city manager can
substitute, assume, revoke or reform acts issued by the managers. Likewise,
they are directly responsible for upholding the objectives of the authority, en-
suring correct administrative procedure and efficiency. Law No. 15 (2009), and
Decree No. 150 of the same year, strengthened the managerial powers entrusted
to managers. Namely, they gained more powers in managing human resources
and directing and organizing the offices’ tasks. In this context, the power of the
manager to evaluate the local authority personnel takes on a special value, be-
cause the manager will be the one to determine the eventual recognition of
economic incentives, and the need to exercise disciplinary power.
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Managers are also subjected to a new system of evaluation, which has reper-
cussions in the level of responsibility and has direct effects on retribution and
stability.
In Italy, the traditional balance between the political class and the public serv-
ants is under discussion at the local level, particularly after the processes of de-
centralization and the introduction of the direct election of the mayor. Specifi-
cally, managerial tasks are assigned by the mayor (or by the president of the
province), for a given period and purpose and according to a legal, standardized
procedure. The justification for the assignment must refer to criteria based on
professional competence. Delegated Law No.15 and Decree No. 150 (2009) are
examples of legislation that emphasizes the importance of assigning managerial
tasks, professional profiles, evaluation systems that link managerial performance
and results, and situations of incompatibility. An example of the latter consists in
the prohibition to grant responsibilities to someone who has performed tasks or
acted as a consultant or collaborator for a public entity, in the past two years.
On the other hand, the reforms of the 90’s introduced the possibility for lo-
cal authorities to use external professionals, not only from the public adminis-
tration, but also from the private sector. In this sense, a statute can contem-
plate the possibility of covering management positions in services and offices,
and managerial or high specialization titles, through a fixed-term contract, as
long as the person has the necessary qualifications for the job. In no case, how-
ever, may contracts be longer than the mayor’s term of office (or the term of the
president of the province).
It is important to point out that there are special offices that support the di-
rection and control of political bodies. The establishment of this type of or-
ganization can be provided under municipal or provincial regulation. The of-
fices are directly subordinate to the mayor or president of the province, the
Executive Board or the councillors, and are staffed by personnel from the gov-
erning body or by collaborators with fixed-term contracts.
Since the constitutional reform of 2001, local finance is characterized as a

concurrent competence. Within this framework, the regions have legislative
power in this area while the State keeps control of the fundamental principles.
According to the present Constitution (art. 119) «municipalities, provinces,
metropolitan towns and regions have financial autonomy over revenues and
expenditures», and possess «autonomous resources».
Specifically, those resources are identified as follows:
(1) taxes and revenues, established and applied by the territorial authorities
«in harmony with the Constitution and according to the principles of
coordination of public finance and tax system»;
354
(2) co-participation in revenues obtained from fiscal tributes pertaining to

the territory of each body;
(3) an equalisation fund, established by the State, for the territories with
low fiscal capacity per habitant.
On the whole, the resources obtained from these three sources «allow the
towns, provinces, metropolitan towns and regions to integrally fund the pub-
lic functions attributed to them». Therefore, the «fiscal federalism» pointed
out in the Constitution foresees that the flux of resources recognised at each
level of territorial autonomy has to be made up by own taxes, co-participa-
tions and shares of the equalisation fund and that they should be sufficient
and adequate to fund entirely the exercise of the functions attributed to each
level of government.
Additional resources and special assistance are established by the State in
favour of certain towns, provinces, metropolitan towns and regions to promote
economic development, cohesion and social solidarity; to remove economic
and social imbalance; and to facilitate effective exercise of citizens’ rights.
Art. 119 of the Constitution states that local authorities (and the regions) can
only have recourse to indebtedness for financing investment expenses. Law No.
42 of 5 May 2009 implements art.119 of the Constitution, on fiscal federalism,
and tries to ensure revenue and expenditure autonomy for municipalities, prov-
inces, metropolitan towns and regions. This will be accomplished by gradually
substituting the criterion applied historically to expenditure, with parameters
linked to cost effectiveness, authorities’ responsibility and effective and trans-
parent democratic control over elected officials. The law also establishes fun-
damental principles of coordination for the public finance and tax systems, and
an equalisation fund for the territories with lower fiscal capacity per habitant.
The law also provides that regions and local authorities, in conjunction with the
Conference of State, Regions and Local Authorities and the Parliament, work
with the Government (through mixed State-autonomies bodies with technical
expertise) to make fiscal federalism effective.
The new legislative arrangement stresses the following points:
(a) revenue and expenditure autonomy and bigger administrative, financial
and accounting responsibility on all levels of government;
(b) joint commitment of all administrations to achieve the objectives of na-
tional public finance in accordance with the limits set by the European
Union and international treaties (the so-called «stability pact»);
(c) assignment of autonomous resources to municipalities, provinces, met-
ropolitan towns and regions according to the principles of subsidiarity,
differentiation and adequacy;
(d) determination of costs and standard/basic needs as an indicator/bench-
mark to compare and evaluate public actions;
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(e) definition of service objectives and ultimate performance levels;

(f) identification of the principles of harmonization in application to the
public budget;
(g) efficient application of the norms and sanctions for actions that jeopard-
ize the fiscal balance.
If the Permanent Conference for the Coordination of the Public Finance
determines that one or more authorities have not met their objectives as as-
signed, the State will issue «a pact to achieve convergence» to the authorities
who show the greatest deviation from the initial costs per habitant. The pact
outlines the causes of the deviations, establishes corrective measures, and pro-
vides the necessary technical assistance, according to the principles of best
practice.
In this framework, regional law can also establish regional and local taxes,
as long as they don’t hit elements already taxed by the State. Regional laws may
also determine variable tax rates and establish co-participations for local au-
thorities involving taxes and regional co-participations.
The new financial architecture for the functions of municipalities, provinces
and metropolitan towns is based on a classification of expenditures according
to: a) basic functions of local authorities stipulated by State law; b) other func-
tions attributed in accordance with the principle of subsidiarity (art. 118 of the
Constitution); and c) income from special funds, European Union funds, na-
tional co-funding pursuant to art. 119 of the Constitution.
Municipal and provincial taxes are identified by State law, which defines
the passive subjects, tax base, reference rates, thus guaranteeing adequate flex-
ibility. Specifically, the municipalities’ basic functions are financed largely by
co-participations in State taxes and local council property taxes, while provin-
cial taxes are derived from road transport.
For particular purposes, as the creation of public works, one or more own
taxes can be provided. Regarding equalisation, regional budgets have two
sources (maintained by the State): one for municipalities and another for prov-
inces and metropolitan towns. The distribution of the equalisation fund between
single authorities, for basic functions, is determined according to factors such
as the financial and infrastructural needs (in mountain areas), demographics,
and social and production characteristics.
According to the Italian Civil Code, the properties of municipalities and

provinces are subject to a specific legal regime of public domain (demanio pub-
blico), so they are inalienable. These goods are subjected to a particular defence
of the administrative authority that relies on administrative and private law de-
356
vices to defend property and possession (art. 823). Local authorities can use
both administrative and ordinary channels to defend the ownership and posses-
sion of these properties (art. 823, Civil Code). Examples of this goods are, inter
alia: roads, aerodromes, waterworks, property of significant historical, archae-
ological and artistic interest, museum collections, art galleries, archives and li-
braries (art.822, Civil Code).
Municipal and provincial goods other than those mentioned in these catego-
ries are considered to be «regular» patrimony of the municipalities and prov-
inces (patrimonio delle province e dei comuni). As a «sub-category» of this
type of local authority property, the Italian Civil Code regulate the «non dispos-
able patrimony» (patrimonio indisponibile) : local buildings (such as the city
hall), seats of local government offices, as well as their furniture, etc. (art.826).
Special attention must be given to «patrimonial federalism». According to
art. 119 of the Constitution (2001), municipalities, provinces, metropolitan
towns and Regions, «have their own patrimony, attributed according to general
principles established by State law». At first glance, it would appear that the
Constitution establishes the right to patrimony only for territorial local authori-
ties, but most experts agree that it is also applicable to State property. In this
sense, recent legislation regulating «patrimonial federalism» (Law No. 42,
2009 and Decree No. 5 of 11 June 2010) allows the transfer of State goods to
regions and local authorities, as long as the latter have the means to exercise
their functions. Furthermore, art. 19 of Law No. 42 requires that the Govern-
ment attribute to local authorities, free of charge, several types of goods, in-
cluding public waterworks, airports of significant local interest, mines and
other properties, by agreement subscribed by the State-Regions-Local Authori-
ties Joint Conference. This agreement is based on several criteria such as terri-
toriality, subsidiarity, simplification, financial capacity, conformity with com-
petences and functions, and environmental improvement.
According to the principle of subsidiarity, if a good is not attributed to an
authority of a certain level of government, the State must assign it to another
authority of a different level that has requested it. The authority that will re-
ceive the good must inform its inhabitants and organize a referendum to guar-
antee that the good will be used in a way that maximizes benefit for the entire
population. Furthermore, for territoriality and subsidiarity criteria, transfers
of this type follow a specific order, first to municipalities, and exceptionally
to provinces, metropolitan towns or regions. Considering the value or typol-
ogy of the good, these authorities are best qualified to satisfy the require-
ments of defence, management and optimization that must exist in transfers
of this nature.
The transferred good becomes part of the body’s available patrimony and
can be sold if necessary. This is a controversial subject, since the sale of patri-
mony, particularly during period of financial difficulty, could result in wide-
spread divestment instead optimization of public goods.
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General principles
9.1.
Prior to the constitutional reform of 2001, control of municipalities’ and prov-

inces’ administrative decisions was performed by regional authorities, who had
the power to annul illegal decisions. On the other hand, in the case of objections
related to the opportunity or expediency of the measure adopted by the local au-
thority, the regional body could only send the decision back to the local body for
reconsideration, and could not prevent the measure to become effective, if it was
confirmed by the local body. An important constitutional reform took place in
2001, since this modus operandi was considered ineffective and was eliminated. It
was replaced by a new regime for regions and local authorities (art. 120, par. 2).
The new legal scheme allows the Government to seize jurisdiction in certain cases
of measures adopted by regions, metropolitan towns, provinces and municipalities
(the power of «substitution»). This power is allowed in three instances:
(a) in case of non compliance with legal rules, international treaties and EU
legislation;
(b) in case of serious threats to public safety;
(c) if this is necessary to defend the legal or economic unity of the country,
and particularly when it is necessary to transcend the limits of the ter-
ritorial borders of local governments to protect civil and social rights.
The law also defines the procedure ensuring that the powers of inter-admin-
istrative substitution will be exercised in observance of the principles of sub-
sidiarity and loyal collaboration. To institute this constitutional provision, Act
No. 131, of 2003 (art.8) establishes the procedure for implementing substitutive
interposition. The basic steps are:
(1) notification stage: the president of the Council of ministers gives the appro-
priate body a reasonable period in which to adopt the necessary measures;
(2) participation phase: consisting of a hearing with the given authority;
(3) decision phase: at the end of the designated term in which the Council
of Ministers or a special commissioner designated by the Council adopts
the legislative and functional measures for the action.
According to the interpretation of the Constitutional Court (Ruling No.43,
2004) the Constitution grants the State this power of inter-administrative sub-
stitution as an extraordinary device, that can only be used in cases of «serious
institutional emergencies that affect the basic interests of the Republic». This
power, therefore, doesn’t exhaust the hypothesis of substitutive intervention
which can be outlined by sectoral legislation, either state or regional, according
to the respective competences.
In fact, and according to the Constitutional Court, an «indissoluble bound-
ary» exists between the delegation of a function to autonomous authorities and
358
the inherent capacity to implement «substitution» powers, addressed to ensur-

ing and control the proper exercise of the delegated function, and that it does
not jeopardise the unity and coherence of the legal system
According to the constitutional requirements for protection of local and pro-
vincial autonomy, substitutive powers must be considered as an exception, and
are admissible only if certain conditions and limits occur such as:
a) the use of substitution powers must respect the substantial and proce-
dural premises established by the law (Ruling 338, 1989);
b) the power of substitution must be performed by a governmental body of
the region, or on the basis of a decision of the said region (Rulings 460,
1989; 342, 1994, and 313 (2003). It cannot be implemented by an om-
budsman (Rulings 112 and 173, 2004) or by a regional Forestry Corps
(Ruling 313, 2003);
c) the law must establish proper procedural guarantees for the affected lo-
cal authority, in conformity with the principles of loyal collaboration, so
that the substituted body can be in a position to avoid the substitution,
and has the opportunity participate in the discussions during the proce-
dure (Rulings 153, 1986 and 416, 1995; ord. 53, 2003).
9.2. The Court of Auditors
The Court of Auditors is a body established to perform an independent con-

trol (art. 100, Constitution) consisting of regional departments whose duty is to
verify public accounting. The Court verifies the balances of municipalities,
provinces, metropolitan towns and regions, in relation to the internal stability
pact and to the limits derived from Italy’s membership to the European Union.
At a regional level, the Court’s departments of control verify the following
budgetary aspects in adherence to the principles of collaborative management
control: a) achievement of the objectives imposed by the State or regional laws
according to their respective competences; b) correct financial management of
local authorities; and c) mechanisms of internal controls. The departments of
control report «exclusively to the councils of the controlled authorities» and
inform them of the results of the verifications. This system provides the coun-
cils with the proper instruments and elements to exercise its own control of
executive action and to better substantiate their own decisions on the basis of
documentary financial and administrative information.
9.3. Internal controls
In accordance with the principles defined by the State, each municipality

and provincial statute defines the internal controls that will «guarantee that the
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authority will carry out administrative action in an efficient, effective and eco-
nomical manner».
In the framework of the general move in favour of efficiency and transpar-
ency of governmental action that took place in 2009 (Law No. 15 and Decree
No. 150), every local authority, singularly or in an associated form, must cur-
rently seek an independent body to check its performance. Specifically, this
body monitors the performance of the evaluation system, its transparency and
the integrity of internal controls. It also reports the most critical findings to the
governmental bodies of the local authority, the Court of Auditors and the na-
tional committee established for the evaluation, transparency and integrity of
public administrations.
This independent body is composed of one or three members, depending on
the size of the authority. These members are top professionals with proven ex-
perience, who meet the requirement of strict impartiality that will guarantee the
independence of their work
9.4. The Ombudsman (Difensore Civico)
Although there is no ombudsman at the national level, the figure was intro-
duced in 1990 for municipalities and provinces as an eventual option. The om-
budsman «guarantees the impartiality and the proper workings town and pro-
vincial public administration», and reveals, «on his own initiative, the abuses,
defaults and delays in the administration’s interaction with its citizens». T h e
by-laws of several municipalities or provinces describe the election, powers
and the resources of the ombudsman, as well as his relationship with municipal
and provincial councils. Local provisions commonly tend to regulate the local
Ombudsman following the model of independent authorities: specific provi-
sions on nomination, independence from the local political rulers, non re-eleg-
ibility, etc.
The duties and powers of the ombudsman depend on the provisions of local
regulations. Generally, any individual or association of individuals can file a
complaint against a local body for its inactivity or misconduct. The ombuds-
man has the right of access to the file, to form an inquiry, etc. Normally, the
results of the inquiry are expressed in the form of a recommendation directed to
the responsible political body or executive, so the authority is not obligated to
adopt or desist any actions.
Apart from this typical role, the Difensore Civico can also intervene as a
means of control, if requested by a quota of councillors(1/4 or 1/5, according to
the size of the authority). In these cases, if the ombudsman considers a delib-
eration unlawful, he can urge the re-consideration of it. This form of control
was instituted following the constitutional reform of 2001.
360
Recently, the figure of the ombudsman has undergone a full scale revamp-
ing with the prospect of simplifying and reducing costs. There was a move to
eliminate this figure across the board in the financial law of 2010, but that was
quickly corrected in January 2010: Decree-Law No. 2, 20103 establishes that
the elimination of the difensore civico will only affect the municipal level.
Therefore, at present the ombudsman exists only in the provinces («territorial
ombudsman»), and his competencies encompass provincial and town adminis-
tration, provided the municipalities stipulate this in special agreements with the
province.
The participation of Italian sub-state authorities in the decisional processes

of the European Union concerns, first of all, the Regions. In this sense, a key
provision in the Constitution (art.117) states that the regions and some autono-
mous provinces (like Bolzano) participate in the decision-making of the Union,
and do provide for the execution of the acts of the European Union.
The procedures governing this participation are established by State law,
along with the provisions for the involvement of local authorities when matters
of particular importance to their competencies are addressed. In these cases, a
mixed body representing the Government and the local authorities for affairs of
common interest, and the Conference of State-town-local authorities, which
includes representatives from municipalities and provinces, can voice their
opinion on EU projects (Law No. 11, 2005, art. 6). Likewise, local authorities
are often important actors in executing projects, supported by structural funds
from the European Union.
11.1. Landmark court rulings
(A) Constitutional Court rulings
Ruling 28 March 1969, No.52, regarding the autonomy of local authorities;

Ruling 28 November 1972, No.164, on the jurisdiction of the State regarding
control of the bodies of local authorities;
Ruling 27 April 1988, No.499, regarding the guarantees of the municipal au-
tonomy;
3
This rule establishes urgent measrures concerning local and regional bodies: «Interventi
urgenti concernenti enti locali e regioni».
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Ruling 3 November 1988, No. 1010, regarding the guarantees of municipal

autonomy;
Ruling 27 July 1989, No. 453, regarding the referendum on the territorial
changes of municipalities;
Ruling 31 March 1994, No.116, regarding conferences between the State and
autonomies;
Ruling 13 February 2003, No.47, regarding the procedure the procedure for
changes in the territory of municipalities;
Ruling 24 July No. 274 2003, regarding local authorities as constitutive ele-
ments of the Republic;
Ruling 27 January 2004, No.43, regarding substitutive controls of the acts of
the local authorities;
Ruling 10 November 2004, No.334, regarding the referendum on the splitting
of municipalities to and from another region;
Ruling 2 December 2004, No. 372, regarding the functions given to local au-
thorities;
Ruling 20 June 2005, No. 244, regarding the legislative competence of associa-
tive forms between municipalities;
Ruling 6 July 2006, No.267, regarding the control of the Court of Auditors;
Ruling 1 December 2006, No.396, regarding State competence in dissolving
the councils;
Ruling 1 August 2008, No. 326, regarding public shareholding companies;
Ruling 28 January 2010, No.27, regarding legislative competence in the asso-
ciative forms between municipalities;
Ruling 2010, No.214, regarding the procedure for territorial municipal changes;
(B) Case law of the Council of State
Section I, advice 30 September 1993, No. 984, regarding the form of govern-
ment of the local authorities;
Section V, 8 August 2003, No. 4598, regarding the suppression of the controls
of the acts of local authorities;
Section V, 21 November 2003, 7632, regarding the distinction between direc-
tion and management;
Section V, 25 September 2006, No. 5625, regarding the managers of local au-
thorities;
362
Section V, 27 August 2009, No. 4378, regarding the revocation of members of

the Executive Board;
Section VI, 9 October 2007, No.5309, regarding the limits of mayors’ term of
office;
Section V, 27 August 2009, No. 4378, regarding the revocation of the members
of the executive;
Section V, 12 October 2009, No. 6253, regarding the procedure for the revoca-
tion of the members of the Executive Board;
Section V, 19 October 2009, 6394, regarding the ombudsman;
Section V, 17 February 2010, No.912, regarding of suppression of upland au-
thorities;
Section V, 29 April 2010, No. 2465, regarding the mayors’ ordinances;
Section VI, 1 June 2010, No.3462, regarding the dissolution of the city council;
Section V, 10 September 2010, No. 6529, regarding local public services;
Section V, 17 September 2010, No. 6963, regarding the rights the procedure for
changes in the territory of municipalities.
(A) Handbooks
Gambino (a cura di): Diritto regionale e degli enti locali, Milano, 2009;
Italia, Maggiora, Romano: L’ordinamento comunale: strutture, competenze,
attività, Milano, 2005;
Pinto: Diritto degli enti locali, vol. I, parte generale, 2 ed., 2005;
Staderini: Il diritto degli enti locali, Padova, 2006;
Vandelli: Il sistema delle autonomie locali, Bologna, 4 ed., 2011
Vesperini: Gli enti locali, Roma-Bari, 2004;
Virga: L’amministrazione locale, Milano, 2a ed., 2003.
(B) Guides
ANCI (Associazione ANCI-Associazione Nazionale dei Comuni Italiani) :

Guida normativa per l’amministrazione locale, IV vol., a cura di Narducci,
Roma, 2010.
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luciano vandelli
(C) Periodicals
Istituzioni del Federalismo: Rivista di studi giuridici e politici, Rimini;

Le Regioni. Bimestrale di analisi giuridica e istituzionale, Bologna;
Nuove autonomie. Rivista trimestrale di diritto pubblico, Palermo.
(A) Government websites, with information about local authorities
Ministry of the Interior: www.interno.it;

Ministry of Finance and Economy: www.finanze.it;
Ministry of Public Administration and Innovation: www.innovazionepa.gov.it.
(B) Associations of local authorities
ANCI (National Association of Italian Municipalities): www.anci.it;

Unione Province Italiane (UPI) Union of the Italian Provinces: www.upi.it;
Lega delle Autonomie League of the autonomies: www.legautonomie.it.
(C) Conferences between the State and local/regional authorities
Conference State-Regions-local autonomies: www.statoregioni.it;

Conference State-cities-local autonomies: www.conferenzastatocitta.it.
(D) Research centres and on-line magazines
ASTRID (Foundation for the Analysis, the Studies and the Research on the
Reform of the Democratic Institutions): www.astrid.it;
Federalismi: www.federalismi.it;
Institute of Studies on regional federal systems and authonomies of the Na-
tional Research Council: www.issirfa.cnr.it.
364
Chapter 15:
LOCAL GOVERNMENT IN LATVIA
Inga VILKA
The Republic of Latvia was founded as an independent country on 18 No-

vember 1918. Independence was interrupted by the Soviet period and renewed
in 1991. Latvia has a rather long history of development of local government.
The legal acts on local self-governments that were adopted immediately after
the formation of the new country in 1918 were quite democratic and included
female suffrage. At the local level, voters elected a council, and the councilors
elected the chairperson of the council from among themselves. In May 1934,
when the autocratic rule was established, the councils of cities were dissolved.
Rural municipal councils were not abolished, but their functions were reduced.
The tradition of more or less democratic local governments in Latvia between
the two World Wars was interrupted by the Soviet occupation. Though citizens
formally elected local councils, in practice, local government in the true sense
of the term did not exist during this period.
After Latvia’s renewed independence, the first laws on local governments
were based on legal rules of the First Republic, but in 1993 the national govern-
ment approved a key strategic policy document called the ‘Concept of Local
Government Reform of the Republic of Latvia’, and with its implementation
the new system of local governments was developed. The main features of this
reform of local government were:
– a new Act on local councils elections
– a new Act on local government, common for both rural and urban mu-
nicipalities and regional (district) governments
– administrative territorial reform
– improvement of the local budget system
– organisation of the system of negotiations between the central and local
governments.
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Until July 2009, a two-tiered system of local government existed in Latvia,

and the administrative territorial division was a holdover from the Soviet period.
Prior to July 2009 the total number of local governments in Latvia was 548, in-
cluding 26 district governments (rajons) and 522 local governments [seven «re-
publican» cities, 50 towns, 41 novads (municipalities) and 424 pagasts (rural
municipalities)]. The second tier of administrative territorial division embraced
33 administrative territories, those of districts and republican cities. The latter
were included simultaneously in both tiers of administrative territorial division.
In 1998, the Administrative Territorial Reform Act was passed, and from
then until 2009 several cases of voluntary amalgamation of local authorities
occurred. The reform was finished in July 2009 with a new administrative ter-
ritorial division that was accepted by the Parliament. The number of local au-
thorities was significantly reduced (to 118), and the district level as the second
tier was abolished entirely. The issue of administrative territorial division at the
regional level after the reform in 2009 is still on the agenda of the government
and the Parliament: as yet, there has been no agreement among the political
parties on the questions of whether Latvia needs second-tier governments at all
and what their numbers and competences might be.
A single-tiered system of local government has existed in Latvia since the im-
plementation of the administrative territorial reform in July 2009. Immediately
following the reform, there were 118 local government units, but after the splitting
process of one municipality in 2010 and elections in the two new territories, as of
2011 there are 119 local authorities in the country: nine «republican» cities (repub-
likas pilsēta) and 110 municipalities (novads). Pursuant to the Law, a «republican»
city is characterized by the following: it has developed commercial activities,
transport and community facilities, and a social infrastructure; it has a significant
complex of cultural institutions; and it has at least 25,000 permanent residents.
The new division of local authorities into republican cities and novads does
not ensure the division of territories into urban and rural territories: in many
novads, towns with an urban living environment and infrastructure are included
as territorial units and populated areas. Thus, part of the novads could be clas-
sified as mixed urban-rural territories. The whole territory of a republican city
may be characterized as a populated area, while populated areas in the novads
territories are towns and villages. After the reform, there are still significant
disparities in size among municipalities. In terms of population, the largest lo-
cal government is the capital city, Riga (706,413), with one-third of the entire
population of Latvia. The smallest municipality, Baltinavas novads, has 1,364
residents. The total population in Latvia in early 2010 was 2,248,374.1
1
Data from the Central Statistical Bureau of Latvia.
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local government in latvia
Table 1
Number of local authorities by population (source: Central Statistical Bureau)
Number of residents in local

Republican cities Novads Total
government
Up to 2,000 4 4
2,000-5,000 34 34
5,000-10,000 38 38
10,000-20,000 17 17
20,000-30,000 2 13 15
30,000-50,000 2 4 6
50,000-100,000 3 3
100,000-150,000 1 1
More than 700,000 1 1
Total in Latvia 9 119
To ensure the planning of regional development, coordination and coopera-

tion among local authorities, five «planning regions» have been established in
Latvia: those of Riga, Vidzeme, Kurzeme, Zemgale and Latgale. Development
of the planning regions had already started in the second half of the 1990’s as
an initiative of local governments, but the central government approved them
only in 2003. Planning regions are not self-governments, and the question as to
their future is on the agenda of the government and the Parliament.
3.1. The European Charter and the national constitution
The presentation of the current legal scheme of local government and local
autonomy in Latvia must begin with a reference to the European Charter of Lo-
cal Self-Government (ECLSG). On 22 February 1996, the Parliament of Latvia
(Saeima) ratified 26 out of 30 paragraphs of the ECLSG. On 22 April 1999, the
Saeima accepted three more paragraphs. Latvia still has not accepted Art. 8.9 of
the Charter (‘For the purpose of borrowing for capital investment, local au-
thorities shall have access to the national capital market within the limits of the
law.’). Although the Charter was ratified by Latvia only in 1996, its principles
have been incorporated into domestic legislation since 1994. As a matter of
fact, the strategic policy document called the «Local Government Reform Con-
ception», accepted by the government in 1993, was based on principles of the
Charter.
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Formally speaking, upon its ratification the Charter should have been auto-
matically transposed into Latvian domestic law. However, as noted above, some
principles (articles) of the ECLSG had already been incorporated into legislation
before the legal ratification; some principles were incorporated later—mostly
within the development process of the local government system—; and some
principles have still not been incorporated into the legislation. What is more,
some domestic legislative norms even contradict the Charter or do not follow the
ECLSG’s principles. There are cases in which local authorities the Constitu-
tional Court have used the Charter as a direct legal source. In this sense, the
Association of Local and Regional Governments of Latvia is the main actor in
the law-making process that monitors and controls compliance of the draft laws
with the Charter. However, it is noticeable that the Association does this if it is
beneficial for local governments; otherwise, the Charter is not mentioned.
In 2011, the ratification of Art. 8.9 of the Charter was included on the agen-
da of the current government of Latvia (in power since November 2010), as it
is mentioned in the Declaration of the Government. However, the signature and
ratification of the Additional Protocol of the Charter is not on the government’s
agenda; moreover, local authorities have not expressed any interest in it. One of
the Charter’s principles which has not been implemented is the one enshrined
in its Art. 2, according to which local self-government should be recognised in
the national constitution. In Latvia, the principles of local self-government are
still not recognized in the Constitution (Satversme). Local government is cer-
tainly mentioned in Arts. 25, 101 and 104 of the Constitution. Art. 101 (under
the section of Human Rights) states that local governments are to be elected by
Latvian citizens who enjoy full rights of citizenship and by citizens of the E.U.
who reside in Latvia permanently. It is not enough to conclude that local self -
government principles are recognized in the Constitution.
3.2. Domestic legislation
The main piece of Latvian legislation that contains the principles for local
government activities is the «Local Authorities Act», adopted on 19 May 1994.
This statute sets out the general provisions and economic basis for the activities
of the local bodies of Latvia, such as: (a) their competences; (b) the rights and
responsibilities of local government councils and their institutions, as well as
those of the chairpersons of the city or municipal councils; (c) the relationship
of local authorities with the central government; and (d) the general provisions
for the relationships among local governments. The Local Authorities Act in-
cludes the following definition of local government: «A territorial local au-
thority is a local administration which, through bodies of representatives elect-
ed by citizens—city or novads council—and authorities and institutions
established by them, ensures the performance of the functions prescribed by
law, as well as the performance of tasks assigned by government according to
368
the procedures specified by law, and local government voluntary initiatives,

observing the interests of the State and of the residents of the said administra-
tive territory». Among other statutes that form the legal framework of local
governments in Latvia, are:
– The Republican City Council and Municipality Council Elections Act (1994).
– The Status of Councillors in Republican City Councils and Municipality
Councils Act.
– The Local Governments Budgets Act (1995).
– The Local Government Finance Equalization Act (1998).

AUTHORITIES
4.1. Local authorities’ responsibilities
Local authorities in Latvia are responsible for a very wide range of public
duties, as per the Local Authotities Act, which stipulates for them, among oth-
ers, the following autonomous functions:
– To organise the provision of utilities (water supply and sewerage; supply
of heat; management of municipal waste; collection, conduction and puri-
fication of waste water);
– To maintain public services and facilities and the upkeep of their adminis-
trative territory (buildings, reconstruction and maintenance of streets,
roads and public squares; lighting of streets, public squares and other ar-
eas designated for public use; development and maintenance of parks,
public squares and green zones; control of collection and removal of
waste; flood control measures; establishment and maintenance of ceme-
teries and dead animal disposal sites);
– To provide for the education of residents (ensuring the right of residents to
primary and general secondary education; ensuring children of pre-school
and school age with places in training and educational institutions;
– To maintain culture and facilitate the preservation of traditional cultural
values and the development of creative folk activity;
– To ensure access to health care and promote sports and a healthy lifestyle;
– To ensure social care for residents (social assistance to poor families and
socially vulnerable persons: places for senior citizens in residences and for
orphans and children without parental care, etc.);
– To provide assistance to residents in the resolution of housing issues;
– To facilitate economic activity within the relevant administrative territory
and to take measures to reduce unemployment;
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– To issue permits and licences for commercial activity, as provided for by law;
– To participate in ensuring public order and combat drunkenness and im-
morality;
– To determine land utilisation and procedures for its development, in ac-
cordance with the territorial planning of the relevant local government;
– To ensure the lawfulness of construction within the relevant administra-
tive territory;
– To maintain a civil registry;
– To gather and report information necessary for State statistics;
– To carry out the necessary measures for the election of city or county
councils;
– To participate in ensuring civil defence measures;
– To organise public transport services;
– To protect the rights of minors.2
Apart from these, there are autonomous functions stipulated by other laws.
Local governments are also responsible for a number of temporary functions
and tasks, as laid down by laws and regulations.
4.2. Voluntary activities
Apart from mandatory tasks, local government can take voluntary initia-
tives. In this sense, the Local Authorities Act states that, «in the interests of
their residents, local authorities may voluntarily carry out initiatives with re-
spect to any matter, if this is not within the competence of the Saeima (the
Parliament), the Cabinet of Ministers (the government), the ministries, other
state administrative institutions, the courts or other local governments, and as
long as such activities are not prohibited by the Law».3 Examples of local gov-
ernments’ voluntary functions include municipal police (if the local authority
chooses to provide this service, the law prescribes certain restrictions), adult
education, fire protection (usually a State function) and lodgings and retail
services (some cities and novads have hotels, campgrounds, markets and res-
taurants).
4.3. The capital city
The Local Authorities Act contains a section on the special functions of the
capital city, Riga. In addition to the functions specified in the Law, the capital
2
Local Governments Act, Art. 15.
3
Local Authorities Act, art. 12.
370
city has as its permanent responsibility the following State and local govern-
ment functions:
– providing support to central State institutions, foreign diplomatic missions
and consular institutions, as well as ensuring the conditions necessary for
the activities of international organisations;
– ensuring the conditions for the reception of foreign delegations and for the
maintenance of national symbols;
– participating in the maintenance and development of historical objects of
State and international importance, of cultural and historical objects of
national importance and of the cultural infrastructure; and
– taking part in the maintenance and development of communications sys-
tems and transport infrastructure of State importance.4
4.4. Forms of delivery of local services
The local authority may decide to entrust the tasks arising from each au-
tonomous administrative function to a private individual or to another public
person. By mutual agreement, local bodies may transfer among themselves the
performance of separate functions within their competence. The decision to
perform the transfer of administrative functions must be taken by the city or
municipal council of the local authority. Based on such decision, a written con-
tract specifying the sources of financing for the performance of the functions is
signed. Although the law determines that State administrative institutions do
not have the right to assign to local authorities the performance of such func-
tions and tasks for which financing is not provided, in practise there are cases
in which new tasks or new prescriptions on existing ones are assigned without
additional financing. In carrying out their functions, and in accordance with
legal procedures, local authorities have the right to:
– establish subordinate local bodies, associations or foundations and capital
companies, as well as invest their own resources in capital companies;
– acquire and alienate movable and non-movable property, privatise facili-
ties owned by local governments and conclude transactions, and perform
other activities of a private law nature;
– introduce local fees and determine their rates and the extent of their ap-
plication; and
– take actions to court and present complaints before administrative institu-
tions.5
– issue binding regulations to ensure the performance of their functions.
Local Authorities Act, art. 17.2.

4
Local Authorities Act, art. 14, part 1.

5
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5.1. The local council
The representative body of the local authority is the council (dome). The
number of council members and the process of local elections are regulated by
the City Council and Municipal Council Elections Act (passed in 1994, with
later amendments). The rights and responsibilities of the members of the city or
municipal councils are specified by the Local Authorities Act and the Status of
Councillors in Republican City Councils and Municipal Councils Act. Local
government councils are elected for four years by direct universal suffrage,
under proportional representation by the list system. The most recent local elec-
tions in Latvia, the first held in reformed territories, took place on 6 June 2009.
In those elections 1,765 councillors were elected in 118 local authorities.
The number of local councillors is proportional to the population they rep-
resent. Until 2009, the number ranged from seven to 60, but since the elections
held that year, the number of councillors in the novads ranges from 13 to 19,
whereas in the republican cities it ranges from 13 to 60.
Table 2
Number of councillors in local bodies according to population
Prior to local elections of 2009 In local elections of 2009
Number of Number of Number of Number of councillors

residents councillors residents Republican cities Novads
up to 2,000 7
2,001-5,000 9 up to 5,000 13
5,001-20,000 11 5,001-20,000 15
20,001-50,000 13 20,001-50,000 13 17
50,001 and more 15 50,001 and more 15 19
Riga 60 Riga 60
Any Latvian citizen age 18 or older has the right to vote in council elections,
barring any other legal limitations. Citizens of other EU member states who are
permanent residents in Latvia and who have registered to vote may also par-
ticipate in local elections. Any person has the right to vote by choice either in
the administrative territory of the local authority where he has declared his
place of residence or in a location where he owns property. With the exception
of persons to whom limitations apply, the right to be a council candidate be-
longs to Latvian or EU citizens who have reached the age of 18 on the date of
372
the election and are registered voters and who reside or own property in the
administrative territory of the respective municipality or who have been perma-
nently employed in the territory of the municipality for at least the four months
immediately prior to the submission date of the list of candidates.
Only registered political parties or their registered associations or two or
more registered parties which have not united in a formal association can submit
lists of candidates in municipalities with more than 5,000 residents. In localities
with fewer than 5,000 residents, voters’ unions (local lists) are also entitled to
submit lists of candidates. In 2009, a 5% threshold was established for all coun-
cil elections. The voter turnout in the 2009 local elections was 53.8%, slightly
higher than in the previous local elections (52.9%). In local elections, voter par-
ticipation is usually lower than in the elections for Parliament (Saeima).
5.2. Competences of the council
Council meetings must be held at least once a month and must be open.
Since the reform of 2010, minutes and decisions of the local council meetings
must be published on the local government’s web page. City or municipal
councils may examine any issue that is under the supervision of the relevant
local government. Among the powers of the council stand the following ones:
– To approve local government by-laws, the local budget and its amend-
ments;
– To approve the local government territorial development programme and
territorial plan;
– To approve the local government territorial divisions and their administra-
tive structure;
– To establish, reorganise and dissolve local government institutions, local
government capital companies, associations and foundations, and approve
the statutes of local government institutions;
– To appoint and remove the heads of local government institutions and
other officials;
– To elect the chairperson of the city or county council, the vice-chairper-
son, members of standing committees and members of the audit commis-
sion, as well as discharge them from office;
– To determine the charges for local services;
– To adopt binding regulations with respect to the implementation of local
government fees;
– To take decisions with respect to the alienation, pledging or privatisation
of local government immovable property, as well as the acquisition of
such property;
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– To suspend and revoke decisions of heads of local government institu-

tions; and
– To revoke the orders of the chairperson of the city or county council.
Councils must form at least two standing committees: the finance commit-
tee and the committee of educational, social and cultural affairs. Councils usu-
ally have three or four committees, for instance, a finance committee, a com-
mittee on educational, cultural, youth and sports issues and a committee on
social and health care affairs and economic development. As of July 2009, the
city of Riga has eight committees for the following areas: financial and admin-
istrative affairs; social affairs; urban development; housing and the environ-
ment; urban property; education, culture and sports; transportation and com-
munications; and safety, public order and prevention of corruption. Meetings of
committees are open to the public.
The limitations and duties of council chairpersons, vice-chairpersons, coun-
cillors and executive directors, with respect to commercial income-providing
activities, compatibility of offices and performance of duties, as well as other
relevant limitations and responsibilities, are prescribed by the Prevention of
Conflict of Interest in Activities of Public Officials Act.
5.3. The chairperson of the council
The chairperson of the council is elected by secret ballot from among the
council members. Any councillor has the right to nominate a candidate for the
position of chairperson of the city or municipal council. The chairperson of a
city or county council is elected if the candidate has received more than half of
the votes of the councillors. Formally speaking, the chairperson is a leader with
decision-making power; in fact, the chairperson holds executive power, as well.
After the election of the chairperson of a city or county council, a vice-chairper-
son is elected from among the councillors. A chairperson of a city or county
council may have several deputies.
The law stipulates that the chairperson of a city or county has, among other,
the powers to:
– manage the work of the city or county council and coordinate the examina-
tion of issues in committees;
– represent the local government in relations with the State and with other
local authorities;
– represent the city or county council in court without special authorisation;
– sign contracts and other legal documents, in representation of the city or
county council;
– issue binding instructions to local government administrative employees;
374
– be responsible for the execution of court rulings in which one of the parties
is the city or county council; and
– perform other duties as determined by laws, Cabinet decisions, local by-
laws and decisions of the city or county council.6
5.4. The Executive Director and the local administration
On the recommendation of its chairperson, the city council appoints an Ex-

ecutive Director, who is responsible for the work of the local government insti-
tutions and capital companies. The executive director may not be a councillor
of the city or county council except in local governments with fewer than 5,000
residents, in which the duties of an executive director may be performed by the
city or county council chairperson. The executive director ensures continuity in
the work of local government institutions and undertakings, in case of a change
of city or county council. According to the law, the local government executive
director will have, among others, the power to:
– organise the implementation of binding regulations and other regulatory
enactments issued by the city or county council;
– issue orders to the heads of local government institutions;
– prepare recommendations to the city or county council regarding the revo-
cation of unlawful or ineffective decisions of the relevant local govern-
ment institutions;
– act with local property and financial resources, and conclude economic
transactions with legal entities and natural persons, in accordance with the
procedures and within the scope prescribed by the city or county council;
– organise the formulation of the draft territorial development plan and the
draft budget, as well as the preparation of the economic and annual public
reports; and
– perform other duties as specified in the by-laws of the relevant local gov-
ernment and by the decisions of the city or county council.7
The implementation of local government functions and council decisions is
ensured by the local administration, institutions and companies. The Local Au-
thorities Act determines general principles of the political and administrative
structure of local authorities. The by-laws of each local authority prescribe its
particular institutional structure and administrative procedures. Internal decen-
tralisation is at the discretion of each local authority. Local authorities may
delegate functions part of their functions to other local authorities. They may
also form inter-municipal entities, such as special establishments, agencies,
companies, associations, and foundations.

6

7
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6. HUMAN RESOURCES
Local government staff is not comprised of civil servants. All staff members
(except the chairperson and deputies) have the status of employees. Local au-
thorities recruit and manage their own human resources, in an autonomous
way. They can draw up staff regulations for employees, providing these regula-
tions do not conflict with established labour law. There are special education
requirements for some local staff positions, e.g., for members of orphans’
courts, teachers, construction supervisors, etc.
For many years, the salaries of the chairperson and deputies, as well as those
of local staff members, were determined by the council. During the economic
crises, stronger financial control in the public sector was introduced, and since
2010 the Remuneration Law for State and Local Government Officials and
Employees has been in force. According to this statute, the government deter-
mines the ceilings for public staff salaries (i.e., State and local government)
within different categories. In addition, the lists of salaries (without names)
must be published on the local authority’s web page.
7.1. The local budget
In Latvia, a local government budget consists of two different parts: the

basic budget and the special budget. Each of these budgets, as defined by the
Budget and Finance Management Act, consists of revenue, expenditures and
financing. The «basic budget» is that part which is comprised of general and
earmarked grants, revenues from services and other own revenue, transfers,
foreign financial aid and expenditures that are planned to be covered by reve-
nues, as well as State budget loans and repayment of those loans. On the other
hand, «special budget» revenues are formed from the State roads fund, natural
resource tax revenues, revenues from privatization and port fees, as well as
revenues from other sources marked for special purposes and related expendi-
tures, loans and loan repayments. This division of the local budgets in these two
distinct parts dates historically from the beginning of the 1990’s, but now that
earmarked grants have also been included in the basic budget for a rather long
time, there is no reason for such a division into a basic and a special budget.
This division does not ensure sufficient information about the financial situa-
tion and capacity of each local authority; instead, it makes local budgets more
complicated and less transparent. This structure presents obstacles for midd-
term planning and objective comparison among the local budgets.
Only the local government council has the right to approve the local govern-
ment’s budget or amendments to it. Local government budgets are public docu-
ments. Local governments agreeing upon legally approved classifications must
376
prepare and submit monthly and annual budget reports to the Treasury. The
public has access to local government budget reports (data) on the Treasury
Web page (http://www.kase.gov.lv).
7.2. Local revenue
Until 2008, local budget revenues increased from year to year; the portion of
local budgets in the General Government Consolidated Budget increased sig-
nificantly, as well. Since 2009, local budget revenues have decreased. In 2010,
total local government budget revenues amounted to 1,320.3 million lats (LVL)
(€1,878.6 million), comprising 28.7% of the total public budget of the Repub-
lic of Latvia (see Table 3).
Table 3
9
General Government and Local Government Consolidated Budget Revenues89
Local Government Percentage of local

General Government
Consolidated Budget government budget
Year Consolidated Budget
revenues, in millions of revenues in
revenues, in million LVL9
LVL General Budget revenues
2004 2,522.2 679.0 26.9%

2005 3,199.8 805.7 25.2%
2006 4,015.6 1,032.5 25.7%
2007 5,350.6 1,432.4 26.7%
2008 5,723.0 1,677.0 29.3%
2009 4,728.4 1,334.3 28.2%
2010 4,607.0 1,320.3 28.7%
According to the Local Government Budgets Act, local budget revenues are
comprised of:
– apportionments from State taxes and fees
– local government fees
– State budget grants and earmarked grants
– grants from the Local Government Finance Equalisation Fund
8
Source: Annual Reports on the Execution of the General Government Consolidated Budg-
et (http://www.kase.gov.lv). Data for 2010 from the Official Monthly Report on the Execution of
the General Government Consolidated Budget (January-December 2010).
9
Latvia’s national currency is the «Lat». 1lats (LVL) = 1.42 euro (EUR); 1EUR = 0.702804 LVL.
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– transfers from local government budgets

– payments for services
– apportionments from company profits
– revenues from property (rents)
– revenues from property sales
– other revenues according to law.
In 2010, gross basic budget revenues amounted to 1,369.0 million LVL
(1,291.9 million LVL net), but net special budget revenues came to 25 million
LVL. The breakdown of the basic budget revenues in 2010 are reflected in Ta-
ble 4. Tax revenues usually represent approximately half of all revenues, while
State budget transfers comprise approximately one-third.
Table 4
Local government basic budget revenue structure in 201010
Amounts in % from total

Revenues
millions of LVL bruto revenues
Tax revenues 729,22 53,3
personal income tax 635,59 46,7
real estate tax 89,69 6,6
Nontax revenues 31,04 2,3
Revenues from service fees and other local sources 85,80 6,3
State budget transfers 442,96 32,36
transfers for operational purposes 270,98 19,79
earmarked grants 229,39 16,76
transfers for capital expenditures 3,69 0,27
revenues for EU SF projects 159,50 11,65
Local government transfers 14,30 1,04
Local government Finance Equalisation Fund 64,77 4,73
TOTAL GROSS REVENUES 1,368.09 100
7.3. Local taxation
It is important to stress that there are no local taxes in Latvia. The Taxes and
Fees Act provides only for State taxes. Therefore, the «tax revenues» of local
authorities consist of apportionments from four different State taxes:
– real estate tax (destined to local budgets: 100%);
10
Source: Official monthly report on the Execution of the General State Consolidated Budg-
et (January-December, 2010).
378
– personal income tax (destined to local budgets in 2009: 83%; in 2010:

80%; in 20111: 82%);
– lottery and gambling tax (destined to local budgets from tax on gambling
proceeds: 25%; from tax on local scale lottery: 100%);
– natural resource tax (in special budget, share from tax on pollution: 60%;
from tax on radioactive waste: 30%; from tax on incineration of dangerous
wastes and on mineral deposits: 100%).
The personal income tax has the greatest impact on local revenues. This tax
has been levied on residents’ income; the tax rate in 2010 was 26%, while prior
to that it was 25%. The State Revenue Service collects tax payments and redis-
tributes the funds to local governments, based on residence criteria. Only two
Republican cities, Riga and Ventspils, collect themselves the personal income
tax within their territory and transfer the State’s share to the State budget.
Up until 2010, the real estate tax was levied on all land slots and those build-
ings used for commercial activities, albeit with some exceptions (e.g., properties
belonging to municipal and foreign governments and to religious organisations).
In the period from 2006 to 2009, the tax rate was 1% of the property’s cadastral
(registry) value, increasing to 1.5% in 2010. As of 2010, the real estate tax is
levied on housing, as well. The tax rate for housing in 2010 was 0.1% for proper-
ties with an appraised value of less than 40,000 LVL; 0.2% for those with an
appraised value between 40,000 and 75,000 LVL, and 0.3% for those appraised
at more than 75,000 LVL. The minimum tax payment is 5 LVL. In 2011, tax
rates for housing doubled. Municipalities collect real estate tax, but they have no
decisive power in determining the tax rate. In 2011, the need for reform of the
real estate tax is being discussed, with plans for its institution in 2013.
The total amount of tax revenues, the tax revenues per capita and the pro-
portion of tax revenues in total characterize the financial capacity of local au-
thorities, in correlation with their repective levels of welfare. Data analysis re-
flects that this financial capacity varies widely. For example, in 2009 the
average tax revenue per capita was 300 LVL. The lowest tax revenues were
100 LVL per capita (33.3% lower than the average rate), while the highest was
509 LVL per capita (169.7% above the average). The portion of tax revenues
in the basic budget varied from 15% to 79%. The richest municipalities in
Latvia (in terms of tax revenues per capita) are the so-called «bedroom com-
munities» around the city of Riga. Before amalgamation, the difference be-
tween local units was higher, but with the reform there has been a kind of inter-
nal equalisation; nevertheless, the figures are rather small, as there are significant
regional disparities in Latvia.
On the other hand, and in accordance with the Taxes and Fees Act, local
authorities, following Cabinet regulations, can impose local fees in their admin-
istrative territories and determine their rates, among other, for the following
activities:
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– official documents and certified copies of the same issued by a local gov-
ernment council
– vacation and tourist accommodations
– trade in public places
– ownership of all types of animals
– motorized transport into zones of special use
– placement of advertisements, posters and announcements in public places
– ownership of boats, motorboats and sailboats
– utilisation of local government insignia
– delivery of construction permits.
7.4. State grants
In Latvia, there is rather high share of earmarked State grants in the local
budgets: in recent years it has been around 20%. The State provides almost no
general grants apart from contributing to the Local Government Finance Equal-
ization Fund. The system of financial equalization for local government was
introduced in 1995 based on recommendations from the Council of Europe and
on experience from Denmark. The goal of this equalization system is to provide
financial resources that ensure approximately equal opportunities to meet the
needs of all citizens. In recent years, local authorities have contributed more
than 90% of the Fund, while the share from the State budget has been less than
10%. Improvement of the equalization system is one of the main tasks related
to local governments on the central government’s agenda for 2011. As of 2004,
E.U. structural funds and other funds are also available for local governments,
then constituting a significant part of the local revenues (12% in 2010) that are
targeted towards development.
7.5. Borrowing
Local authorities have the right to borrow only to finance capital expendi-
ture. Short-term borrowing is only allowed to cover a short-term fiscal deficit
and must be repaid within a fiscal year. Loans must be approved by the Local
Government Borrowing and Guarantee Board, made up of representatives from
several ministries, the Treasury, the Central Bank and the Association of Local
and Regional Governments of Latvia. Municipalities can guarantee loans to
companies if the local government share is up to 50% in the given company
(65% for a joint municipal company). The total limit on local governments’
borrowing and guarantees is included in the annual State Budget Act and is
negotiated beforehand between the Cabinet (central government) and the As-
sociation of Local Authorities.
380
7.6. Budget implementation
Local councils do plan, adopt and implement their proposed budgets inde-
pendently. State institutions are not allowed to interfere with the drafting and
implementation of local budgets unless prescribed by law. At the beginning of
the year, the Local Governments Finance Supervision and Financing Depart-
ment of the Ministry of Finance provides aggregate information about self-
government budget plans. The Ministry of Finance monitors their compliance
with the existing legislation, but the ministry has no right to interfere with the
budgetary process except with regard to compliance with legislation. The
Treasury summarises budget implementation data, and makes up and publishes
monthly accounts.
According to the Local Authorities Act, at least once a year each local coun-
cil must invite an auditing company or a certified auditor for revision and state-
ment preparation for annual reports. Local authorities have the right to form
their own internal auditing (revision) commission, at the discretion of the local
council. Based on the auditors’ reports and its own selected revisions, the State
Audit Office issues an annual statement on local government’s budget reports.
If the Parliament passes a statute, or if the Cabinet of Ministers issues regu-
lations after the enforcement of the State Budget Act, and such new legislation
leads to an increase in the expenditure or a decrease in the revenue of the local
government budgets, the sources of State financing must be indicated in the
new act or Cabinet Regulation to cover the increase in the expenditure or the
decrease in revenue of the local government budgets. In practice, however,
these procedures are not always followed, thus allowing local governments not
to fulfill all compulsory tasks, which later results in legal nihilism.
Property, including financial resources, forms the economic basis of local

governments. In practice, local governments in Latvia usually own streets, lo-
cal roads, parks, cemeteries, buildings and facilities of local administration,
schools, kindergartens, social care institutions, culture clubs, libraries, sport
halls etc. They often own water treatment plants, heating facilities, landfill ter-
rains, etc. According to the Local Authorities Act, local government property is
segregated from State property and the property of other holders of rights. A
local government uses its property and must act with it in accordance with pro-
cedures prescribed by law.
Local property is utilised to satisfy the needs of residents of the relevant
administrative territory, either by ceding it for public use (roads, streets, public
squares, parks), or by establishing institutions and local government capital
companies that ensure the rights of residents and provide them with necessary
381
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services (administrative institutions, social and health care, educational, cul-

tural, sport and other institutions). The local government may utilise that part of
the property which is not necessary for the aforementioned purposes, to obtain
revenue by economic means for satisfying the needs of residents, or also, in
accordance with procedures prescribed by law, to privatise or alienate the same.
Property disputes between the State, other legal entities, natural persons and
local governments are decided in court.
9.1. State control over local decisions
Local governments, within the scope of their competence and the law, act in
an autonomous way, but, in implementing delegated State administrative func-
tions and administrative tasks, a local authority represents the Republic of
Latvia and is then subordinate to the Cabinet of Ministers. Different types of
control should be here considered.
On the one hand, unlawful decisions (resolutions) of a local council, with
the exception of resolutions applying to individual legal entities of physical
persons, or separate articles in a resolution, may be suspended by the responsi-
ble minister (as of 2011, the Minister of Environmental Protection and Re-
gional Development) by a substantiated ruling. Within three days after its adop-
tion, the ruling must be published in an official newspaper and forwarded to the
chairperson of the affected council. Within two weeks from the receipt of a
Minister ruling, the council’s chairperson must summon an extraordinary coun-
cil meeting which must decide whether to withdraw or annul the controversial
resolution or to make it comply with the laws and other legal acts in effect. The
Minister, then, must be duly notified as to the time and venue of the council
meeting. The chairperson of the council has the right to apply to court with an
appeal to revoke the instruction of the responsible minister without summoning
an extraordinary council meeting. If the council or council’s chairperson fails
to enact the conditions set by the relevant Minister or fails to apply to court in
due time, the illegal resolution or its separate articles will be considered as re-
voked. The minister publishes this state of facts in an official newspaper.
Physical and legal persons can report illegal local government activity to the
relevant minister. In relevant cases, reports can be submitted to the Prosecutor’s
Office, the Corruption Prevention and Combating Bureau, the Administrative
Court and the Constitutional Court.
On the other hand, if a local council’s chairperson fails to comply with, or
breaches, the Constitution, the laws or regulations of the Cabinet of Ministers,
or if he fails to execute a law court decision, the relevant Minister, after receiv-
ing an explanation from the said chairperson, can suspend him from office by a
382
justified order. The chairperson has right to appeal to the court to revoke the
minister’s order.
Until the beginning of 2011, the State institution responsible for overseeing
local governments was the Ministry of Regional Development and Local Gov-
ernment (MRDLG), established in 2003 by bringing together former State ad-
ministrative institutions in charge of supervising local authorities, regional de-
velopment, local government development, spatial planning at all levels and
housing development, which before that time had been under the supervision of
different ministries. Housing development was later moved to the Ministry of
Economics, but after the abolishment of the Secretariat for Special Assign-
ments of the Minister for Electronic Government Affairs (in 2009), the MRDLG
took on its functions. At the beginning of 2011, the MRDLG was amalgamated
with the Ministry of Environmental Protection, and as of 2011 the ministry re-
sponsible for local governments is that of Environmental Protection and Re-
gional Development.
9.2. The Ombudsman
The Office of the Ombudsman began to function in March 2007, when the
first Ombudsman in Latvia was elected by the Parliament. The Office of the
Ombudsman has jurisdiction over all public bodies at both the central and the
local levels. Approximately 10%-15% of all complaints and reports to the Of-
fice of the Ombudsman are related to local governments. The Ombudsman’s
statement is not legally binding, but rather serves as a guideline.
9.3. Dismissal of the local council
The Saeima (Parliament) has the right to dismiss a council if it:

– has repeatedly failed to comply with or breaches the Constitution, laws or
regulations of the Cabinet of Ministers, or if it fails to execute court deci-
sions;
– repeatedly adopts decisions and acts on issues within the competence of
the Saeima, the Cabinet of ministers, ministries, other State administrative
institutions or the courts;
– fails to elect the council chairman, his deputy and permanent committees
within two months after gathering for its first meeting or after the resigna-
tion of the respective officials or institutions;
– has no decision-making capacity due to failure of more than half of the
total number of its members to participate in three successive meetings.
Local councils are dismissed by the Cabinet of Ministers through the sub-
mission of a draft statute to that effect to the Saeima. Having approved such a
383
inga vilka
law for the dismissal of a local council and following a proposal from the Cab-
inet of Ministers, the Saeima appoints a temporary administration for the local
authority in question and establishes the data for a new local council election.
If less than 15 months remain until the regular local council election, no new
local council is elected.
Until now, there have been only two cases in which the Saeima has dis-
missed a local council. First was Renda pagasts in 2003. The reason for dis-
missal was the council’s lack of decision-making capacity, as more than a half
of the total number of members failed to participate in three successive council
meetings. After one member of the ruling coalition joined the opposition, it
acquired majority status on the council and openly ignored the meetings. Sec-
ond was Ķekava novads (in Riga district—one of the richest local governments)
in 2008, as it failed to work in compliance with the law and could not fulfill its
functions as determined by law (breaches were connected with construction
permits and illegal building).
Local governments’ interests are protected by the existing ‘negotiation frame-

work’ between the Cabinet of Ministers and the local governments. This system
is guaranteed and regulated by legal acts. According to the applicable regulations,
the Cabinet of Ministers and the local governments have agreed upon:
– the amount of transfers and earmarked grants allocated for local govern-
ments in the respective fiscal year;
– sources of funding necessary for the implementation of local govern-
ments’ functions;
– drafts of laws and regulations of the Cabinet of Ministers that are related
to local authorities; and
– other issues related to local government affairs which the central govern-
ment and local governments have discussed in annual negotiations.
By 1 April of each year, the Latvian Association of Local and Regional
Governments (hereinafter, «LALRG») submits the list of issues which will be
discussed with each ministry. The negotiation process is carried out by 1 Au-
gust. The results of negotiations between ministries and local governments are
presented in the form of minutes divided into issues upon which agreement has
been achieved and those upon which agreement has not been achieved and dif-
fering opinions have been expressed. Minutes are signed by the sector/branch
minister and the chairperson of the LALRG. Before signing the minutes, the
relevant ministry forwards the draft to the Ministry of Finance, the Ministry of
Justice and the ministry responsible for local governments. By 10 August, the
ministries must submit the signed minutes to the relevant minister. Copies of
the minutes are submitted to the Minister of Finance. By 1 September, the Min-
384
istry of Finance submits to the relevant minister a memorandum of understand-

ing with the LALRG. This memorandum is later submitted to the Parliament
along with the draft of the annual State Budget Law.
According the Local Authorities Act, a public organisation of local authori-
ties having among its membership more than a half of all types of local govern-
ments is entitled to represent local authorities in their negotiations with the
Cabinet of Ministers. The LALRG, founded on 15 December 1991, is such a
public organisation.
The main objectives of the Association are the development of local govern-
ment policy in Latvia, the solution of local government problems and the pro-
tection of local government interests. The main tasks of the Association, among
other goals, consist of representing the interests of its members before the State
authorities and administrative institutions; promoting its position in the policy
of Latvian local governments according to proposals of local/regional govern-
ments, their associations and unions; facilitating cooperation among Latvian
local/regional governments, their associations and unions; and organising train-
ing for local government deputies and employees.
Prior to the administrative territorial reform, more than 95% of the total
number of local governments was represented in the Association. Now, how-
ever, all local governments are members. The highest decision-making body of
the LALRG is its Congress, which is convened at least once a year. The Con-
gress is authorised to make decisions if it is represented by more than half of the
members of the Association. The resolutions of the Congress are adopted by the
majority of votes of participating delegates. The Council conducts the activities
of the LALRG between convened Congresses. The structure of the administra-
tion, staff and salary fund are also approved by the Council. At present there are
28 persons working in the administration. Apart from negotiations with the
central government, the LALRG’s work on draft laws continues in the Parlia-
ment, participating in committee meetings and in briefing political factions
within the Saeima. The Association tracks draft laws up to the third reading and
sometimes even after their adoption by the Parliament, requesting the State
President to return them for repeated consideration.
On the other hand, affairs affecting the interests of individual local govern-
ments are heard at meetings of the Cabinet of Ministers according to the Cabi-
net’s internal procedure rules. In that case, the relevant local authority is repre-
sented by its council chairperson or his authorised representative.
Finally, local governments have the right to take actions to court and to
present complaints before administrative institutions. If any law or other legal
act regulating the work of local authorities contradicts the Constitution, the Lo-
cal Authorities Act or any other hierarchically higher legal act, a local authority
may propose that these acts be revoked according to the procedure foreseen by
law: local governments have the right to present such complaints to the Consti-
tutional Court.
385
inga vilka
In the period from 2003 to May 2004, the politicians of Latvian local gov-
ernments had the possibility to participate in the EU Committee of the Regions
(CoR), with the status of observers. Since 1 May 2004, when the Republic of
Latvia became a member of the EU, Latvia has had a member delegation on the
CoR consisting of seven members and seven substitutes, all of whom are local
government councillors representing both different types and sizes of local
governments. In order to be able to influence EU legislation, which concerns
both local and regional government interests, in September 2005 the Represen-
tation Office of the Latvian Association of Local and Regional Governments in
Brussels was set up. The main objective of LALRG representation is to ensure
compliance with the interests of Latvian local and regional governments in the
process of elaborating E.U. legislation.
The LALRG Foreign Affairs Department is responsible for the coordination
of the Association’s international activities, including lobbying in EU struc-
tures. The LALRG representation office in Brussels is a part of the Foreign
Affairs Department and is located in the House of European Municipalities and
Regions in Brussels, where it shares joint premises with associations of some
18 countries. This facilitates coordination of position papers and opinions in
order to act effectively in different stages of the EU legislative process. The
Brussels’ Representation Office, in cooperation with the LALRG Department
of International Activities, performs different activities. Among other actions,
it coordinates LALRG lobbying activities in the EU; acts as Secretariat for the
Latvian members of the EU Committee of the Regions (CoR); coordinates the
preparation of proposals and opinions for issues dealt with by the CoR; carries
out consultations on general EU issues and policies; and disseminates experi-
ence and knowledge on the development of local democracy in Latvia among
interested parties.
Within the case-law of the Constitutional Court of the Republic of Latvia

(incepted in December 1996)11, there are several rulings dealing with local gov-
11
The Law envisages that the right to submit a claim to the Constitutional Court are held by
the following claimants: the State President, the Saeima (national Parliament), no fewer than
twenty members of the Saeima, the Cabinet of Ministers, the Attorney General, the Council of
the State Control, the Ombudsman, the Local Government Council, the courts of general jurisdic-
tion (when reviewing a civil, criminal or administrative case), a judge of the Land Book Registry
(when entering real estate—or thus confirming property rights on it—in the Land Book), as well
as any natural or legal person whose fundamental rights, as set out in the Constitution, have been
386
ernment: some 25 cases deal with local government territorial plans (spatial
plans), seven cases are related to administrative territorial reform and several
other cases are related to local governments. One of the most important judge-
ments is the Ruling of 21-1-2007, which deals with the compliance of the Sec-
ond Part of Section 7 of the Public Transport Services Act with Arts. 2, 3 and
the First, Third and Fourth Parts of Art. 4 of the ECLSG. In this decision, the
Court states the basis of local government.
Vilka, I.: «Experiments and Reforms in Decentralization», in: The Oxford

Handbook of Local and Regional Democracy in Europe. (Ed.) Laughlin J.,
Hendriks F., Lidstrom A. Oxford University Press, 2010, pp. 596-617.
Vaidere, I.; Vanags, E.; Vanags, I. & Vilka I.: Regional Policy and Develop-
ment of Local Government in Latvia and the European Union. Riga, 2008.
Vanags, E. & Vilka, I.: Pašvaldību darbība un attīstība. Rīga, LU Akadēmiskais
apgāds, 2005 (in Latvian).
Ministry of Regional Development and Local Governments: http://www.ra-

plm.gov.lv
Ministry of Environmental Protection and Regional Development: http://www.
vidm.gov.lv
Ministry of Finance: http://www.fm.gov.lv
Treasury: http://www.kase.gov.lv
Latvian Constitutional Court: http://www.satv.tiesa.gov.lv
Latvian Association of Local and Regional Governments: http://www.lps.lv
Central Election Commission of Latvia: http://www.cvk.lv
Central Statistical Bureau of Latvia: http://www.csb.gov.lv
City of Riga: http://www.riga.lv
violated. To date, the Constitutional Court has received more than 7,000 claims, and more than
400 cases have been initiated. Approximately half of the matters have been initiated by individu-
als. As of the end of 2010, the Court has made nearly 200 rulings.
387
Chapter 16:
LOCAL GOVERNMENT IN LITHUANIA
Diana ŠAPARNIENĖ
Aiste LAZAUSKIENĖ
Self-government in Lithuania dates from the 14th century. Vilnius, the capi-
tal of Lithuania, obtained the right to self-government in 1387 through the
Magdeburg Rights, which spread throughout Lithuania. Such self-government
established the right of towns (in the fight with feudal lords) to have their own
figure of authority (the magistrate) and a separate court consisting of a jury
elected by the townspeople.
In 1795, the Polish-Lithuanian Commonwealth was divided among Austria,
Russia and Prussia. The greater part of Lithuania went to the Russian Empire.
Governance was quickly reformed to follow the Russian model. In 1808, Lithua-
nian cities (Vilnius, Kaunas) began to be governed by dumas (councils). The
functions of the dumas were not extensive: they were to maintain order, stimulate
business and care for city property. Some problems related to city management
were solved by other institutions, e.g., the governor, the police, etc. In 1876, or-
dinances which replaced the order of elections to the self-government organs
entered into force. The city council or duma, which was elected for a four-year
term of office, was chosen not by the representatives of social castes but by the
owners of property. City residents being 25 or older who owned real estate in the
city and paid taxes to the city treasury had the right to vote. In 1892, Czar Alex-
ander III affirmed new city regulations that limited the rights of city self-govern-
ment somewhat, and the number of electors having the right to vote decreased.
In 1861, the occupied Lithuanian territory was divided into administrative
territorial units or townships, each having a caste-based form of self-govern-
ment with an assembly, a council and a court. Only peasants belonged to the
township municipalities. The nobility solved its matters separately: from 1566
to 1863, its institutions of local self-government functioned in county assem-
blies of noblemen.
389
diana šaparnienė - aiste lazauskienė
Following World War I, the sovereign state of Lithuania was restored in

1918. Administrative divisions remained similar to the previous ones: counties
were subdivided into townships. Self-government existed at two levels: both
county and township councils were elected. Depending upon their size, cities
belonged to either counties or townships. In 1919, the Municipalities Act was
adopted, establishing modern, democratic self-government. Local self-govern-
ment was provided for in 1922, in 1928 and in 1938 in the Constitution of the
Republic of Lithuania.
In 1940, when Lithuania was occupied and incorporated into the Soviet
Union, the constitutional institution of local self-government was abolished.
Local governments followed the directives of a single legally-operating com-
munist party.
In 1990, the independence of Lithuania was restored. The territorial admin-
istrative network remained the same as the one under the Soviet regime, except
that the elections to the institutions of local self-governance were democratic.
Through the Basic Act on Local Self-government, a two-tiered system of mu-
nicipal organization and authorization of municipal institutions was established,
with a higher tier consisting of 44 districts and 12 towns of the Republic and a
lower tier consisting of 80 district towns, 19 settlements of town’s type (vil-
lages) and 427 wards. Councils of wards, districts and towns were elected, and
an executive government was formed. The Council of Ministers had the right to
contest the decisions of higher-tier councils contradicting the law.
The system of local autonomous bodies established in 1990 functioned until
1995. In July 1994, a new statute on Territorial Administrative Units and their
boundaries replaced the former system of 581 administrative units with a new
system consisting of 66 territorial units: 10 counties and 56 municipalities (44
municipalities of districts and 12 municipalities of cities and towns). For the
first time in Lithuania, a single-tier system of self-government was created.
With the abolishment of the lower tier of self-government and the establish-
ment of a new model of administrative structure of state territory, local govern-
ment was distanced from the people.
In 1994, a proportional election system was instituted. This system wanted
to provide the conditions to strengthen parties, as well as allowing for the pre-
conditions for the creation of party coalitions. As of 2011, not only parties but
also independent candidates may participate in the elections.
In 2003, the model of institutional structure changed: boards were elimi-
nated (previously, each board had been elected by the council members and
managed by the mayor), the mayor became chairman of the council and the
director of municipal administration became the executive manager.
For what concerns counties, in 1995 they became de-concentrated State au-
thorities, headed by centrally-appointed governors who controlled their own
administration. In 2010, another county reform was carried out and the admin-
390
local government in lithuania
istrations of counties’ principals were dissolved. Counties now exist as territo-

rial administrative units.
In the future, it is planned to form four or five regions out of the 10 existing
counties and, at the municipal level, to provide more independence to the wards;
in addition, there are discussions regarding the inception of the model of a di-
rectly-elected mayor.
In compliance with the Constitution of the Republic of Lithuania, there are

two types of territorial authoriries: municipalities (savivaldybė) and «higher
territorial units» or counties (apskritis).
The county is the highest territorial administrative unit of the Republic of
Lithuania, the administration of which is organised by the government of the Re-
public. As of 1995, there are 10 counties in Lithuania. They were established from
municipalities having common social, economic and ethno-cultural interests. They
vary in size, from four to eight municipalities. The largest county has a population
of 850,000 and the smallest, 135,000 with the average being 350,000. The major-
ity of Lithuanian counties have populations of 150,000 to 200,000 citizens.
In Lithuania, local self-government comprises a single-tier level of bodies:
municipalities, which are territorial administrative units of the Republic. They
are governed by municipal institutions, which are elected by the local commu-
nity in accordance with the Act on Local Self-government of the Republic of
Lithuania (1994) and other statutes. The main criteria to determine the estab-
lishment of a municipality are its readiness to care for its environment, the
strength of its economy, its ability to provide services for its residents and to
pursue other functions. As of 2000, there are 60 municipalities in Lithuania.
A municipality possesses its oun boundaries, a centre and a specific catego-
ry. There are different categories of municipalities: «city municipalities» (mies-
to savivaldybė), «district municipalities» (rajono savivaldybė) and just simple
«municipalities» (savivaldybė), to which neither the «city» nor «district» label
is applied and which is usually smaller than a district municipality. For exam-
ple, Vilnius is a city municipality (Vilniaus miesto savivaldybė), Raseiniai is a
district municipality (Raseinių rajono savivaldybė) and Rietavas is just a mu-
nicipality (Rietavo savivaldybė). There are seven city municipalities, 43 district
municipalities and 10 simple municipalities. All municipalities have the same
status, competences and institutional structure, although they differ in terms of
size, needs and problems. The scope of competences is the same for any type of
municipality, regardless of its size.
The largest municipality consists of over 550,000 citizens; the smallest, of
2,400. The average municipality has a population of 56,722, with the majority
having from 20,000 to 40,000.
391
Lithuanian municipalities are relatively greater in size and population than

those of other European Union countries. A large majority of municipalities
(66.7%) have between 10,000 and 50,000 residents.
Population distribution among Lithuanian municipalities can be summa-
rized as follows:
Under 1,000 1,000-5, 000 5,001-10, 000 10,001-50, 000 50,001-100,000 Over 100,000
Percentage of population residing in each:

0 1.7% 1.7% 66.7% 21.6% 8.3%
Municipal councils have the right to divide municipal territories into wards
(seniūnija). As only administrative subdivisions of the municipalities, wards do
not have any form of local autonomy. At present, 524 wards exist, with each
municipality having eight to nine wards. These are subdivided into elderships
(seniūnaitija), in which the citizens elect an elder. However, neither the ward
nor the eldership has the right to autonomy.
In 1993, upon joining the Council of Europe, Lithuania undertook to sign

and ratify the European Charter of Local Self-Government («ECLSG»). This
Charter was signed in Strasbourg on November 26, 1996, and the Seimas (Par-
liament) of the Republic of Lithuania ratified it on May 25, 1999. The ratified
documents were deposited on June 22, 1999, and the Charter came into force
on October 1, 1999. This Charter was ratified by Lithuania without any reserva-
tion or declaration. The ratification of the Charter was a positive step in the
development of democracy and the implementation of the principles of decen-
tralisation and subsidiarity in Lithuania.
In accordance with part 3 of Art. 138 of the Constitution of the Republic of
Lithuania, «all international treaties which are ratified by the Seimas of the
Republic of Lithuania are the constituent parts of the legal system of the Repub-
lic of Lithuania». This provision recognises the «monistic» approach towards
international treaties. According to this doctrine, international law, as the con-
stituent part of the internal (national) legal system, is directly applicable. Con-
sequently, the governing institutions of Lithuania, as well as the Lithuanian
courts, must directly apply the provisions of the ratified international treaty—in
this case the European Charter of Self-Government—, since no other internal
legal act is needed.
The ratification of the ECLSG means that Lithuania has declared its com-
mitment to this international treaty. Moreover, its ratification means that the
State has committed itself to adjusting its laws on local government according
392
to the provisions of the Charter and to respecting all principal provisions de-
fined in it. Thus, in Lithuania the Charter is given direct legal force. In the
Lithuanian legal system, the Charter takes on a special and distinctive role.
The interface between the Charter and Lithuanian national law is based fore-
most on Arts. 138 and 7 of the Constitution of the Republic of Lithuania. As
previously mentioned, Art. 138 provides that international treaties ratified by
the Seimas of the Republic of Lithuania are constituent parts of the Republic’s
legal system. According to Art. 7, in Lithuania neither the law nor any other
legal act contradicting the Constitution is valid. Bearing in mind this constitu-
tional rule, it can be stated that the ECLSG is a part of the basis of the legal
system of the Republic of Lithuania, but it cannot contradict the Lithuanian
Constitution. If the legal norms contradicted the Constitution, the mentioned
legal acts could not be considered valid. The conclusion can be made that the
Lithuanian Constitution is the most powerful legal act of the Republic, and the
European Charter of Local Self-Government is a legal act of inferior legal sta-
tus than that of the Constitution.
The connection between the ECLSG and the Lithuanian laws was defined
on June 22, 1999 in Part 2 of Chapter 11 in the Act on International Treaties of
the Republic of Lithuania. This provision of the law establishes the ratified in-
ternational treaties as «the law of the land», and accordingly the precedence of
the ECLSG, in case of contradiction with domestic legislation.
Bearing in mind what has been said above, the conclusion could be made
that in a case of contradiction, the Charter actually takes precedence over
Lithuanian laws, but this Charter cannot contradict the Lithuanian Constitu-
tion. This conclusion also presupposes consequences, whatever they may be,
if the adopted laws are not compatible with the Charter. In this case, if laws
or other legal acts contain regulations other than those ratified in the Charter,
the provisions of the ECLSG must be applicable. Again, they cannot contra-
dict the Constitution, which, as previously mentioned, has the highest legal
rank in the Republic. This position is actually followed by Lithuanian courts
in resolving cases. The said position—that of the precedence of the Char-
ter—is revealed when the Seimas of the Republic of Lithuania adopts the
relevant laws, and the same is true for the decrees issued by the ministers.
For instance, in Chapter 2 of the Act on Local Self-Government of the Re-
public of Lithuania, it is noted that this law determines the formation of the
municipal councils and the order of their activities, while implementing the
provisions of the Constitution and of the European Charter of Local Self-
Government.
Therefore, local government in Lithuania is guaranteed by a double protec-
tion – by the guarantees set in the Constitution, and by the laws and interna-
tional treaties that ensure the implementation of a model of participatory de-
mocracy corresponding to a system of local governing institutions, and a legal
order based on the decentralisation of the government.
393
The Constitution of Lithuania, adopted by referendum on October 22, 1992,

contains a specific chapter including six Articles (119-124) on local self-gov-
ernment. In accordance with the Lithuanian Constitution, the right to self-gov-
ernment is guaranteed to administrative units of the territory of the State and is
implemented through corresponding municipal councils. Lithuanian citizens
elect the members of municipal councils for a four-year term, as provided for
by the law, from among citizens and other permanent residents of the adminis-
trative units through universal, equal and direct suffrage by secret ballot. The
procedure for the organisation and activities of the institutions of self-govern-
ment is established by law. For the direct implementation of the laws of the
Republic of Lithuania and of the decisions of the Government and the munici-
pal council, the municipal council forms executive bodies accountable to it
(Art. 119). According to Art. 120, the State supports the municipalities, which
act freely and independently within their competences, as defined by the Con-
stitution and laws. According to Art. 121, municipalities draft and approve their
individual budgets. Municipal councils have the right, within the limits and the
procedures provided for by law, to establish local levies; municipal councils
may provide for tax and levy concessions at the expense of their own budget.
According to Art. 122, municipal councils have the right to legal appeal is case
of violation of their rights.
The observance of the Constitution and the laws, as well as the municipali-
ties’ execution of decisions made by the Government, is supervised by Govern-
ment-appointed representatives. In some cases and according to the procedure
provided for by law, the Seimas may temporarily introduce direct rule in the
territory of a municipality. According to Art. 124, acts or actions of municipal
councils, as well as of their executive bodies and officials, which violate the
rights of citizens and organisations, may be appealed in court.
The organisation and functioning of local authorities in Lithuania are regu-
lated in numerous laws and regulations. The most important are the Acts on:
– Local Self-Government (adopted in 2000);
– Elections of Municipal Councils (adopted on July 7, 1994);
– Budgeting (adopted on July 30, 1990);
– Temporary Direct Rule in the Municipal Territory (adopted on March 28,
1995);
– Administrative-territorial Units and Their Boundaries (adopted in July
1994);
– the Association of Municipalities of Lithuania (adopted on March 28,
1995);
– Territorial Planning (adopted on December 12,1995);
– Transfer of State Property to Municipalities (adopted on February 12,
1997);
394
– Methodology of Determination of Municipal Budgetary Revenues (adopt-

ed on July 7, 1997);
– Administrative Supervision of Local Authorities (adopted on May 14,
1998);
– Management, Utilisation and Disposition of State and Municipal Proper-
ties (adopted in May 1998); and
– Public Service (adopted in July 1999).

AUTHORITIES
Lithuanian local authorities do not have many powers. They do not have
sanctioning powers over individuals and firms, nor can they expropriate private
property.
Local authorities are able to institute different structural subdivisions of the
municipalities, such as bodies for public health, social services, education, mu-
nicipal companies and others. Local authorities are obliged to manage local
public services: education (kindergarten, primary, secondary), social and pri-
mary public health services, municipal transport, public utilities (energy, infra-
structure, water) and some cultural and environmental administrative services
(certificates, registries and others).
The competences and functions of municipalities are listed in the Act on
Self-Government of the Republic of Lithuania, and they may be divided into
«autonomous» functions and those delegated by the State.
(A) Autonomous functions, stipulated by the Constitution and laws, in-
clude, among others, the following:
– drafting and approval of a municipal budget;
– levying local taxes, fees and charges;
– management, use and disposal of the land and other property which belong
to a municipality by the right of ownership;
– organisation of general education, vocational training and vocational guid-
ance of children, youth and adults (creation, reorganisation, maintenance
and closure of educational establishments; organisation and implementa-
tion of teaching according to formal education programmes);
– organisation of transportation, free of charge, between home and school
for comprehensive school pupils residing in rural localities;
– planning and provision of social services; creation and maintenance of
social service establishments, social families and cooperation with non-
governmental organisations;
395
– creation of social housing with provisions for its maintenance; social

housing rent;
– primary personal and public health care (creation, reorganisation, mainte-
nance and closure of establishments);
– territorial planning;
– supervision of construction works;
– planning of infrastructure; social and economic development; preparation
of strategic development and action plans;
– participation in the preparation and implementation of regional develop-
ment programmes;
– improvement and protection of the quality of the environment;
– development of physical training and sports; recreational organisation;
– organisation of supplies of heating and drinking water and of wastewater
treatment;
– development of municipal waste management; organisation of collection
and processing of secondary raw materials; creation and exploitation of
landfills;
– maintenance, repair and surfacing of municipal roads and streets of local
significance, as well as organisation of traffic safety;
– organisation of local passenger transportation;
– participation and cooperation in ensuring public order; creation and imple-
mentation of crime prevention programmes;
– approval of sanitary and hygiene regulations and supervision of their com-
pliance, ensuring cleanliness and order in public places;
– issuance of permits (licences) as prescribed by law;
– oversight of compliance with the prohibition or restriction of alcohol and
tobacco advertisements in outdoor advertising;
– assurance of the rendering of burial services; organisation of cemetery
maintenance;
– monitoring and control of private and business activities;
(B) The most important State-delegated functions of municipalities are,
among others, the following:
– registration of acts of civil status;
– civil protection; emergencies and fire protection;
– participation in management of national parks;
– calculation and payment of social benefits;
– management, use and hold in trust of the State land and other State prop-
erty assigned to the municipality;
396
– usage and accuracy control of the State language;

– management of archival documents assigned to municipalities according
to law;
– participation in selecting draftees for military service;
– provision of statistical data; population and dwelling censuses;
– participation in preparing and implementing labour market policy meas-
ures and employment programmes;
– participation in organising elections and referendums, as provided by the
law;
– participation in carrying out opinion polls and other popular initiatives,
provided by the law;
– protection of the rights of children and youth;
– administration of agricultural production quotas;
– registration of agricultural holdings and farms;
– management and use by right of trust of State-owned land reclamation and
hydro-technical construction works;
– administration of implementation of rural development measures;
– provision of primary legal aid guaranteed by the State;
– provision of social care to severely disabled persons; and
Municipalities administer and ensure the rendering of public services to
their residents by determining the manner in which these services are offered,
setting up municipal bodies and public establishments, selecting providers of
public services in accordance with the procedure stipulated by laws and other
legal acts, and implementing supervision and control over the rendering of such
services. In the absence of a provider for a given public service, a ward
(seniūnija) may, by the decision of the municipal council, deliver such missing
public service.
The members of the municipal councils of the Republic of Lithuania (here-

after referred to as «municipal councillors» or «councillors») are elected for a
four-year term by universal and equal suffrage, by secret ballot and direct elec-
tions under the proportional electoral system. One multi-member constituency
of a municipality (hereafter referred to as a «constituency») is formed in each
municipality.
The permanent residents of a municipality who are 18 years old on the poll-
ing day have the right to elect the councillors. Persons who have been deemed
legally incompetent by courts may not participate in elections to municipal
councils (hereafter referred to as «elections»). Any permanent resident of a
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particular municipality who is at least 20 years of age on the polling day may
be elected as a member of the council of that municipality.
At least 35 days before the election, parties may form coalitions and com-
bine the lists of nominated candidates to make joint lists. Candidates in the joint
list of parties cannot make up less than a half and/or more than twice the number
of municipal councillors to be elected. The name of a coalition of parties must
include the word «coalition» and cannot contain any references to the names of
parties which do not form part of this coalition or the names of self-nominated
candidates. A joint list of candidates of parties is considered to be a single list.
In a given municipality, the same party may not participate in more than one
coalition. Self-nominated candidates may unite to form joint lists of self-nomi-
nated candidates.
Voting lists are not «closed» but «open»: in their ballots, voters may cast
preference for the candidates in any list. As a consequence, the number of votes
cast for each individual candidate will determine his actual ranking in the list
after the election.
Under the proportional electoral system, the following number of council-
lors will be elected in each municipality:
– more than 500,000 inhabitants: 51 councillors
– 300,000 to 500,000: 41
– 100,000 to 300,000: 31
– 50,000 to 100,000: 27
– 20,000 to 50,000: 25
– 10,000 to 20,000: 21
– 5,000 to 10,000: 17
– fewer than 5,000: 15
The municipal council consists of representatives of the municipal commu-
nity—members of the municipal council (hereafter referred to as «councillors»)
who have been democratically elected according to the legally established pro-
cedure. The powers of the municipal council become effective when the elected
councillors first convene, and they expire when the councillors elected for a
new term of office first convene.
The municipal council is authorised to consider and adopt the majority of
important decisions concerning local life. The council approves the budget,
adopts the decisions to levy taxes, tolls and other duties; adopts decisions con-
cerning the disposal of municipal property and the establishment of budget in-
stitutions, municipal corporations, public institutions and stock companies, as
well as participation in their establishment. The council adopts the decisions
regarding the sub-districts and their number, etc. Every council member must
belong at least to one committee of the municipal council. The committees
discuss issues, together with proposals for their solution, for the council’s con-
sideration.
398
For the duration of its term of office, the municipal council elects a munici-
pal mayor from among the councillors and, at the mayor’s proposal, appoints
one or more deputy mayors. The maximum possible number of deputy mayors
of a given municipality is determined by the number of its municipal council-
lors. No more than three positions of deputy mayor may be established in any
municipality whose council consists of 41 or more councillors; no more than
two positions of deputy mayor may be established in any municipality with a
council consisting of 27 to 31 councillors; and no more than one position of
deputy mayor may be established in other municipalities.
The mayor heads the municipality. Only citizens of the Republic of Lithua-
nia may become mayors or deputy mayors. The mayor is elected and his depu-
ty is appointed by secret ballot. The mayor is considered elected and a deputy
mayor is considered appointed if the majority of all the councillors have voted
for their candidatures. The mayor is accountable to the municipal council and
the community.
The powers of the mayor and deputy mayor(s) will be terminated prior to the
end of their term of office in case of a successful impeachment, which requires
specific majorities. If a vote of impeachment is not adopted, it may not be re-
considered for at least six months.
The mayor discharge important duties in the municipality:
– He/she plans the activities of the municipal council, sets and draws up the
agendas of municipal council meetings, convenes municipal council sit-
tings and presides over them, presents drafts of the council’s decisions,
co-ordinates the activities of the municipal council’s committees and com-
missions and signs the municipal council’s decisions and the minutes of
the meetings over which he has presided;
– He/she represents personally (or authorises other persons to represent) the
municipality in court, or with other municipalities, state institutions and
institutions of foreign states, as well as with other natural and legal per-
sons;
– He/she represents the municipality in the regional development council
and has the right to vote when preparing and implementing a regional de-
velopment programme;
– He/she submits to the municipal council a draft description of the compe-
tences of the deputy mayor(s);
– He/she submits to the municipal council a proposal to set up a municipal
council board;
– He/she submits to the municipal council proposals for the establishment of
the municipal council secretariat or for the establishment of positions of
civil servants of his or her political (personal) confidence (if a secretariat
is not established), as well as designation of their number, etc.
399
The organisation of the Municipal executive is headed by the director of the

municipal administration. This managerial official is subordinated to the mu-
nicipal council and is accountable to it and to the mayor.
The director of the municipal administration is appointed by the council upon
the recommendation of the mayor, on the basis of political (personal) confidence,
for the duration of the municipal council’s term of office. The number of terms of
office for the same person is unlimited. The council, on the recommendation of
the director of the municipal administration and upon the mayor’s proposal, may
appoint one or several deputy directors of the municipal administration. The mu-
nicipal council may impose disciplinary sanctions on the director and/or deputy
director(s) of the municipal administration for misconduct in office. The proce-
dure for imposing disciplinary penalties is initiated by the mayor on the grounds
of the written information received by him regarding the misconduct in office of
the director and/or deputy directors of the municipal administration.
The term of office of the municipal council is four years. Therefore, every
four years new council elections take place. The mayor is elected and the ap-
pointment of the new director of the municipal administration takes place.
The director of the municipal administration is directly and personally re-
sponsible for the implementation of the laws and decisions of the national gov-
ernment and of the municipality council in the municipal territory, on the mat-
ters entrusted to him. During the direct implementation of the said laws and
decisions, the director of the municipal administration has the right to ask for
assistance from the national administration. It may also address orders to the
structural-territorial subdivisions of the municipal administration and to civil
servants. Finally, he may also give orders to the residents of the municipal ter-
ritory and to other subjects of the territory of a municipality. The director of the
municipal administration discharges several duties. Namely, he organises the
work of the municipal administration; he runs the execution of the municipal
budget; he organises the economic and financial operations of the municipality;
and he acts as administrator of municipal property.
Additionally, in the area of human resources management, the director of
the municipal administration: (a) appoints and dismisses the civil servants of
the municipal administration and its other employees; (b) imposes official dis-
ciplinary sanctions; (c) coordinates and controls the work of companies provid-
ing public services; (d) carries out other staff management functions assigned
to him by the Law on Civil Service; and (e) organises training and skills devel-
opment for the members of the municipal council and for its civil servants.
6. HUMAN RESOURCES
Municipal administration consists of organizational units and civil servants.

The structure of the municipal administration and the working conditions of
local civil servants and employees working under labour contracts and receiv-
400
ing payment from the municipal budget are approved and modified by the mu-
nicipal council at the proposal of the director of the municipal administration
and the recommendation of the mayor. Staff positions are approved by the di-
rector of the municipal administration.
There are two types of public employees in local authorities: civil servants
and employees working under labour contracts. The conditions and norms of
service of civil servants of the municipal administration are stipulated in the
Civil Service Act. According to this law, a person recruited as a civil servant
must satisfy general requirements, i.e. he must be a citizen of the Republic of
Lithuania, must know the Lithuanian language, must be over 18 and must have
higher education. Civil servants of the municipal administration report to the
director of the municipal administration.
It is worth mentioning that in the municipalities, public administration is
carried out by civil servants. There is no separate category of «municipal» civ-
il servants, as the Civil Service is unitary. There are no special types of local
employees who are selected or recruited by central/regional governments. Lo-
cal authorities have the power to select and to manage their own human re-
sources. The public employees of a local administration cannot simultaneously
be a member of their municipal council.
As stated above, the director of municipal administration is not a career of-
ficial: he is an appointed civil servant of political confidence; there is no open
competition to recruit the director. A person may serve an unlimited number of
terms of office as the director of the municipal administration. In contrast to the
maximum age of service allowed for civil servants (62.5 years), the maximum
age for officials of political confidence is not stipulated. Thus, the age of the
director of municipal administration is not limited.
Municipal budgets consist of tax revenues, non-tax revenues and financial

grants. Tax revenues are comprised of:
– personal income taxes, minus deductions for compulsory health insurance,
as per the Law on Health Insurance;
– property taxes;
– income from the leasing of State land, or bodies of water, for business or
amateur fishing
– estate taxes on enterprises and organisations;
– stamp taxes, as determined by the Stamp Tax Law;
– market fees;
– inheritance and gift taxes; and
– other tax revenues, as determined by law.
401
The bulk of tax revenues (approximately 80%) is composed of personal in-

come tax. Another 15% is composed of estate taxes on enterprises. Other taxes
make up the remaining 5% of revenues. Non-tax revenues are comprised of:
– incomes from municipal property;
– fines and incomes received from confiscation of illegal goods, as deter-
mined by law;
– local taxes, as determined by the Law on Local Tax;
– administrative fees for local services provided;
– other revenues (e.g., income from national non-agricultural lands appro-
priately leased or sold, other non-tax revenues determined by law).
Financial grants, received by the municipality from the State, are divided
into special-purpose and multi-purpose grants. Special purpose financial grants
are used to:
– compose contingency funds for the planned fiscal year;
– compensate tax revenues; and
– compensate for the differences in the structure of municipalities’ expenses.
Special-purpose financial grants, currently being increased, are allocated to
carry out certain functions at the national level.
The bulk of all municipalities’ income is composed of financial grants. At
present, financial grants comprise more than 50% of all municipal revenues,
with tax revenues comprising approximately 35%. In addition, there is a grow-
ing tendency to collect as great a portion of tax revenue as possible and to dis-
tribute it in a centralised manner. As a consequence of this state of facts, the
financial independency of municipalities is decreasing.
Through State tax inspectorates, all tax earnings allocated to local budgets are
transferred to them, whereas collecting personal income taxes for local budgets is
more complicated. Before transferring personal income tax revenues to munici-
pal budgets, the State tax inspectorates first transfer a certain percentage of these
revenues to the mandatory health insurance fund and to the State budget. The
exact percentage is determined by the Law on Ratification of Financial Indexes
of State and Municipal Budgets for the corresponding years. Next, the State tax
inspectorates transfer to the municipal budgets the percentage portion of personal
income tax which is indicated in the Annex of the law that determines the in-
comes of municipality budget of the Republic of Lithuania. Respectively, 40%,
74%, 64%, 84%, 96% and 55% of the collected taxes are earmarked for certain
municipalities, i.e., Vilnius, Kaunas, Klaipėda, Palanga, Panevėžys, Šiauliai City
and the region of Mažeikiai. The remaining municipalities receive 100% of the
taxes collected. For the seven aforementioned municipalities, in which the per
capita income tax revenues are higher than the average, the deducted parts of
personal income tax are transferred to the Treasury.
402
On the other hand, Lithuanian law does not define the concept of local taxes,
and all taxes belonging to municipalities are administered by the State tax in-
spectorates. Taxes ascribed to the municipalities (except those on personal in-
come) may be termed «local», but municipalities have few rights to change
their rates: they can only decrease the rates or exempt them on account of their
individual budgets.
Municipalities have more freedom in the domain of market fees (which they
may increase or decrease by up to 70%), rental fees for the use of State land and
bodies of water pertaining to the national water fund, as well as the tax on eco-
nomic activities, where municipal councils determine a fixed income tax).
These opportunities, however, do not play an important role in municipal budg-
ets: the essence of the problem is not that municipalities have few opportunities
to determine the amounts of taxes ascribed to them, but that these taxes com-
pose a very small part of municipal revenues—only 1%.
It is noteworthy pointing that Lithuania has begun implementing the guide-
lines set by the European Council in 1998 for equalising municipal fiscal re-
sources. This is done through the tax funds transferred to the Treasury. A cer-
tain percentage of income tax revenues is obtained only from the aforementioned
seven municipalities. That is to say, this percentage of personal income tax
from seven municipalities is redistributed by the Treasury in order to equalise
the personal income tax revenues of the remaining 53 municipalities. There-
fore, these transfers support those municipalities that collect less than the aver-
age amount of per capita personal income tax.
Yet, the municipalities’ system of collecting tax revenues ensures neither
their financial independence nor the efficiency of their functioning. Potential
revenues, based on foreseeable expenses, are drafted by the Ministry of Fi-
nance, which also calculates the so-called «basic» expenses and the final
amounts of expenses. When determining municipal budget expenses, the Min-
istry of Finance divides the municipalities into six groups, according to simi-
larities in their infrastructures and functioning conditions.
Personal income tax rates, which form an important part of municipal budg-
et revenues, are determined annually for each municipality and are based upon
the calculated expenses of each local body. In economic terms, this does not
differ from financial granting. Therefore, through financial grants the central
government may easily strengthen the control and supervision of municipalities
and may limit the competences of local authorities with respect to financial is-
sues: in other words, it may increase centralism.
The ability of municipalities to influence the amount or base of these taxes
is limited by law. It may be said that the municipalities themselves are not yet
interested in collecting more revenues, since this may prove disadvantageous to
them if, when the following year’s budget is being approved, there is a risk that
personal income tax rates might be reduced. Municipalities often find it diffi-
cult to plan their budgets credibly and to finance foreseen fields of activity.
403
After Lithuania joined the European Union, its municipalities became com-
petitors for structural funding. This competition stems from the established pro-
cedure: the Ministry of Finance receives funding from the E.U. A given munici-
pality presents a project and in this way receives financing. The struggle among
municipalities over various projects is rather complicated, since many munici-
palities lack specialists capable of preparing project applications properly; in
administering them, there is a problem of general project financing. Sometimes,
the financial support goes to the economically stronger municipalities.
In Lithuania, municipalities can have assets and property. The main law
defining municipal assets is the Act on the Management, Use and Disposal of
State and Municipal Assets (12 May 1998 – No VIII-729). The activities of
enterprises whose assets, as per the property law, belong to the municipality are
regulated by the State and Municipal Companies Act.
The Institute of Lithuanian Municipal Assets was established in 1998, with
the implementation of the Law on Transfer of State Assets to Municipalities. In
accordance with this law, municipalities received an important group of assets,
like the stocks of former public companies, state property managed by munici-
pal institutions as well as assets that the municipalities managed under the right
of trust; municipal buildings, sport buildings and equipment, movable property
and financial funds managed by self-government institutions, etc.
Municipal assets are classified as tangible fixed assets, intangible assets,
and financial assets.
Municipal tangible fixed assets are comprised of:
– land, buildings and infrastructures, facilities and other items of immovable
property belonging to a municipality by right of ownership;
– movable and immovable cultural property and monuments of local sig-
nificance belonging to a municipality by right of ownership; and
– other tangible fixed assets.
On the other hand, municipal intangible assets are comprised of:
– the objects of heraldry belonging to a municipality; and
– patents and licences, as well as rights derived from the same, state certifi-
cation marks, technical design documents, information processing soft-
ware and results of intellectual activities.
Finally, municipal financial assets are comprised of:
– the monetary resources of a municipal budget derived from taxes, levies
and other fees in accordance with laws and other legal acts;
404
– the securities held by municipalities by right of ownership and property

rights derived from these securities; and
– the right of claim to the loans issued by a municipality.
A municipality may acquire assets by different ways:
– receiving State assets which are transferred into the ownership of munici-
palities in accordance with the law;
– receiving State assets for the purpose of performing independent and as-
signed (i.e., of limited independence) municipal functions, where these
assets are transferred into the ownership of the municipalities by Govern-
ment resolutions;
– obtaining revenues from taxes and other fees and levies in accordance
with the law;
– obtaining revenues from the management and use of municipal assets;
– carrying out transactions;
– inheriting assets through a will;
– taking over, by decision of the court, vacant properties.
Municipal assets are managed, used and disposed of by municipal councils
in accordance with the Law on Local Self-Government, in performing the func-
tions of the owner of assets; and by other municipal institutions, municipal
corporations, agencies and organisations, by right of trust. Municipalities estab-
lish schools, kindergartens, museums, institutions of social services, medical
aid posts, hospitals, etc.
Municipalities cannot acquire land that the State controls by law, e.g., na-
tional parks, nature sanctuaries, health resorts, agricultural land, land of public
domain, etc.
Municipalities carry out their economic activities through municipal compa-
nies. Such a company may be established by municipal funds or may be con-
verted into municipal ownership, if its assets belong to the municipality by right
of ownership. The company manages, uses and controls the assets by right of
trust. The municipality runs the strategic management of the local company: it
has the right to determine the obligatory works and tasks of the company, the
tariffs and rates of goods and services (as well as their calculation) and the ad-
ministrative positions of its employees.
According to the Act on Administrative Supervision of Municipalities, the

compliance of municipalities with the decisions of the national Government is
supervised by specific State officers. In each of Lithuania’s 10 counties, a gov-
405
ernment representative, as an independent constitutional figure (directly subor-

dinate to the central Government and accountable to the Prime Minister) super-
vises the municipalities under his jurisdiction (usually, from four to eight). The
position of central government representative is staffed by a civil servant, ap-
pointed for four years.
The government representative heads an office designed to assist him in the
discharge of his duties, with an oversight by the Government.
The main executive function of the national government representative is to
supervise whether municipalities follow the Constitution when adopting rules
and regulations, and whether local bodies respect the laws when executing gov-
ernmental decisions. The national government representative scrutinises regu-
lations adopted by the municipalities, as well as their projects; advises local
authorities to cancel or change illegal legal acts; and mandates compliance with
the law. If, after having discussed a representative’s decision, a municipality
refuses to modify or cancel a given local ordinance, then the representative of
the national government reports to the court by filing a legal challenge.
All the rights and duties of the national Government representative are de-
termined by the special Law on Administrative Supervision of Municipalities.
Therefore, the representative has the right to participate in the meetings of the
municipal council, to present reasoned arguments for the change or cancella-
tion of illegal decisions and municipal regulations, and to present a written
request for the urgent implementation of the law in order to carry out a central
government decision. It is also important to emphasize that the central govern-
ment representative has the authority to suspend (via the presentation of alle-
gations) the implementation of rules adopted by a local council if the said acts
may give rise to illegal decisions which violate the public interest. If, after
having considered the representative’s allegations, the municipality refuses to
change or cancel the rule in question, the government representative may file
a lawsuit in court. A suspended municipal regulation cannot be implemented
until the court adjudicates the case.
As mentioned above, if a central government representative sees that a pub-
lic interest is being violated, he can file a direct lawsuit in its defence. For ex-
ample, the municipal council of one city municipality made the illegal decision
to close an elementary school, while in reality the school was being reorgan-
ized. This illegal decision was in violation of the public interest because an in-
frastructure that was part of the municipal budget and whose aim was to satisfy
the public need for education was eliminated. Furthermore, the rights of all
members of the school staff were violated, since in the closing of a school, all
employees’ labour contracts are terminated, whereas in the reorganization of a
school, firings are forbidden. In defending such a violated public interest, the
central government representative appealed to the circuit court, petitioning for
the suspension of the municipal council’s illegal decision. The court rejected
the implementation of the local decision.
406
The government representative does not examine complaints from physical

and legal entities regarding individual decisions adopted by municipal bodies.
Individuals and firms may file administrative appeals, according to the specific
laws in each particular sphere. Furthermore, there are special institutions that
investigate citizens’ complaints and that perform jurisdictional functions (e.g.,
the Chief Administrative Disputes Commission, the Seimas Ombudsman, etc.).
Decisions or actions of municipal institutions and civil servants which vio-
late the rights of residents, institutions, establishments and organisations may
be appealed in the manner prescribed by the Administrative Procedure Act.
Complaints by residents concerning the abuse of power by municipal em-
ployees are examined by the Seimas Ombudsmen; their powers are set forth in
the Act on the Seimas Ombudsmen. The Ombudsman’s notes are recommenda-
tions: the Ombudsman does not have authorization to punish; instead, his func-
tion is to draw the attention of the appropriate State institutions so that, when
performing their judicial duties, they will apply the necessary means to im-
prove «good» administration. Having received the Ombudsman’s recommen-
dations, the municipality takes them into consideration to correct the mistake,
to penalize the offending official, etc.
The main regulations of local self-government are stated in Art. 10 of the

Constitution («Local Self-Government and Governance»), in which the legal
principles protecting local self-government are consolidated. Art. 120 of the
Constitution states that municipalities act in an autonomous way, according to
their competences as established by the Constitution and the laws. According to
Art. 122, municipal councils possess the right to appeal to the courts in cases of
violation of their rights. However, this right is not appropriately recognized in
practice. In cases in which one of the disputing parties is the central Govern-
ment, administrative courts usually refuse to endorse the municipal councils’
requests because, according to part 2 of Art. 16 of the Administrative Courts
Procedure Act, administrative courts are not empowered to investigate the cen-
tral Government’s activity. Although there has been some discussion of this
point, thus far this chapter has not been amended.
The Local Self-Government Act, in which the legal guarantees of local self-
government are determined, regulates this legal protection more precisely, en-
suring that municipalities’ rights cannot be limited or violated, except in the
cases that are explicitly foreseen in this rule. Art. 40 of this statute provides that
municipalities may appeal to the courts in cases of serious violation of their
rights. Municipal bodies act in their name according to the authority delegated
to them by this and other laws. All decisions of the municipal council that do
not exceed the competence of these institutions are binding for the municipal
administration, for all organisations, institutions and companies located within
407
the municipal territory, and for all the local residents. The bodies of the State
administration are forbidden to limit the authority of local authorities, except in
the cases foreseen by law. The decisions of the municipal council regarding lo-
cal taxes, as well as the regulations approved by the council, are enforced
throughout the municipality, and all organisations, institutions, firms, citizens
and physical or legal persons in the municipal territory are obliged to respect
them. Municipalities have the right to take all measures to ensure that the gen-
eral territorial plan and all other subordinated planning instruments are fully
implemented. They have also the right, either independently or through the As-
sociation of Lithuanian Municipalities, to take part in proposing legislation on
different aspects of local self-government.
In the Committee of the Regions, Lithuania is represented by nine members

and nine alternates, of which five and four, respectively, are mayors. They
come from diverse Lithuanian municipalities and represent different political
parties. The establishment of the Committee of the Regions provided opportu-
nities for direct representation of the interests of regions and local governments
in the E.U. decision-making process. The members of the Committee of the
Regions are attempting to demonstrate to other E.U. institutions the impact of
European legislation upon various regions and municipalities and upon their
citizens, as well as to present suggestions for the solution of problems.
The main criteria that member states consider when nominating their repre-
sentatives are geographic/territorial and political in nature. The criterion of
equal gender representation is becoming increasingly important, as recognized
by a growing number of member states. When appointing national candidates
to the Committee of the Regions, the Government of the Republic of Lithuania
consults the Association of Lithuanian Municipalities.
At the request of the Ministry of the Interior, the Association of Lithuanian
Municipalities selects a certain number of candidates from the slate presented,
suggesting the candidacy of a chairperson of the delegation, and returns the list
to the Ministry of the Interior. The latter, having coordinated the list of candi-
dates with the Ministry of Foreign Affairs, presents it to the central Govern-
ment. In fact, representatives are generally appointed by agreement between the
Association of Lithuanian Municipalities and the Ministry of the Interior.
Before Lithuania’s accession to the E.U., its municipalities found other
ways to form part of the process of E.U. policy-making, i.e., through informal
channels, usually through the officials in Brussels. Therefore, the majority of
member States’ lobbying organisations, municipalities, associations and major
cities have their offices in Brussels. People working in these offices cooperate
closely with the employees of the departments of their respective spheres. In
408
this way, countries that do not have influence at the primary stage of decision-
making have considerable impact. In its effort to represent properly the inter-
ests of self-government during Lithuanian integration into the E.U., and in hop-
ing to influence as soon as possible all decisions important to local
self-government in the institutions of the European Union and the Republic of
Lithuania, the Association of Lithuanian Municipalities had (and still has) a
permanent representation in Brussels. This presence provides an opportunity to
inform the municipalities quickly and «from the inside» on E.U. development
plans and their consequences upon Lithuanian self-government; it also allows
them to influence decisions made in E.U. institutions in the spheres that will be
important to local self-government. This allows developing relationships with
the Committee of the Regions, strengthening relationships with various interna-
tional organisations and to coordinating actions with other organisations that
represent local self-government in other E.U. countries.
On the other hand, local government participates actively in the implemen-
tation of the projects of E.U. structural funds, the beneficiaries of which are the
residents of municipalities. The municipalities prepare and present the projects;
when these are approved, the Ministry of Finance distributes the E.U. funds.
For instance, for 2007-2013, it is foreseen to implement a total of 174 projects
on self-government transport, which will be provided with 428 million Litas
(approximately 124 million € (1.00 EUR = 3.45 LTL)) of E.U. support. Funds
for the projects of regional transport infrastructure are distributed equally ac-
cording to certain criteria, e.g., total miles comprising a region’s road network,
the number of registered transport vehicles, etc.
12.1. Constitutional Court case-law on local government

– Ruling of 18 February 1998, on the compliance of the Law on the Amend-
ment and Supplementation of the Law on the Governing of the County,
with the Constitution of the Republic of Lithuania.
– Ruling of 7 January 2000, on the compliance of Part 2 of Article 6 of the
Republic of Lithuania Meetings Law with the Constitution of the Republic
of Lithuania.
– Ruling of 28 June 2001, on the compliance of some amendments of the
Law on the Territorial Administrative Units of the Republic of Lithuania
with the Constitution.
– Ruling of 24 December 2002, on the compliance of some provisions of the
Law on Local Self-government with the Constitution of the Republic of
Lithuania.
– Ruling of 30 May 2003, on the compliance of paragraph 2 of Article 4 of
the Law on the Supplement and Amendment of Articles 86 and 87 of the
409
Law on the Elections to Municipal Councils with the Constitution of the

Republic of Lithuania, and on the compliance of the Government Resolu-
tion no. 457 («On the Dismissal of the Chief of Vilnius County» of 11
April 2003) with the Constitution of the Republic of Lithuania.
– Case No 23/2003, on the compliance of the Republic of Lithuania Law on
the Supplement and Amendment of Articles 86 and 87 of the Law on Elec-
tions to Municipal Councils and its supplement with Article 88-1 with the
Constitution of the Republic of Lithuania, Vilnius, 19 January 2005
– Case No. 06/07: ruling of 9 February 2007, on the compliance of paragraph
1 of Article 34 (wording of 21 December 2006) of the Law on Elections to
Municipal Councils with the Constitution of the Republic of Lithuania.
Andriulis, V. & Maksimaitis M.: Lietuvos teisės istorija. Vilnius: Justitia, 2002.
Jankauskas, K.: Teritorinių bendruomenių savivalda Lietuvoje: konstituciniai
imperatyvai ir jų įgyvendinimas ordinarinėje teisėje // Lietuvos konstitucinė
teisė: raida, institucijos, teisių apsauga, savivalda. Vilnius: Mykolo Romer-
io universitetas, 2007.
Lietuvos teisės pagrindai, Vilnius: Justicia, 2004.
Mačiulytė, J. & Ragauskas, P.: Lietuvos savivalda: savarankiškos visuomenės
link? Vilnius: Versus aureus, 2007.
Savivaldos institucijų socialinis politinis veiksmingumas. Vilnius: Mykolo
Romerio universitetas, 2006.
Association of Local Authorities of Lithuania: http://www.lsa.lt

Ministry of the Interior of the Republic of Lithuania: http://www.vrm.lt
Municipalities of Lithuania: http://www.savivaldybes.lt
Centre of Municipal Training: http://www.savivalda.lt
Civil Service Department, Ministry of Interior of the Republic of Lithuania:
http://www.vtd.lt
Parliament of the Republic of Lithuania: http://www.lrs.lt
Communities of Lithuania: http://www.bendruomenes.lt
Vilnius City Municipality: http://www.vilnius.lt
Constitutional Court of the Republic of Lithuania: http://www.lrkt.lt
410
Chapter 17:
LOCAL GOVERNMENT IN LUXEMBOURG*
Jean-Mathias GOERENS
The origins of the current municipalities in the Grand Duchy of Luxem-

bourg go back to the beginning of the XIXth century, with the exception of the
old Charters (chartes d’affranchissement), which date from the Ancien Régime
(XVIIIth century). The basic current legislation on the municipalities is essen-
tially the Local Government Act (hereinafter, «the Municipal Act») of October
12th, 1988, which replaced the previous law of 1843.
The Grand Duchy of Luxembourg does not have intermediate political
structures between the State and the municipalities, such as regions or prov-
inces. The territory, it is true, is subdivided into three administrative districts
and twelve cantons, but the latter entities do not include elected political struc-
tures, and are just territorial subdivisions with administrative functions.
Most of the municipalities still keep their current shape and extension since
the beginning of the 19th century. However, since the 70s of the last century,
and as a result of different governmental impulses, a process of fusions or
mergers of municipalities have taken place in the country, the rhythm of which
has increased over the years.
The main current political discussion turns around the project of municipal merg-
ers, mentioned above. Other hot political issues in the domain of local government
are: (a) The policy on drinking water, in the context of the applicable European di-
rectives; (b) the reform of the emergencies services, which currently is a competence
shared between the State and the municipal sector; and (c) the financial situation of
the municipalities. Apart from that, a general discussion on the optimal distribution
of tasks between the State and the Municipalities, in the interest of an optimization
of the management of the res publica, is also currently taking place in the country.
*
Translation from the original manuscript in French by Angel-Manuel Moreno.
411
jean-mathias goerens
As said above, the only true local authorities in Luxembourg are the mu-
nicipalities (Municipalités in French, Gemeng in Luxembourg language).1
Therefore, the Grand Duchy of Luxembourg does not have intermediate politi-
cal structures, such as provinces or regions. The municipalities are thus the only
territorial structures next to the State.
Following a process of municipal merging that has taken place during the
last decades, the number of the municipalities has been reduced from 126 to
106. Spread over a national territory of 2.587 km2, Luxembourg municipalities
are, in average, of very limited extension, and their population varies from
about 300 to 100,000 inhabitants (in the case of the City of Luxembourg). The
effort of merging municipalities, that has been encouraged by the Government,
tends to attain the objective of having no more than thirty municipalities, with
an average population remaining around 3.000 inhabitants, as this figure should
meet a criterion of critical mass which allows an optimal management of the
local community.
The structure of municipalities includes the city council (Gemengerot),
which is a deliberative body, and the executive body, represented by the «col-
legiate body» or board of the mayor and the aldermen (Schefferot), although
certain attributions belong exclusively to the mayor (Buergermeeschter).
The members of the municipal council are elected by universal ballot for
a term of 6 years. The Mayor and the aldermen are appointed among the
elected members: the mayor is formally appointed by the Grand Duke, and
the aldermen are formally appointed by the Home Secretary, on request of the
majority of the elected representatives. Both the mayor and the aldermen are
responsible in front of the council, that is, the elected assembly (see below,
point 5).
The municipalities are equal in rights and competences. The name of
«Ville» («city»), which is used by some municipalities, is purely honorary and
does not confer any special status. At present, out of 111 municipalities, 12
carry the title of «city» (ville). The «cities» (villes) do not benefit from a re-
gime different from simple «municipalities», with the only exception that the
city of Luxembourg (the capital of the country) has a direct communication
with the Ministry of the Interior, and does not need to go to the Police Com-
missioner of the district, as the rest of municipalities do. Moreover, the city of
Luxembourg, as the capital of the country, enjoys a special financial endow-
ment granted by the State.
1
The reform of 1988 did not modify this aspect.
412
local government in luxembourg
The Constitution of Luxemburg, of October 17th, 1868, as amended, in-

cludes a chapter specifically devoted to the municipalities, whose political and
financial autonomy is recognised. Section 107, included in Chapter IX of the
constitution, states that: «(1) the municipalities constitute autonomous commu-
nities, having a territorial basis. They possess legal personality and they man-
age their patrimony and their own interest by means of their own organs».
The provisions of the Constitution have been implemented by the Municipal
Act (Loi Municipale) of October 12th, 1988 and, in special domains by particu-
lar statutes, for example the law of July 19th, 2004, concerning land use and
urban development.
On the other hand, the Luxembourg signed without reservations the European
Charter of Local self-government, from its opening for the signature in 1985.
The legal ratification took place on 18 March 1987. The Charter, from its ratifi-
cation, is considered to be a part of the internal legal order of the country. Being
an international Treaty, it enjoys an authority that is superior to that of the do-
mestic law (see, infra, point 10). It can be directly invoked against the Govern-
ment and in courts, and the case law gives the Charter a «self-executing» effect.

AUTHORITIES
4.1. Obligatory duties and responsibilities of local government
Those affairs which are considered to be of purely «local» or municipal

nature were particularly defined by two decrees during the French Revolution,
namely the decree of December 14th, 1789, concerning the constitution of mu-
nicipalities and the decree of August 16-24th, 1790, on the judicial organization
of the Grand Duchy, which remains largely in force.
Thus, articles 49 and 50 of the Decree of December 14th, 1789, concerning
the constitution of municipalities establish that:
Art 49. «The municipal bodies will perform two sorts of functions; on the
one hand, those who are proper to the municipal power. On the other hand,
those who relate to the general administration of the State, and which are del-
egated by the State to municipalities».
Art 50. «The functions that are proper to the municipal power, under the
surveillance and the inspection of the administrative assemblies, are: to govern
the properties and the common income of cities, villages, parishes and com-
munities; to settle the local expenses that must be paid by the common monies;
to make the inhabitants enjoying of the advantages of a good police, especially
413
for what concerns property, health, security and the quietness in streets and
public places and buildings».
On the other hand, Chapter XI of the decree of August 16-24th, 1790, on the
judicial organization, at section 3, provides that the goals entrusted to the mu-
nicipal bodies are:
1. All tasks relating to the safety and the convenience of transit in streets,
places and public roads; the cleaning, the lighting, the collection of gar-
bage, the demolition or the repair of the buildings threatened by collapse;
the banning of everything risking to fall from windows or other parts of
buildings, or which can hurt or damage the passers-by, or cause harmful
exhalations;
2. Punishing the offences against the public tranquillity. Preserving the
peace and the public order in open spaces where people gathers, such as
fairs, markets, festivities and public ceremonies, entertainments, games,
coffees, churches and other public places;
3. The inspection of the regularity of foodstuffs which are sold, as to their
weight, measures; and the healthiness of the food offered for public sale;
4. Warning, by the suitable precautions, and fighting against accidents and
disastrous plagues, such as fires, epidemics and epizootic diseases: to
survey and avoid fights and quarrels accompanied with riots in the streets,
tumults incited in the places of public assembly, and excessive noise and
night-assemblies which disturb the rest of the citizens;
5. The care of preventing or remedying annoying events, as well as the
damages caused by harmful or wild animals.
These extremely old decrees confer on the municipalities their compulsory
original missions, namely to manage their territory and their patrimony by
means of their own human and financial resources, and to regulate the commu-
nity life of their citizens in the essential domains that are the hygiene, the secu-
rity and peace. The «original» missions of municipalities, as anchored in the
decrees of the French Revolution, were specified and deepened over time.
On the other hand, the national Constitution entrusts directly certain mis-
sions to the municipalities: the management of their territory and their heritage
(article 107), the regulatory power (article 107), the power to establish munici-
pal taxes (article 107), the registry office, on the civil status (article 108), the
organization of the primary education (articles 23 and 107), and so forth.
Several pieces of legislation have concretized, at different times, the origi-
nal missions of municipalities, and have entrusted them with new responsibili-
ties, either on an exclusive basis, or as functions shared with the State. The most
important of the compulsory missions of municipalities are the following ones:
– Town and country planning, housing and economic development
– Regulatory power and the police
414
– Water and purification

– Waste management
– Public road network, waste collection and traffic regulation
– Primary and pre-school education
– Environment
– Registry office (Civil status)
– Welfare services. Burials
– Fire brigade.2
Apart from the traditional tasks discharged by municipalities, such as the
registry office (civil status) and primary education, social services and civil
homes, municipalities enjoy, as far as their budgetary means do allow it, a wide
autonomy to set up and to manage services which they deem appropriate (cul-
tural, social, sports installations), in all domains that are considered to be of a
«municipal interest». This is recognised by section 107 of the National Consti-
tution and by article 28 of the Municipal Act.
4.2. Optional, voluntary tasks
The «optional» missions of the municipalities are services that the municipali-
ties freely chose to offer to their inhabitants without being obliged to that by the
legislation. These services are useful or pleasant to the population, but not indis-
pensable. The more or less big offer of «additional» services of this kind by a
given municipality depends naturally on the financial resources of the local gov-
ernment, provided that it has first fulfilled appropriately its compulsory missions.
Let us remind that the constitutional legislator, by establishing that the mu-
nicipalities form autonomous communities that manage their assets and their
appropriate interests, has entrusted these local bodies ( autonomous vis à vis the
central power), with the management of all the local interests. For that purpose,
the Constitution has recognized them the power to create the public utilities that
they consider necessary. The Constitution, by planning a supervision of the
municipal management by a superior authority, wanted to ensure the respect of
the Law and the protection of the general interest against the harmful slowness,
the excesses and the encroachments of of local bodies.
A non-exhaustive enumeration of these optional tasks would include, at
least, the following ones:
– musical education
2
The Municipal Act obliges the municipalities to have, each to her or to some a brigade of
fire and rescue. With the exception of the City of Luxembourg, which has a professional service,
the fire brigade is assured by volunteers’ bodies organized by and in a national federation.
415
– sport
– tourism infrastructures
– public transportation: public transportation is organized, in the munici-
palities of the South of the country, by an association of communes. In
other municipalities, public transportation is ensured by their own means.
The city of Luxembourg, where transports are organized by the municipal
service of buses, the service is ensure by contracting private firms.
– infrastructures for child care
– infrastructures in favour of the youth and for the elderly
– cultural infrastructures such as theatres, museums, cultural centres, etc.
As far as their budgetary possibilities do allow it, the municipalities, beyond
their compulsory missions, can thus implement specific policies, according to
their appreciation of opportunity.
The practical importance of these «optional services» is considerable, be-
cause, by means of these additional missions, the political choices and the ini-
tiatives of the local bodies can be duly implemented. Among the possible
choices of optional services to be offered, the municipalities are often guided
by the policies of the State, which has a more or less big financial participation
in the required investment in various services. This State policy is usually de-
termined in a legal framework, which defines the conditions and the forms of
granting the subsidies.
4.3. The implementation of local government policies
In order to allow municipalities to achieve their missions (either compulsory

or optional) the legislators have provided them with certain means. On the one
hand, municipalities can carry out their competences with their own resources
and structures (in French, régie directe). On the other hand, the law allows dif-
ferent types of collaboration among local bodies to bring about certain tasks in
a successful and satisfactory way. Indeed, due to their small size, a large number
of Luxemburg municipalities would be unable to meet all the needs and the
wishes of their population if they acted in an isolated way. On the contrary,
many local projects are perfectly practicable if several local governments get
together in the implementation of the service.
For the execution of their tasks, municipalities may engage their own staff
(state employees, employees, workers), who ensure the municipal services. Be-
sides, the municipalities are free to organize the functioning of their own ad-
ministrative structures and to decide the manner how they are going to dis-
charge their duties and responsibilities. To satisfy this goal, the municipal
council may create the necessary positions for civil servants and for contractual
employees.
416
However, many works cannot be duly executed by local bodies only with
the help of the municipal staff, in particular construction projects, due to their
scale and their technical specificity. This is why municipalities consider prefer-
able to ensure the provision of certain local services by making a contract with
a specialized firm. In order for a municipality to have recourse to the private
sector for the execution of certain missions, the law requires a regime of public
procurement, (marchés publics, in French) with public notices and open calls
and competitive procedures (appel d’offres).
Finally, it is advisable to mention in the present context that certain munici-
pal missions are taken care by public bodies (called établissement publics in
French), which are placed under the supervision of the municipalities. These
municipal bodies are municipal services, endowed by the law with the legal
personality and enjoying certain autonomy, under the supervision of the mu-
nicipalities and with the administrative supervision (tutelle) of the central Gov-
ernment. Examples of such municipal public bodies are the offices of social
services, the old welfare offices and the civil hospitals.
Therefore, the law offers different possibilities to municipalities in order to
execute their missions. They can choose to provide a given service: (a) with
their own means and resources; (b) by having recourse to the private sector and
signing a contract with a firm; (c) in association with the State; (d) in associa-
tion with one or several other municipalities; (e) by establishing specific public
entities. It is up to the municipal authorities to decide, for every mission en-
trusted to them, which is the most suitable manner or technique to execute it.
The Act of February 23rd, 2001, concerning the associations of municipali-
ties, allows municipalities to join in the form of an association of municipalities
(in French, syndicat de communes), with the aim of carrying out works or serv-
ices of municipal interest. The Act sets in detail the functioning of these associa-
tions of municipalities, and specifies the conditions required to create such an
association, those required to adhere to an existing association and those require-
ments to withdraw from an association. The Act also regulates the procedure for
dissolving an existing association. These associations have the legal nature of
public bodies, vested with legal personality. At the moment, the number of as-
sociations of municipalities rises to approximately 70 in the whole country.
Other forms of collaborative schemes are governed by specific laws and
regulations. Thus:
(a) Article 25 of the law of May 21st, 1999, on town and country planning,
establishes that, within a given region, several municipalities can decide
to create regional associations of communes, having the mission to en-
sure the follow-up of the regional main plans, and to participate in their
implementation.
(b) The law of August 10th, 1993, on natural reserves, authorizes the State
and the affected municipalities to establish specific associations for the
417
development and the management of a natural reserve. This State-local

association is administered by a committee, which includes representa-
tives of ministries and the interested administrations, as well as dele-
gates of the municipalities affected by the natural reserve.
4.4. Industrial and economic activities
Article 173-ter, of the Municipal Act, modified on December 13th, 1988,

allows the municipalities and the associations thereof (without prejudice of the
legislation on procurement contracts) to make agreements with individuals and
persons of public or private law in matters of municipal interest. These agree-
ments (conventions, in French) are subject to the approval of the Home secre-
tary if their value exceeds 100,000 €.
The general concept of «agreement» may include a wide array of arrange-
ments, and may affect almost every aspect of the municipal activity: conces-
sions, any forms of contracts of management, the subcontracting, etc. Luxem-
bourg legislation does not regulate in a detailed manner these forms of
contracts. Accordingly, municipalities can conclude freely any sort of con-
tracts, provided that they are not in contradiction with the law or with the
general interest.
It is important to note that municipalities often tend to grant substantial sub-
sidies to cultural, sports or other private associations that exercise certain ac-
tivities on their territory in the interest of the population. To guarantee that
these subsidies are actually spent for the purpose for which they were granted,
the municipality should rather conclude with the affected association an agree-
ment, setting the conditions and the forms of allowing the subsidy.
On the other hand, article 173bis of the Municipal Act, as modified on De-
cember 13th, 1988, allows the municipalities and their associations to take fi-
nancial participations in private-law companies, with the aim of reaching a
work or a service of municipal interest. The municipalities can make a financial
commitment, limited to a specific sum of money. The acquisition of holdings is
authorized by an order of the Grand-Duke, which determines the applicable
forms and conditions.
However, it must be remembered that the local power is not placed on an
equal footing with the powers of the State. Although local government has
certainly a constitutional origin, it consists of a subordinate power, in the
sense that it is a creation of the Law and in the sense that it exists only in the
limits that the Law determines. Moreover, the interests entrusted to the mu-
nicipal authorities may concern only the purely local circle, with the exception
of those who are of national interest and those who are satisfied by the private
sector. According to Robert Wilkin, an authoritative Belgian scholar in classic
municipal Law, the local interest «includes what is necessary, useful and
418
pleasant to the municipal community. It is a de facto notion which evolves in

time and space»3.
Therefore, the economic activities carried out by municipalities are limited
to what is supposed to be of «municipal interest». In this sense, it is useful to
cite here an interesting case, where the Home secretary refused to approve a
municipal decision concerning the involvement of a municipality in a private-
law structure for the exploitation of windmills. The Administrative Court ruled
that: «… The argument brought by the Minister must be considered to be legal,
both in form and in substance. It is up to the Minister to weigh the value of the
public and private interests, as well as the national and municipal interests
involved in any case, and to make its decision accordingly»4.
5.1. The representative body
The City Council is the deliberative body of the municipality and finds its
legal basis in article 107 of the Constitution, which states that in every munici-
pality there is a city council, elected directly by the inhabitants of the munici-
pality. The conditions to be a voter or to run for office are settled by the law. On
the other hand, the law establishes the composition, the organization and the
attributions of the different organs of the municipality. The constitutional pro-
visions have been supplemented by the Municipal Act and by the Electoral law
of February 18th, 2003.
The Act, with regard to the numbers of the inhabitants, determines the
number of city council members (councillors). This number fluctuates between
7 (for the municipalities of less than 1.000 inhabitants) and 27 members (for the
City of Luxembourg). The term of office is 6 years. The elections are based on
a universal suffrage of the voters. The Luxembourg and EU-nationals (if they
do request so) have the right to vote and are eligible, if they are older than 18,
if they enjoy civil and political rights and they are permanent residents.
Non-Luxembourg nationals living in the Luxembourg have been, since the
90’, eligible to the municipal councils, but they could not discharge the offices
of mayor or alderman. The law of February 13th, 2011, which applied for the
first time during the municipal elections held on October 9th of that year, elim-
inated these limitations. Consequently, foreign nationals, no matter if they have
the nationality of a country of the European Union or not, are now eligible if
they have lived at least for 5 years in the Luxembourg. The new law does not
include anymore special arrangements for foreigners as regards their eligibility
3
R. Wilkin: Commentaire de la loi communale, Bruylant, Brussels, 1947.
4
Administrative Court, Ruling number 13407, of December 13th, 2001.
419
for the offices of members of the municipal executive, so that they have access
in the same way as Luxembourgers.
The elections follow the majority system in the municipalities having less
than 3.000 inhabitants and the proportional system in municipalities having
3.000 inhabitants at least. As in the majority system, the candidates that are
elected are those who, on every list, obtain more votes.
The Municipal Act (Loi Municipale) of 1988, as regards the functions of the
organs of the municipality, includes a set of powers and competences, and
makes a distinction between the tasks of the city council (which is the delibera-
tive organ) and the tasks of the collegiate body of the mayor and the aldermen,
which is the executive organ par excellence. The competences of the city coun-
cil are determined by the Constitution and by the Municipal Act, to which it is
advisable to add the relevant provisions of the European Charter of Local Self-
Government.
The Constitution, still at article 107, provides that the council establishes
annually the budget of the municipality and approves the accounts. It makes the
municipal regulations except in the case of emergencies. It can establish mu-
nicipal taxes, under the approval of the Grand duke. As for the competences of
the city council, they are enumerated in the Municipal Act as follows:
Art 28: The city council settles all maters that are of municipal interest; it
deliberates or expresses its opinion whenever its deliberations or opinions are
required by laws and regulations, or asked by the superior authority. The de-
liberations of the council are preceded by a public information, whenever this
is established by the laws and regulations, or whenever the council sees it ap-
propriate.
Art 29: The Council enacts municipal regulations and by-laws (…)
Concerning the internal organization of the Municipal Council, article 14 of
the Municipal Act states that «the city council approves its internal by-laws,
which establish how it performs its duties and activities, with due respect to the
Law». Article 15 of the same statute determines that «the city council may set
up advisory committees, whose composition, functioning and competences will
be determined by an internal by-law».
The Municipal Act further specifies the attributions of the city council by
establishing that:
(a) The city council decides all which is of municipal interest; the delibera-
tions of the Council are preceded by an information when it is prescribed
by laws and regulations as well as all the times when the city council the
considers it necessary (art. 28)
(b) the council approves the municipal by-laws and regulations, which must
be communicated to the Home Secretary (at. 29)
420
(c) The city council proceeds under the approval of Home secretary to the
creation of any municipal staff position…it appoints and dismisses the
employees of the municipality under the approval of home secretary
(art. 30).
5.2. The executive body
The executive organisation (l’exécutif) at the municipal level is formed by

the collegiate body (collège), composed by the mayor (bourgmestre) and some
aldermen (échevins). In certain matters (like the enforcement of laws and regu-
lations on police), the executive is formed by the mayor only. The mayor is also
a registrar, a function that may be delegated.
Article 107 of the Constitution states that the municipality is administered
under the authority of the collegiate body, formed by the mayor and a number
of aldermen. Its members must be chosen among the members of the local
council.
According to the Municipal Act, the members of the executive body are not
strictly speaking «elected», but appointed: the mayors and the aldermen of the
municipalities carrying the title of «city» are appointed by the Grand – Duke,
and the aldermen of the other municipalities are appointed by the Home Secre-
tary. The number of the aldermen is two as a rule, but this figure increases ac-
cording to the number of councillors, thus to the municipal population.
The procedure for the appointment of the city councillors was for a long
time rooted in tradition, but the new legal framework, as amended on 13 Febru-
ary 2011, has established a formal procedure: the appointments to the collegiate
body will be performed by the Grand-Duke (for what concerns mayors), and by
the Home Secretary (for what concerns aldermen), on a proposal from the
council. In fact, then, the nomination depends on the political majority in each
council. The mayor and the aldermen are political officers, depend on the po-
litical majorities and remain responsible towards the council during their terms.
As a rule, the term of office of the executive body coincides with that of the
city council. However, to guarantee the trust of the council during the overall
term of office, the law sets the possibility of the motion of censorship (motion
de censure). This motion must take place whenever the vote of the municipal
budget, proposed by the ruling majority, is refused by the council. The motion
must then be proposed and adopted by the majority of the council members. If
it is successful, the members of the collegiate body must resign. During their
term of office, the members of the collegiate body keep their capacity of coun-
cillors and participate in the decisions and voting procedures of the council.
The board of the mayor and the aldermen has as its main task the general
management of the municipality, the execution of the budget and the approval
421
of municipal regulations and by-laws. Moreover, the collegiate body is the hi-
erarchical leader of the municipal staff. Its powers and competencies are speci-
fied by the Municipal Act and by other pieces of sectoral legislation. Thus, ac-
cording to article 57 of the Municipal Act, the «collegiate body» of the mayor
and the aldermen is in charge of the following duties:
1. the execution of the laws, regulations and orders of the Grand- Duchy
and the Ministers, as far as they do not concern the police;
2. the publication and execution of the resolutions of the city council;
3. the preparation of the affairs to be submitted to the city council as well as
the establishment of the agenda of the council meetings;
4. the administration of municipal establishments and the control of public
institutions placed under the supervision of the municipality;
5. the supervision of municipal services;
6. the management of municipal works;
7. the administration of municipal properties of the municipality as well as
the preservation of its rights;
8. the appointment of municipal workers under the approval of home secre-
tary,
9. the conservation of archives and of the civil status registry.
The institutional figure of the Mayor deservers a special attention. He has
special attributions except those who correspond to him as a member of the col-
legiate body. The Municipal Act, at different sections, provides that the Mayor
holds the following responsibilities. Thus, the mayor:
(a) Is in charge of the execution of the laws and regulations of police under
the supervision of the police commissioner of district. He can delegate
his powers in all or in part, to one of the aldermen.
(b) Performs the functions of registrar; he is particularly in charge of en-
forcing all affairs concerning the register of the civil status (art. 69).
(c) Takes care of the public order in spectacles and entertainments, and can,
in extraordinary circumstances, forbid any show or event, to ensure the
public maintenance of law, order and rest (art. 71).
(d) Signs the regulations and orders issued by the city council and by the
collegiate body (art. 74).
As said above, inter-municipal cooperation has a long tradition in Luxem-

bourg. As soon as in 1900, an Act of Parliament, now replaced by the law of
February 23rd, 2001, regulated the associations of municipalities, and envisaged
the constitution of associations of municipalities (Gemengesyndicat). At present,
422
these organizations for inter-municipal cooperation are numerous, and work in

domains of the most varied sort, such as drinking water and purge, transport the
municipal schools, cultural facilities, sport and leisure, and so forth.
On the other hand, the official representation of the municipalities of the
country has been organised in the same manner as an association of local au-
thorities, namely the Association of Cities and Towns of Luxembourg. This
representative body embraces all the municipalities of the country and acts as a
political interlocutor whenever the general interest of the municipalities is in
question.
The associations of municipalities do constitute legal entities, with a distinct
personality from the associated local government units. They have their own
patrimony and may have access to the market of loans and credit, under certain
conditions. The internal organisation of inter-municipal associations is inspired
on that of the municipalities: as a deliberative organ, they usually have a «com-
mittee», which includes the delegates of the associated municipalities. They also
have an executive board, with missions corresponding to those of the collegiate
body of the mayor and the aldermen in the municipalities, presented supra.
6. HUMAN RESOURCES
In Luxembourg, the personnel of municipalities are regulated by two differ-

ent legal schemes: the regime of civil service (fonctionnaires) and the regime
of contractual employees. However, the positions of secretary, comptroller, and
accountancy manager must be necessarily occupied by civil servants. Other
staff positions may be occupied by employees under a statutory or a private
legal regime, if the municipality so decides. In fact, employees belonging to the
different groups and divisions of the civil service fill the staff positions that
have specific responsibilities and seniority. These employees are directly re-
cruited by the municipalities among the candidates who, besides their qualifica-
tion (determined by the laws) must also succeed in an examination of eligibility
organized by the Home Department.
The Municipal Act establishes that in every municipality, civil servants
must fill the positions of at least that of secretary and the comptroller. On the
other hand, all municipalities of a certain scale (10,000 inhabitants) must have
a technical service. The said legal rule also provides that municipalities must
have a service of fire extinction and emergency, staffed with professional em-
ployees or filled with volunteers. They can also hire rural policemen and mu-
nicipal officers, the latter being invested with certain special attributions, like
the control of parking.
Next to these traditional and statutory staff positions, municipalities are free
to create the staff positions that they consider suitable for a better discharge of
their duties and responsibilities, either obligatory or voluntary. The creation of
423
such positions must respect the rules and regulations established by the na-
tional law on the civil service. It is however possible for municipalities to create
specific staff positions for particular tasks, for which they can define the condi-
tions of access and career development. It should be underlined that, in interest
of the control of the legality, the creation of staff positions and the appointment
of local employees by municipal bodies must receive the approval by Home
secretary (Ministre de l’Intérieur).
The Municipal Act deals with the financial management of the municipali-
ties at several provisions (namely arts. 116, 118, 119 and 124).5
As mentioned above, municipalities have powers to establish taxes, charges
and local royalties, under a final approval by a grand-duchy order. On the other
hand, municipalities participate in the income of certain State taxes and benefit
from particular subsidies for specific activities and projects.
Described roughly, one third of the financial resources of municipalities
come from their «own income», that is, local taxes (like the real estate tax or the
commercial tax)6, charges and fees. Municipalities are also entitled to receive a
certain amount in the tax collection of some State taxes (added value tax, auto-
mobile tax, etc), which is managed by means of a special fund. Finally, local
bodies receive subsidies and transfers from the State, for the realization of par-
ticular projects. Consequently, it can be said that most of the local authority’s
income are not «ear-marked», that is, they are not strictly allocated to specific
purposes. Therefore, local bodies have discretion and freedom to spend their
monies, as long as they exceed the overall costs of the obligatory services.
As regards State subsidies, the central agencies intend to encourage invest-
ments in certain infrastructures such as social, cultural or sport facilities. Sub-
sidies may vary as the projects have a local, regional or national scale.
With the aim of ensuring a proper balance between the financial potential of
the several municipalities (a potential that might be very variable, in particular
because of the fluctuations in the resources resulting from the commercial tax),
the law has established a system of financial adjustment or «equalization»
5
The local authority establishes an annual budget, including all the incomes and expenses to
be made during the financial year for which it is voted (Art 116). The municipal administration
can have access to loans, in order to finance extraordinary expenses (art. 118). The expenses are
divided into compulsory and non-compulsory ones (Art 119). The home secretary may correct
the local authority budget, if it is not in accordance with the law, without prejudice of a judicial
appeal on the part of the municipality (art. 124).
6
This tax is established by the state, but the actual tax amount is determined by each mu-
nicipality.
424
among municipalities. The system is funded by the municipalities, and it en-

sures the redistribution of income. In the calculation of the funding and the ac-
tual allocation of funds, the system takes into consideration different criteria,
such as the population of the different contributing municipalities and its den-
sity, as well as the importance of green areas and other objective elements.
As far as the tasks assumed by the municipalities go beyond their financial
capacities, or stand beyond their organization and resources, the inter-munici-
pal cooperation (in the form of associations of communes or simple agreements
or conventions), allows for the realization of such tasks. In principle, the asso-
ciations of municipalities do have access to loans and the credit market. They
can also establish taxes and charges in different matters, like the prices of drink-
ing water, depuration of residual waters, public transportation, and the like.
According to the Constitution, local authorities do manage an appropriate

patrimony, so they are entitled, under the Law, to have real estate and personal
property. As in other European countries, municipal property may be divided
between «public domain» (domaine public), which cannot be sold or conveyed
whatsoever, and the «private domain» (domaine privé), whose management is
regulated by the civil law. Among the goods integrating the public domain, it is
possible to include the institutional functional infrastructures, such as the City
Hall, the schools, road infrastructures and all the properties whose status of
public domain has been recognized by the local council. Other properties, in-
tended essentially for the discharge of the optional missions of the city, belong
to the private domain: transport equipment, social housing, etc.
It is important to stress that there is no special organic legislation on the
municipal property. The principle that municipalities may hold property of
their own is enshrined in the Constitution (section 107), which states (see su-
pra), that municipalities «…constitute autonomous communities, that have a
territorial basis, possess legal personality and manage their assets and their own
interests».
The Municipal Act refers to some aspects of the management of municipal
assets, in the chapter dealing with the administrative supervision (tutelle) of
local bodies. It establishes that some municipal decisions on assets and prop-
erties must receive the approval of the State authorities (art. 106): the acquisi-
tion and divestiture of property, guaranteeing loans with municipal property;
the division, leases and rentals on such properties, etc. These measures are
applicable in the same way to the associations of municipalities and to the
public bodies placed under the supervision of those local authorities (étab-
lissements publics), especially in the domain of social, welfare services and
local hospitals.
425
Although municipal autonomy is a well-established legal principle in Lux-

embourg, the domestic legal system also knows some forms of control and su-
pervision of municipal activity, performed by the State authorities. This type of
control is commonly called tutelle administrative in French, and can only be
exercised in the cases that are strictly permitted by the Municipal Act or by
other pieces of sectoral legislation. However, even in those cases, municipali-
ties have the right to appealing to courts against the decisions of supervision
(tutelle) taken by «higher» authorities, as this supervision must be especially
motivated and justified.
Administrative supervision of municipal activity can take place, on the one
hand, when a local authority adopts a decision which is illegal, or when that
decision runs contrary to the general interest. In this case, State agencies have
the right to cancelling the local decision, and this cancellation is preceded by a
measure of suspension. In this sense, section 103 of the Municipal Act provides
that the Grand Duke can override (annuller, in French) the rules or individual
decisions of the municipal authorities that oppose the law or the general inter-
est. The order of cancellation must be motivated and must indicate the legal
grounds or the elements of general interest which are at stake, and that deserve
to be protected.
The exercise of this power by the Grand-Duke must respect some legal re-
quirements, both procedural and substantial, as established by Luxembourg
laws. This measure of the Executive power must be preceded by a discussion
within the Government (Gouvernment en Conseil) and finalized by a formal
decision signed by the Grand Duke. This decision has to be countersigned by a
responsible minister, in this case the Home Secretary. In the meaning of sec-
tions 103-108 of the Municipal Act, the local decisions that can be overridden
are those taken by the city council, by the collegiate body of the mayor and the
aldermen, by the mayor, by the comptroller and those taken by the organs of the
associations of municipalities and those public institutions that are placed under
the control of local authorities.
Moreover, some decisions of the local bodies, in order to have legal effects,
need the prior approval7 of the Grand Duke (in the way explained supra), the
Home Secretary, or the District Commissioner (commissaire de district) a key
7
Art. 105 and 106 of the Municipal Act enumerate the different types of local decisions that
are submitted to the approval of the Grand Duke. Among others, stand the following ones: (1)
the establishment, change or abolition of local taxes; (2) the acquisitions of buildings, if the
value exceeds 250,000 €; (3) some decisions dealing with the assets and the patrimony of the
local authority (alienations, exchanges, leases, sales, etc.); (4) prices and charges for several
local services, such as the provision of drinkable water, gas or electricity; (5) construction
projects, demolition of municipal buildings, if the value exceeds a given amount (currently
250,000 €).
426
official whose profile will be addressed later.8 In case of denial of the requested
approval, that decision must be motivated.
In all cases, the Municipal Act grants the local authority which is affected by
a measure of annulment, or by a refusal of approval of a decision, the right to
file a judicial appeal before the administrative courts (art. 107).
A form of directly binding supervision («tutelle») is represented by the pos-
sibility of appointing a special commissioner (commissaire spécial) in some
cases, when the local authority still wishes to keep its decision, in spite of the
annulment or the denial of approval from the Grand Duke. In those cases, the
special commissioner may be instructed by the central authorities to enforce the
administrative decision, at the expenses of the concerned local authority. This
type of measure, though, is extremely rare. Like the other decisions taken by the
central authorities in this field, the decision to appoint a «special commissioner»
may be appealed by the affected municipality in the administrative courts.
Still in the domain of administrative supervision («tutelle»), it is important
to describe summarily the office of the «district commissioner» (commissaire
du district) already mentioned earlier.
To begin with, it should be clarified that the Grand Duchy of Luxembourg
is divided into three districts, whose administrative centres are established in
the cities of Luxembourg, Diekirch and Grevenmacher. In every such district,
there is a civil servant, a state employee which is appointed by the Grand Duke
and which holds the title of «district commissioner» (commissaire du district).
Apart from the competences that are conferred on these officials by other
pieces of sectoral legislation, the Municipal Act declares that they hold the fol-
lowing ones:
1°. They watch over the execution of the general and municipal laws and
regulations and report to the superior authority the cases of legal in-
fringements on the part of local authorities under their jurisdiction.
2°. They watch over the preservation of the public order, the safety, the rest
of the population and the public health. In this domain, they may require
the assistance of the police.
3°. They attend the meetings and discussions of the local authority’s bod-
ies, when they consider it relevant.
4°. Local authorities’ administration and their staff are placed under their
immediate oversight. They watch over the manner how the personnel
carry out their duties and obligations.
5°. They watch over the regular administration of the assets and the income
of the municipalities.
8
Some decisions taken by public institutions placed under the supervision of the munici-
palities are submitted to the prior approval of the parent city council.
427
6°. They propose local authorities the approval of police regulations and

other measures which they find useful or necessary.
7°. They examine the budgets and the accounts of the municipalities, those
of the other local bodies (établissments publics) and those of the asso-
ciations of municipalities.
8º. In general, municipalities send to the District Commissioner every ma-
jor project, in order to be analysed and, if necessary, forwarded to the
higher authorities.
District commissioners visit the municipalities of their district as often as
the interest of the service so demands, and they enjoy wide powers of inspec-
tion on the day-to-day routine of local authorities. Namely, they examine the
state of conservation of the municipal buildings; they inspect the maintenance
of archives and administrative offices, and they supervise whether the staff of
the local authorities fulfils their duties and obligations in an appropriate man-
ner. District commissioners also take care that the municipal income is spent in
the best interest of the municipality and that all the local properties and goods
are used in the manner that best suits the local community. If necessary, they
may write reports to the Home Secretary, covering questions or problems raised
by the administrative and financial management of the municipalities, the local
bodies and the associations of municipalities.
Thus, national agencies have in Luxemburg the power to intervene in the
decisions of local authorities, by refusing to grant the required approval (when
this approval is necessary) or by overriding an already taken decision. Howev-
er, local authorities are empowered to go to courts, lodging appeals against the
measures taken in the exercise of the «tutelle» power. The sound exercise of the
«tutelle» power is therefore controlled by the courts.
Apart from that, every citizen or corporation may challenge in court the
measures and decisions taken by the municipal authorities, as long as the plain-
tiff may prove the existence of a required interest to sue. In the Luxembourg
administrative court system, the plaintiff may, according to the different legal
possibilities, either ask the court to override and modify the municipal decision
(something called, in the French Administrative law tradition, «recours de
pleine juridiction») , or just the annulment of the challenged decision («recours
en annullation»). In some cases, the plaintiff may even ask for injunctive relief,
consisting of the provisional suspension of the challenged decision, until the
case will be adjudicated on the merits by the court.
The local authority whose decision is challenged in court plays the litigation
role of defendant. If the challenge is eventually admitted by the administrative
court, the local body has the right to appeal to a higher court, usually the Con-
seil d’Etat.
Apart from the supervision performed by the district District Commissioner
and by the national executive authorities, it should be pointed out that the activ-
428
ity and measures taken by local authorities may also be scrutinised by the Om-
budsman, whose mission reaches all governmental authorities, at either the
State or local level. The citizen thus has the possibility of addressing the na-
tional Ombudsman when he intends to complain about a case of maladministra-
tion or bad functioning of the municipal authorities in a case concerning him.
As it happens with State administration, the Ombudsman has the power to in-
vestigate the complaint, and to make recommendations.
The question of the compatibility of the administrative supervision («tu-
telle») with the provisions of the European Charter of Local Self-Government
has not been the object of a substantive discussion in the country. Certainly, in
1988, when the new Municipal Act was enacted, there was a discussion on the
said compatibility, but the truth is that the old instruments of the administrative
supervision (rooted in the old Law of 1843) were reproduced, although in a
lighter form. In fact, the parliamentary works on the ratification of the Charter
and the adoption of the new Municipal Act, took place more or less at the same
time. At present, there is not a real discussion on this topic.
According to domestic case law, the controversies about the inter-govern-
mental supervision («tutelle») are rather frequent, but references to the Euro-
pean Charter of Local Self-Government in this litigation are very scattered.
Some decisions, though, may certainly be cited here. For instance, ruling
number 10762C , delivered on October 29th, 1988, by the Administrative Court
(Cour Administrative, the supreme jurisdiction on the subject). In this case, the
court examined an appeal – lodged by the affected town – against a denial of ap-
proval of a local decision on land use management. The court said that the system
of requiring prior approval for some local decisions is compatible with art. 4 of
the Charter, and that the measure of approval, thus the control of opportunity, is
not against art. 8 of the Charter, when the competence at stake is a competence
delegated to municipalities by the legislator. The competence involved in that
case (territorial planning), was a competence of the central government.
In this sense, it has also been ruled by the Administrative Court that: «The
principle of the municipal autonomy enshrined in article 107 (1) of the Consti-
tution is also recognised by the European Charter of local self-government,
signed in Strasbourg on October 15th, 1985, and approved by the law of March
18th, 1987. According to the article 2 of the Charter, «the principle of local
autonomy must be recognized in the internal legislation and, as much as pos-
sible, in the Constitution». It therefore follows from article 2 of the European
Charter of the local autonomy, together with article 107 of the Constitution,
that the autonomy of the municipality is the rule, whereas the submission to the
control of a the superior authority constitutes the exception (ruling of the «Cour
Administrative», of December 11th, 2001 (N 13407C)).
In another case, where a municipality challenged the validity of the supervi-
sory powers of central authorities, the Administrative court declared that: « …art.
429
8 of the Charter deals with the «administrative control of the acts of local au-
thorities». In connection with the principle of municipal autonomy, paragraph 1
of the aforementioned article 8 states that «Any administrative control over local
authorities can be exercised only according to the forms and in the cases estab-
lished by the Constitution or by the law». According to paragraph 2 of the same
article 8 «any administrative control of the acts of local authorities aims only at
ensuring the respect of the legality and the constitutional principles». We must
admit that the Constitution, by means of its article 107, paragraph (1), is in the
line with art. 8, paragraphs 1 and 2, of the Charter. Therefore, the arguments of
the plaintiff municipality, according to which the control by the superior author-
ity should not be admitted in this case, must be dismissed» (Ruling of 22.3.2007,
number 22256C).
The protection of local autonomy is based on constitutional and legal texts.

It was previously mentioned that, at section 107, the Constitution recognises
the autonomy of municipalities. In addition, the Municipal Act implements the
protection of the municipal autonomy by organizing a comprehensive mecha-
nism of appeal against the decisions taken by the central authorities when they
discharge their «tutelle» powers. On the other hand, the mechanisms of finan-
cial transfers and financial equalisation, which have been described above, do
guarantee that local authorities enjoy a reasonable margin of financial operation
required for an effective autonomy.
The appeals provided for by art. 107 of the Municipal Act include the referral
to the Constitutional court, when one piece of legislation is allegedly incompat-
ible with a constitutional provision or principle (for example, the violation of the
principle of autonomy). A preliminary ruling can be referred to the Constitu-
tional Court by the court where the claim of unconstitutionality is produced.
By virtue of art. 95 of the Constitution, the courts can only apply the gen-
eral and local regulations as far as they are in accordance with the law. There-
fore, any jurisdiction is competent to ascertain the conformity of these regula-
tions with the law, including constitutional law provisions.
It is however advisable to stress that the competence of the Constitutional
court is limited to the control of the constitutionality of domestic pieces of leg-
islation. Therefore, the said court cannot analyse the conformity of a given do-
mestic legal rule with the provisions of the European Charter of Local Self-
Government, which is an international treaty. On the other hand, however, any
jurisdiction has the power to check the conformity of a given legal rule with the
provisions of international treaties, since they are considered to have a «supra-
legal» authority. Consequently, it can be said that the claims of non-conformity
of a domestic statute or of a statutory instrument (regulation) with the require-
430
ments of the Charter can be claimed in the judicial and administrative jurisdic-
tions, but not in the Constitutional court.
In the context of the European Union, the municipal sector is represented to

the Committee of the Regions by six members, appointed by their peers, the
Association of Towns and Cities of Luxembourg (Syvicol). This national as-
sociation, to which all the municipalities of the country adhere, is the spokes-
man of the municipal sector towards the State and it is consulted or intervenes
spontaneously on all the questions of municipal interest. By the intervention of
Syvicol, the point of view of the local sector is usefully taken into account both
towards the national subjects and as regards the aspects of European policies.
On the other hand, the Luxembourg municipalities are actively engaged in
the management of the structural funds of the Union, such in particular the
Leader programs, Feder, etc.
12.1. Landmark cases and decisions on local government:
The case law in the matter of local government is plentiful. Therefore, only
some key decisions are quoted below. All the relevant case law may be con-
sulted under www.legilux.lu
In this sense, it would be advisable to cite the following rulings on adminis-
trative supervision (tutelle)9:
1. Measures in the domain of «tutelle» consisting in the overriding or the
suspension of decisions taken by municipal authorities can take place
only for reasons of illegality or on grounds of incompatibility with the
general interest. However, the measures by which central authorities do
approve or disapprove a given local decision may be justified by consid-
erations of opportunity. (CA 29-10-98 (10762C).
2. The approval of a local decision by a central authority must be in princi-
ple «pure and simple», that is, the central authority can not, as a general
rule, add up or modify anything in the local decision. Exceptionally, the
partial approval of an act submitted to the control of the central authority
is allowed, under certain conditions: CA 25-11-97 (9477C); CA 7-4-98
(10562C); CA 12-5-98 (10551C); CA 12-5-98 (10552C).
9
In the following rulings, «CA» stands for Cour Administrative, that is, the administrative
court. «TA», means «Tribunal d’appellation», that is, the appellate court.
431
3. By virtue of the principle of municipal autonomy, a citizen can validly

introduce an appeal against a decision taken by the municipality, without
waiting to see the decision eventually approved or not by the supervisory
central authorities. The approval by the central authority is considered
just a necessary complement of the local decision. (TA 30-3-98 (10084);
4. The decisions on administrative «tutelle» taken by the central, supervi-
sory authorities have a retroactive validity, that is, the approval given by
the regulatory authority has the character of a condition for a local deci-
sion to be valid. The validity of the local decision, therefore, does not
start on the day of the approval rendered by the supervisory authority, but
from the day when the decision was taken. Here, the general principle on
the effects of pre-conditions on the validity of legal decisions ( enshrined
at art. 1179 of the civil code) applies. (CA 5-7-2001 (12669C); CA 5-7-
2001 (12777C),
5. The supervision (tutelle) does not authorize the higher authority to inter-
fere in the management of the decentralized service and to substitute its
own decision by that of the officials in charge of the public service. This
principle follows from the nature of the supervision, whose only purpose
is to maintain the municipal power within the limits of the legality and to
ensure the conformity of its actions with the requirements of the general
interest. ( TA 3-4-03; TA 5-5-03; TA 13-10-03)
The publication made on the occasion of the 150th anniversary of the Council
of State in 2006 («Le conseil d’état, gardien de la Constitution et des Droits
et libertés fondamentaux»)10 contains a detailed comment of the Constitu-
tion, and also a chapter dedicated to municipalities.
Pierre Majerus’s standard work «L’Etat luxembourgeois» (The State of Lux-
embourg), published by Editpress Esch-sur-Alzette (1990), has a chapter on
municipalities.
For a detailed (although a bit old) treatise on Luxembourg municipalities, see:
Nicolas Majerus, Die Luxemburger Gemeinden, Sankt-Paulus-Druckerei,
Luxembourg, 1963.
Articles on local government may also be found in the bulletins of the Confer-
ence Saint Yves Luxembourg and of the Cercle François Laurent Luxem-
bourg (the main traditional associations of lawyers in Luxembourg) as well
as in the Annals of the Law of Luxembourg (Bruylant, Brussels).
10
The Council of State, the guard of the Constitution and the fundamental rights and Liber-
ties, the Luxembourg.
432
1. A complete documentation on current constitutional, legislative and stat-

utory texts can be consulted on the site: www.legilux.lu. This site also
informs about the constitutional and administrative law decisions issued
in the context of the municipal sector.
2. The case law is regularly published in «Luxembourg Pasicrisie» which
includes a section devoted to the administrative case law. Besides, gen-
eral law reviews publish frequently rulings on for the municipal sector,
with comments and notes.
3. Among the available websites for consultation in the subject, it is worth
mentioning:
– www.legilux.lu. This site includes the whole Luxembourg legislation,
the site of the Chamber of representatives (www.chd.lu) on which the
works and parliamentary documents can be consulted, and the sites of
certain ministries more specially connected with the municipal sector,
such the Home Department.
– www.gouvernement.lu includes also reports on legislative activity.
4. Association of Municipalities and Cities: www.syvicol.lu
433
Chapter 18:
LOCAL GOVERNMENT IN MALTA
Kevin AQUILINA
Isabelle CALLEJA
Malta is a small state comprising an archipelago of islands, only three of

which are inhabited: Malta, Gozo and Comino. It has a total land area of 316
square kilometres, with a population of 406, 771 (July 2010 est.).1 Independ-
ence was obtained from the British in 1964 after more than one and a half
centuries of colonization. On 21st September 1964 the Malta Independence
Act 1964, a statute of the UK parliament, provided for the cessation of all
responsibility of the UK government for the affairs of Malta, and the Consti-
tution of Malta came into being. Malta became a constitutional monarchy,
and from 1974 a Republic within the Commonwealth, with a unicameral
parliament and adopting the principle of proportional representation using
the single transferable vote.2 In 2004 Malta became the smallest new mem-
ber of the European Union and in 2008 it adopted the Euro as its national
currency.
The island population until recently was fairly homogenous, with no distinc-
tive ethnic or cultural variations; therefore, no federal arrangements were
deemed necessary. Since the island is small there was also no need felt to estab-
lish local governance. The one exception was the island of Gozo.
In 1993, with the priority of EU membership in mind, the Local Councils
Act was enacted (Act No. XV of 1993, Chapter 363 of the Laws of Malta, here-
inafter «the Act»). This statute set up 67, later 68 local councils.2 The Act is
modeled on the Charter of Local Self- Government of the Council of Europe
(hereinafter, «ECLSG»).
https://www.cia.gov/cia/publications/factbook/print/mt.html -
1
https://secure2.gov.mt/localgovernment/legislation?l=1
2
435
kevin aquilina - isabelle calleja
Under the Act, it is provided that: «The Council shall be a statutory local
government authority having a distinct legal personality and capable of enter-
ing 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 the Act.» The Mayor is
the political head of the Council and this figure will be presented below (see
point 5).
Local government at its inception was characterized primarily by the slow
decentralization of administrative functions. Through a number of amendments
made to the Act the competencies of local government however have grown,
and it has now acquired legislative and judicial powers.3 Local councils are now
empowered to make by-laws and to take decisions that affect their locality.4
In 2001 local councils were accorded constitutional recognition and Act No.
XIII of 2001 (an Act to amend the Constitution of Malta), was published.5 With
effect from this date, through Article 115A, the Constitution of Malta provides
that: «The State shall adopt a system of local government whereby the territory
of Malta shall be divided into such number of localities as may by law be from
time to time determined, each locality to be administered by a Local Council
elected by the residents of the locality and established and operating in terms
of such law as may from time to time be in force.»
The Office of the Prime Minister is presently responsible for legal control of
local government activities. A monitoring unit has been set up within the De-
partment of Local Government to check compliance with existing laws and
more particularly with the Act. The Director of local government may at any
moment require any Executive Secretary to produce accounts and records. By
virtue of a legal notice issued in January 2006, council members can now be
held personally responsible for fraud.6
As a general assessment of the situation, it can be said that local councils
have now been operating for over eighteen years and the role of local govern-
ment is becoming increasingly important on the island to ensure the general
health and wellbeing of the citizen. Local council authorities have therefore
pointed to the need for further reform. It is argued that local councils need
greater autonomy. However, this cannot happen without the introduction of lo-
cal taxes, which will enable councils to provide for their own funding. On the
other hand, it would be desirable that the administrative secretaries of the local
councils be selected and placed under the remit of the local authorities rather
than under other central government, which is presently the case. The role of
3
Refer to the website of the Office of the Prime Minister since Local government falls under
its remit. https://opm.gov.mt/dipartiment-gvern-lokali
4
Act No XII of 1995 (amending the Commissioners for Justice Act).
5
Act No. XIII of 2001 (an Act to amend the Constitution of Malta).
6
DEXIA Sub National Governments in the EU, December 2008, p.473.
436
local government in malta
the new regions also needs to be determined since as yet they are hollow or-
ganisations with no power. Local councils also need to be assisted in order to
perform their role in an optimal manner. One bone of contention in this regard
has been the issue of accessing EU funds though the new 2009 co-financing
mechanism will to some extent mitigate the situation. It is envisaged that a
strengthened local government will raise general standards at the level of the
community.
However, there are several key issues regarding local councils which still
need to be addressed. These comprise: (a) the limited delegation of powers by
central government to local government; (b) the limited powers which local
government has over its own affairs; (c) the fact that local government does not
enjoy taxing powers; (d) the lack of adequate resources put to the disposition of
local government by central government; and (e) the limited law making pow-
ers exercised by central government.
Over the last 18 years, the structures, role and scope of local government in
Malta have become more complex, more defined and enmeshed within the con-
text of government institutions and civil society organizations. The Maltese
political model since 1993 has evolved somewhat from the distinctive two-tier
model of government, though the new tiers subsequently introduced were put
in place for primarily administrative and accounting purposes. The system re-
mains unitary, highly centralized with power located at the centre. Power rests
primarily with the Prime Minister and the Cabinet. Central Government con-
sists of a number of Ministries. Their number and their combination of compe-
tencies have tended to change over time. Presently there are nine ministries.7 At
the local level there are local councils which as previously stated fall under the
remit of the Department of Local Government (Office of the Prime Minister).
Local councils, in accordance with administrative exigencies, were divid-
ed into 68 administrative units, the largest local council being B’Kara with
22,000 inhabitants and the smallest Mdina with 349. The number of coun-
cilors were to vary with the size of the population, the smallest number being
5 the largest being 13. Of these councils 54 councils are found in Malta, and
14 are to be found in Gozo.8 These form the most basic form of local govern-
ment and there are no intermediate levels between these councils and the na-
tional level. Having said this, local councils were originally subdivided into 3
7
Office of the Prime Minister, Ministry of Foreign Affairs, Ministry for Gozo, Ministry for
Infrastructure, Transport and Communication, Ministry for Resources and Rural Affairs, Minis-
try for Education, Culture, Youth and Sport, Ministry for Social Policy, Ministry for Finance the
Economy and Investment, Ministry for Justice and Home Affairs.
8
No. DOI -PR 0713.
437
regions. These regions and districts as previously stated were not however
levels of government, they were introduced to merely serve statistical pur-
poses, and had no administrative role.9 In 2002, joint committees were added
to regions and districts.
This system was simplified with the Local Council Reform of 2009. Under
the new legislation, the nine Joint Committees, the six districts and the three
regions were to be phased out and the concept of Regional Committees was
introduced. The sixty-eight local councils would now fall into five Regional
Committees mainly: the Gozo Region, the Northern Region, the Central Re-
gion, the South Eastern Region and the Southern Region, as laid down in the
revised Act.10 However, to ensure a smooth running of the Regional Commit-
tees, these began initially to be operated in parallel with Joint Committees.
According to a government directive (DLG 12/2010)11 the regional commit-
tees are a new level of government operating above that of local government.
Their responsibilities are devolved or delegated to them by the Minister when
the latter believes that these organizations have the resources and competency
to take on these responsibilities. They can also be delegated responsibilities by
the local councils of the region. As yet is it unclear what the responsibilities
and competencies of these regions are, however it is clear that presently they
lack any formal legislative, political or administrative role. The members of
each regional committee are the mayors of local councils that fall under that
committee.
The local councils reforms of 200912 also introduced the concept of admin-
istrative committees (also referred to as «hamlets» of «mini councils») answer-
able to the local council. 16 localities which were either distant from the centre,
or which had particular needs, were given administrative committees. These
committees each have five members – which, in some cases, amounts to the
same number of councillors on the local council – and are elected by popular
vote.13
On the other hand, local government has also been given a judicial arm with
the introduction of «Local Tribunals» in 2000. They are used to deal with judi-
cial matters of a local nature. They are presided over by Commissioners for
Justice who are appointed in the same way as other members of the judiciary.
There are nine tribunals in Malta. This division overlaps with that of the joint
committees. These tribunals deal with the following contraventions; motor ve-
hicles and road safety, sanitation, hygiene and cleanliness, environment, com-
mercial activities and licenses.14
9
http://districts-of-malta.co.tv/#Malta_Statistical_Districts_and_Regions
10
https://secure2.gov.mt/localgovernment/regional_committees?l=1
11
https://secure2.gov.mt/localgovernment/regional_committees?l=1
12
An Act to amend the Local Councils Act, Cap. 363.Act No XV1 of 2009 clause 30
13
Refer to LN 54/2010, 82/2010, 311/2010, 43/2010
14
https://les.gov.mt/tribunalinfo.aspx
438
Summing up, the levels of government in Malta are:

(1) Central Government
(2) Regional Committees
(3) Local Councils
(4) Administrative committees
There are nine «Joint Committees»15, five regional committees and 68 Local
Councils.16
3.1. The European Charter on Local Self government (ECLSG)
Malta signed the Council of Europe’s ECLSG on 13 July 1993 and ratified
it on the 6th September 1993. The Charter came into force in Malta on 1 January
1994. Malta made no reservations to the Charter but entered a declaration
wherein it was stated that Malta was bound by 25 articles of the said interna-
tional treaty, the most important provisions of it. As for the legal force of the
Charter in the domestic legal order, it is important to point that Malta is a dual-
ist state and hence for the Charter to have legal force it has to be incorporated
into Maltese Law. Unless this happens, Malta is bound by the provisions of the
Charter only at an international level.
The Charter’s provisions have been incorporated into Maltese Law, in two
laws: the Constitution of Malta and the Act. The incorporation of article 4 is
described here, while the incorporation of other provisions will be discussed at
other points of this contribution.
Thus, article 4 of the Charter has six paragraphs, which have all been incor-
porated into Maltese Law. For instance, paragraph 1 states that the «basic
powers and responsibilities of local authorities shall be prescribed by the con-
stitution or by statute» and that «powers and responsibilities for specific pur-
poses» may be attributed to local authorities. It is article 33 of the Local Coun-
cils Act which sets out the functions of local councils and article 34 of the Act
sets out their rule-making powers. Moreover, special laws also attribute other
functions to local councils such as the Commissioners for Justice Act (Chapter
291 of the Laws of Malta) and the Private Guards and Local Wardens Act
(Chapter 389 of the Laws of Malta). Paragraph 3 requires the exercise of pub-
lic responsibilities «by those authorities which are closest to the citizen.» Cen-
tral government should, as far as possible, decentralize its powers and devolve
15
For a description of this bodies and of the constituent local authorities, see: https://les.gov.
mt/descriptionles.aspx
16
For a description of this bodies, see: Demographic Review 2009, National Statistics Office
Malta (web)
439
them upon local government. This is in fact was has been happening in Malta
since the enactment of the Act in 1993 even if there is still a long way to go to
give full effect to this provision. Since then their functions have been to in-
crease incrementally and the more time passes the more does central govern-
ment continue to devolve its powers thereupon. Article 33 of the Act was
amended in 1999, 2005 and 2009. Each time it was amended more functions
were devolved upon local councils. Paragraph 4 mandates central government
to give full and exclusive powers to local authorities and when restrictions are
imposed, these limitations have to be provided by law. Although the Act does
impose some limitations on the exercise of powers by local authorities, such
restrictions are established by law.
Lastly, article 4, paragraph 5 of the Charter allows the delegation of powers
by central government to local government whilst permitting the latter to adapt
the exercise of these powers to local conditions. One such instance of delega-
tion of powers is article 9 of the Environment and Development Planning Act
(Chapter 504 of the Laws of Malta) which allows the Malta Environment and
Planning Authority to delegate its powers, including its enforcement powers, to
local councils.
3.2. Constitutional arrangements and provisions on local government
As said at point 1, local self-government was introduced in Malta by the

Local Councils Act, 1993, Act No. XV of 1993, now Chapter 363 of the Laws
of Malta. It was only subsequent to this enactment that in 2001 the Constitution
of Malta was amended by article 4 of Act No. XIII of 2001 to introduce a new
Chapter in the Constitution, Chapter XA, entitled «Local Councils». A new
provision was added by the 2001 amendments, article 115A, to the Constitution
of Malta. Hence local self-government has been expressly declared in the Con-
stitution of Malta since 2001. The provision refers to local councils and not to
regions and communities. This is because not all local councils have communi-
ties and regions are not considered a tier of authority in Malta as power is
vested in the local councils and not in regions. The word «Region» is more used
as a geographical term rather than as an institution of local authority. This con-
stitutional provision is supplemented by the Act which makes provision for the
setting up of local councils and their regulation.
In Malta, there is a one-tier system of local government consisting in local
councils. The powers of regions do not exist and decisions taken by the Admin-
istrative Committees of the communities have to be approved by the local
council under whose jurisdiction they fall. Administrative Committees are
more of a sub-committee of a local council for a particular community estab-
lished by law. In all, there are 5 regions, 68 localities and 16 communities, one
of which borders into two localities. The geographic regions group the follow-
ing localities: Northern Region (12 localities); Central Region (13 localities);
440
Southern Region (15 localities); South Eastern Region (14 localities); and Gozo
Region (14 localities).
Apart from the Local Council Act, various subsidiary laws have been made
under this law to give further effect to its provisions. This subsidiary legislation
– which at the moment of writing counts to one hundred and fifty-four separate
and distinct subsidiary laws – comes in three different forms: (a) Regulations;
(b) Orders; and (c) Bye-laws.
In terms of the Act:
– Regulations are made by the Minister responsible for local government,
the Minister responsible for finance and by the Director of the Department
for Local Government17;
– orders are made by the President of Malta and the Minister responsible for
local government18;
– bye-laws are made by local councils though the Minister responsible for
local government19 (article 35(7) of the Act). Regions and communities do
not have the power to make bye-laws.
It is important to note that the capital city of Malta, Valletta, is not accorded
any special status at law even though it is on UNESCO’s World Heritage List.

AUTHORITIES
Local councils have a variety of powers assigned to them by law. These

comprise law-making, the right to be consulted, to provide advise to central
government, the right to sue before a court to exercise and safeguard their own
powers, the right to issue tenders or seek quotations, the right to borrow money,
the right to form joint committees and the right to act as delegates of central
government. Further, local councils have the power to make subsidiary laws. In
terms of article 34 of the Act, a local council may make by-laws. Rulemaking
17
Among the most important regulations, stand the following: S.L. 363.01 – Local Councils
(Financial) Regulations; S.L. 363.03 – Local Councils (Tendering) Regulations; S.L. 363.06 –
Local Councils (Association) Regulations; S.L. 363.12 – Local Councils (Procedures) Regula-
tions; S.L. 363.20 – Local Councils (Human Resources) Regulations; S.L. 363.147 – Mayors and
Local Councillors’ Allowance Regulations; S.L. 363.149 – Administrative Committees for Com-
munities Regulations; S.L. 363.150 – Local Governance Board Regulations.
18
Among the most important orders stand the following:S.L. 363.13 – Local Councils (Del-
egation of Functions) (Police Licences) Order; S.L. 363.41 – Local Councils and Regional Com-
mittees (Delegation of Enforcement) Order; S.L. 363.140 – Delegation of Administration of Fa-
cilities to Local Councils Order.
19
By-laws deal with a plurality of matters such as the regulation of skips, advertisements on
street furniture, advertisements on the internet, organisation of courses, hire of property, use of
facilities and control of pigeons.
441
is thus exercised through by-laws. The Act also provides in article 36 for penal-
ties for contravention of by-laws. Local councils also have the power to offer
«for tender or for quotations any works, goods or services related to its func-
tions or the transfer of any land (article 40 of the Act). Local councils also
choose their premises (article 48 of the Act). Local councils can also enter into
twinning arrangements (article 79 of the Act). 58 such agreements have been
signed as on 22 February 2011. On the other hand, local councils are not au-
thorised to expropriate private property nor to levy taxes. Nor can they have
broadcasting facilities (article 77 of the Act). Nor do they process and/or ap-
prove development permission applications – such powers still vest in the Mal-
ta Environment and Planning Authority.
In terms of article 3(2) of the Act, a local council is prohibited by law to: (a)
borrow or lend any monies except with the authority in writing of the Minister
with the concurrence of the Minister responsible for finance; (b) enter into any
form of commercial partnership in furtherance of its functions or otherwise,
unless authorised to do so in writing by the Minister; and (c) delegate any of its
functions in a manner other than that established by or under the Act. A Local
Council may enter into public private partnerships both with the private sector
or with nongovernmental organisations, following approval by the Department
for Local Government, the Minister responsible for finance and the Minister
responsible for Local Government where such partnership benefits the resi-
dents of the locality.
The competences and responsibilities which local councils are obliged to
deliver under the law are set out in article 33 of the Act. Since a full an exhaus-
tive enumeration of these is not feasible here for reasons of space, some of them
are here listed:
(a) provide for the upkeep and maintenance of, or improvements in, any
public street or footpath, including patching and resurfacing but not re-
construction;
(b) provide for the collection and removal of all refuse from any public or
private place, for the maintenance of cleanliness and for the upkeep and
maintenance of all public conveniences, dustbins and other receptacles
for the temporary deposit and collection of waste; and to ensure that
these are accessible to all persons, including persons using a wheel-chair;
(c) provide for the establishment, upkeep and maintenance of children’s
playgrounds, public gardens and sport, cultural or other leisure centres;
(d) administer local libraries and to ensure that these are accessible to per-
sons using a wheel-chair;
(e) provide and maintain proper road signs and road markings, to provide
for the installation and maintenance of bus shelters, to establish and
maintain pedestrian and parking areas and to provide for the protection
of school children in the vicinity of schools;
442
(f) propose to and be consulted by any competent authority prior to the lat-
ter making any changes in traffic schemes directly affecting the locality;
(g) make recommendations to any competent authority for or in relation to
any planning or building scheme and to be a full participant in any deci-
sion on the naming or renaming of streets;
(h) protect the natural and urban environment of the locality and take all
necessary measures to ensure the more efficient use of energy, good
waste management and climate change initiatives.
5.1. The local council
All local councils are elected by the residents of the locality in question.
Article 5 of the Act establishes two types of voters: (a) Maltese citizens whose
name appears in the last published Electoral Register and who have not been
convicted of any offence connected with the election of members of local
councils; and nationals of a Member State of the European Union whose
name appears in the last published European Union Electoral Register and
who have not been convicted of any offence connected with the election of
members of local councils. The Act stipulates that local council elections are
to be held every four years by means of the system of proportional representa-
tion using the single transferable vote (article 8(1)). The number of council-
lors for each locality is determined according to the population of the local
authority: from five councilors where the population is under five thousand to
thirteen councillors where the population is twenty thousand or more (article
4(1) of the Act).
5.2. The mayor
The Mayor is the political head of the Council. Until 2008 he was elected by
the councilors.20 However, since the enactment of a 2009 statute,21 article 25(1)
of the Act provides that the Mayor is elected from such Councillor who at the
last local election obtained the highest number of votes in the first count
amongst the candidates of the political party which at such elections obtained
the absolute majority of Councillors in such Council. A similar provision exists
in article 25(2)(a) of the Act with regard to the election of the Deputy Mayor.
20
The 2005 local Council Act amendments changed certain election procedures and the
conditions of the vote of no confidence for the mayor. He can now be removed from office by a
vote supported by at least one third of councilors as opposed to the absolute majority required
before 2005.
21
Act No. XV1 of 2009 http://www.google.com/search?q=ACT+XV1.+2009
443
As to powers, the Mayor is, according to article 26(1), «the representative

of the Council for all effects under this Act and shall preside over all meetings
of the Council and supervise all functions of the Council.» He is also «respon-
sible for the furtherance of the objects and provisions of this Act in the local-
ity and Mayors shall co-operate between themselves for the better welfare of
the localities which they represent.» Moreover, the Mayor has the legal and
judicial representation of the Council together with the Executive Secretary.
Together they may sue and have be sued on its behalf. The Mayor and Deputy
Mayor hold office until the expiration of the term of the Council or until such
time as the Mayor or Deputy Mayor resign or are removed from office before
the lapse of their term or are disqualified from remaining in office in accord-
ance with the Act.
His role includes chairing council meetings and he is also responsible for
supervising municipal activities. He is supported in these tasks by the Execu-
tive Secretary who is appointed by the deliberative council, following consulta-
tion with the Department of Local Government. Hired on a three year contrac-
tual basis he/she can only be removed from office or suspended with
ministerial approval. He/she is responsible for the executive, administrative
and financial management of the local council. 22
The Mayor can exercise «certain functions on behalf of the State» if an

agreement is made with a particular government organisation/authority to per-
form functions which are exclusively the competence of the (central) govern-
ment or pertaining to that particular authority. Such functions can only be ex-
ercised under the direct supervision and responsibility of the competent
authority and after obtaining approval from the Minister responsible for local
councils.
In so far as the appointment of a Mayor and Deputy Mayor is concerned,

the procedure is as follows: should a Mayor vacate office, it will be occupied
by such person belonging to the same political party who has obtained the
highest number of votes in the first count after the Mayor (article 25(1) of the
Act). Where it is the office of Deputy Mayor which becomes vacant, it is filled
by that Councillor belonging to the party that has obtained the absolute major-
ity of Councillors and who obtained the majority of first preference votes after
the Deputy Mayor. A Mayor and a Deputy Mayor cease to hold office upon a
vote of no confidence delivered by a majority of the Councillors in office (ar-
ticle 29(1) of the Act). A motion proposing a vote of no confidence in the
Mayor or Deputy Mayor has to be signed by at least one third of the Council-
lors in office and has to specify the reason for such motion and propose an-
other Councillor to be elected as Mayor or Deputy Mayor, as the case may be
(article 29(2)).
22
DEXIA Sub National Governments in the EU, December 2008 p471
444
Co-operation with other councils is regulated by the provisions of article 37

of the Act. Two or more local councils may discharge any of their functions
jointly and they may also arrange for the discharge of these functions by a joint
committee of theirs or by an officer of one of them. Local councils having an
arrangement as aforesaid may meet in joint session to discuss the discharge of
the functions to which the arrangement relates and all councilllors are entitled to
participate and vote where required unless the arrangement otherwise provides.
Local councils form part of the Local Councils Association which is regulated
by the Local Councils (Association) Regulations (Subsidiary Legislation
363.06). It protects and promotes their common interests. The Association is a
member of the Council of Europe’s Congress of Local and Regional Authorities
and the European Union’s Committee of the Regions (see below, point 11).
6. HUMAN RESOURCES
Article 6 Paragraph 1 of the ECSG is concerned with the right for local au-
thorities «to be able to determine their own internal administrative structures in
order to adapt them to local needs and ensure effective management.» This
provision of the Charter is also reflected in Maltese Law. Therefore, human
resources matters are addressed by articles 49 to 54 of the Act and by the Local
Councils (Human Resources) Regulations (Subsidiary Legislation 363.20 of
the Laws of Malta).
Article 49 of the Act empowers a Local Council to appoint an Executive
Secretary with the approval of the Minister responsible for local government,
chosen from amongst public officers (that is, civil servants). Article 50 vests
the power of appointing a Deputy Executive Secretary in the Local Council.
The duties of the Executive Secretary are also listed in article 52 of the Act and
the same provision states that «The Executive Secretary shall be the executive,
administrative and financial head of the Council.» In addition, in terms of arti-
cle 53 of the Act, the Local Council appoints its own employees. These em-
ployees are recruited through the Employment and Training Corporation. In
other words, such additional staff need not necessarily be public officers (i.e.
civil servants). In terms of article 47 of the Act, local councils may «appoint
Committees for the purpose of assisting the Council in the execution of its func-
tions» and in terms of article 37 of the said enactment, «two or more Local
Councils may discharge their functions jointly» and hence may appoint joint
committees.
Regulation 4(2) establishes the remuneration payable to an Executive Secre-
tary at a par with public service scales 5, 6 and 7. Executive Secretaries may, at
the discretion of the Council, also receive an annual performance bonus not ex-
ceeding 10% of their salary. The criteria for the award of such performance bo-
445
nus are set out in regulation 6(2). The salary of the Deputy Executive Secretary
is established in regulation 7. Training is regulated by regulation 35 of S.L.
363.20 and article 80(e) of the Act (the latter provision obliges the Director of
the Department of Local Government to «provide training for Councillors and
for Local Council employees»). Remuneration and career prospects, including
conditions of employment, are regulated by the provisions of regulations 8 to 34.
Art. 6, paragraph 2 of the ECLSG expresses the need for local authorities «to be
able to recruit and maintain a staff whose quality corresponds to the authority’s
responsibilities.» This provision also finds a counter-part in Maltese local govern-
ment legislation where it is provided in article 53(1)(a) of the Act that a local coun-
cil may employ «not more than one person per two thousand five hundred resi-
dents» although, where the population of a locality is less than the said number, the
Council can employ up to two employees. Paragraph 2 of the Charter further pro-
vides that «adequate training opportunities, remuneration and career prospects» are
to be provided to these employees and that their conditions of service are to «per-
mit the recruitment of high-quality staff on the basis of merit and competence.»
These matters are dealt with not in the primary law but in regulations made under
article 53(2) of the Act. The relevant regulations are the Local Councils (Human
Resources) Regulations (Subsidiary Legislation 363.20 of the Laws of Malta).
Local councils, however, have restricted powers to select and manage their
own human resources as a lot depends on the competent Minister’s decision.
The appointment of the Executive Secretary is made by the Local Council. But
the Minister responsible for local government has to endorse the Council’s ap-
proval (article 49(3)). An Executive Secretary may be removed or transferred
from one Council to another by the Minister (article 49(6)). In terms of regula-
tion 14 of Subsidiary Legislation 363.20, other personnel may be appointed by a
local council to carry out clerical, technical or other duties. All appointments in
the service of the Council are made on a three-year contractual basis, which may
be renewed for successive periods of three years (regulation 24 of S.L. 363.20).
Malta has only ratified in part art. 9 of the ECLSG, which deals with finan-
cial resources of local authorities: only paragraphs 1, 2, 7 and 8. Therefore,
Malta is not bound by Article 9, paragraphs 3, 4, 5 and 6 of the Charter.
Local councils have very limited monetary resources, consisting mainly of
a budget which is allocated to them by central government. In 1994 they were
allocated 6.3 Million Maltese liri. In 2007 their allocation had grown to Lm
10.25 million.23 The financial allocation for 2008/9 was 23,969,000 €.24 In
23
Ibid. under the subheading Department for Local Government.
24
National Audit Report Public Accounts 2009.
446
2011 the financial allocation to local government was 30,010,000. The finan-
cial allocation for 2010 was identical to that of 2011.25 Local government has
complained that in 17 years the amount has only doubled and in the last year
has actually fallen when seen in terms of inflation. Local councils are not em-
powered to collect their own taxes, and they can only raise loans with the con-
currence of central government. However they have the right to raise funds and
they may charge fees for municipal services.26 All in all Local councils have
very limited financial and decisional autonomy. Though local councils do not
participate directly in national economic planning, they do engage in research
and development and advise the government on certain policy areas including
sustainable development and environmental issues. However according to
Pace27 in 2006 only 2% of these projects were implemented at this level. Those
local councils that come up with research and development projects have to
apply for additional funds and such funds must get the approval of parliament.
In 2006 Malta devoted 0.6% of its GDP or 1.5% of public expenditure on local
government. In 2011 this remains the case and is amongst the lowest expendi-
ture in Europe.
According to Eurostat data (2007), Malta is the EU member state where

transfers from central government have the highest percentace in the overall
financing of local authorities, more than 70%.28
An assessment of total local government revenue for 2005/2006 which was

LM12.8m reveals that 80% of this funding came from government, with
smaller amounts generated by income from by-laws, law enforcement, invest-
ment, and other sources.29 In 2009 from a budget of 27,466,058 Euros,
21683,541 Euros were obtained from central government, and 5,782,517 Eu-
ros were raised by local councils indicating that the percentage terms the fig-
ure had remained constant. Central government collects all taxes and rates and
Councils cannot raise taxes. Revenue-sharing Allocation of funding to local
councils by government is set out in a funding formula in the Act. Money is
transferred annually. Funds for special needs used to be given as specific
grants by the government. Since 2000 these monies have been incorporated
into the annual allowance to councils for general use at their discretion. Any
balance at the financial year end is retained by the council. The financial Al-
location to local councils covers the following: Landscaping and Maintenance
of Parks and Gardens; Roads Maintenance and Roads Fixtures; Waste Man-
agement; A 640, and Administration.
25
https://secure2.gov.mt/localgovernment/local-finance?l=1
26
Local Council Act Chapter 363.
27
Pace, L. (2009). ERAWATCH research inventory report: Malta. European Communities
http://cordis.europa.eu/erawatch [retrieved March 30, 2009].
28
http://www.cbs.nl/en-GB/menu/themas/macro-economie/publicaties/artikelen/
archief/2008/2008-2624-wm.htm?Languageswitch=on
29
The Local Government System in Malta www.clgf.org.uk
447
For what concerns the financial structure of local government in malta 2005-
2006, the total local government spending for 2005/2006 was LM11.8m
(US$40.2m).
The main items of expenditure were:
1. Operations and maintenance 41%
2. Purchase of fixed assets 31.4%
3. Administration and other expenditure 17%
4. Personal emoluments 11%.30
On the other hand, article 59(1) of the Local Councils Act empowers local
councils «to discuss a three year plan on council operation, projects and finances
so as to provide a framework for the Council’s annual budgets.» It is thus the
council which decides on how to spend the monies allocated to it. Paragraph 2
stresses the adequacy of the financial resources allocated to a local council which
have to be «commensurate with the responsibilities provided for by the constitu-
tion and the law.» The Eight Schedule to the Act ensures that the said allocation
is worked out depending on the functions which local councils are required by
law to carry out. Paragraph 7 stipulates that «grants to local authorities shall not
be earmarked for the financing of specific projects.» As a matter of course, the
local council is allotted a lump sum of money and then it is the local council
which decides how to spend that sum on the basis of to its three year plan. The
local council approves its annual budget. Paragraph 8 allows borrowing for cap-
ital investment granting local councils «access to the national capital market
within the limits of the law.» This matter is dealt with by Part XIV of the Local
Councils (Financial) Regulations (Subsidiary Legislation 363.01).
The lack of funding for local government in Malta and its inability to raise
additional revenues was stressed by the Council of Europe’s Chamber of Local
Authorities, in a monitoring report on Local Government in Malta released in
March 2011.31 The report recommended that «given the importance of local
taxation for the development of a system of responsible local self-government,
the Maltese authorities are again invited to introduce such a system and in order
to overcome the objections to local taxes, and in order to train municipalities to
deal with taxation issues, the Maltese authorities should consider, as a first step,
the possibility of transferring some state taxes to local authorities.»
In 1999, central government introduced legislation to allow the transfer un-

der title of public land and property to local councils. Since local councils are
30
Ibid.
31
Chamber of Local Authorities, 20th SESSION CPL(20)3 1 March 2011, Local Democracy
in Malta, Monitoring Committee Rapporteur: Emil CALOTA, Romania (L, SOC1).
448
considered to be public corporations having a distinct legal personality, the

central government started devolving public property to councils under certain
conditions, without the need of parliamentary approval as is usually the case in
other areas. Councils were also given the right, under certain controls and con-
ditions, to grant title to third parties for the purpose of registering some finan-
cial gain or in furtherance of the development of the area. Several local councils
have signed the relative Agreement with the Government Property Department
for the devolution of property in their locality. This property can consist of
sports facilities, open public areas, heritage sites, or land for development that
is mainly used to either build the local councils’ office or a community centre.
This practice was formalized with the introduction of the Devolution of Public
Property (Administration) Regulations from 1999 to 2010, there have been 58
local councils that have benefited from 120 public properties ranging from pub-
lic gardens to underground structures such as war shelters and other structures
having historical value. The councils have slowly transformed these dilapidated
structures into social and cultural centres. As from 3 September 2009 local
councils also administer 54 local libraries.32
Local councils land are are not regulated by a special legal regime, but by
the ordinary civil law of the land is so far as landlord-tenant relationship is
concerned. The Act in article 40 allows the Council to transfer its land. Being a
body corporate established by law, it has all rights to own land.
9.1. Implementation of the ECLSG
In this domain, it is worthwile to see how the provisions of the ECLSG have
been implemented in Malta. To begin with, article 8.1 of the ECLSG requires
administrative supervision of local authorities to be in conformity with such
procedures inscribed in a legislative enactment. The supervision of local au-
thorities, in the case of Malta, is law driven. For instance, decisions of local
councils are subject to investigation by the Ombudsman (see below), in terms
of the Ombudsman Act (Chapter 385 of the Laws of Malta). Even the Act pro-
vides for the possibility for the President of Malta to dissolve a local council
following a recommendation to that effect in a report by a Board appointed
under the Inquiries Act (Chapter 273 of the Laws of Malta). In terms of article
81 of the Act, the Director of Local Government can issue warnings against
local councils which are not carrying out their functions within its responsibil-
ity. The Minister may, according to article 35(4) of the Act, propose amend-
ments in writing to any bye-law adopted by a local council even if the final say
rests with the Council. But in those cases where the Minister’s objection is not
32
https://secure2.gov.mt/localgovernment/delegation-to-councils?l=1
449
accepted by a local council, the Minister may lodge in writing his/her objection
to the approval of that bye-law. In terms of article 65, the Auditor-General may
appoint local government auditors to audit the accounts held by local councils.
The matter is further regulated by the Local Councils (Audit) Regulations (Sub-
sidiary Legislation 363.02 of the Laws of Malta).
On the other hand, art. 8.2 of the Charter requires supervision of local au-
thorities’ activities to be restricted within the narrow confines of «ensuring
compliance with the law and constitutional principles.» This is the position
with the Act which requires the Director responsible for local councils, for in-
stance, in terms of article 80(a) and (c) of the Act, to carry out his/her duties «in
full respect of the autonomy granted to Local Councils by this Act». However,
administrative supervision may be exercised «with regard to expediency by
higher-level authorities in respect of tasks the execution of which is delegated
to local authorities». Once again, this aspect is also regulated by Maltese Law.
(For instance, article 9 of the Environment and Development Planning Act).
Finally, art. 8.3 of the Charter provides for the application of the proportion-
ality principle when exercising administrative supervision of local authorities.
Although the principle of proportionality is not expressly mentioned in the Lo-
cal Council Act, it can be inferred from article 80(c) of the Act which requires
the Director for Local Government to perform functions «not being incompat-
ible with the autonomy granted to Local Councils» by the Act. Unproportionate
behaviour on the part of said Director will amount to a breach of the principle
of proportionality.
9.2. Types of control over local authorities
In general, there are three forms of control over local councils in Malta:
legislative, executive and judicial. These comprise both control of legality and
also control of opportunity (on the merits).
In so far as legislative controls are concerned, these are contained in the Lo-
cal Councils Act. As local councils have been established by Parliament, it is
Parliament which can decide to add, reduce or modify the rights, duties, powers
and functions which local councils enjoy under the Act and other laws. Parlia-
ment is thus supreme over local councils. Furthermore, it is Parliament which
approves the appropriation of monies for use by local councils.
In so far as executive controls are concerned, the Minister responsible for
local government is very much involved in the administration of the Act, and
has far-reaching competences in the domain of local government. His functions
are numerous and cannot be fully reproduce for lack of space. Among the most
important competences stand the following: authorising the borrowing or lend-
ing any monies (article 3(2)(a)); authorising local councils to enter into any
form of commercial or public private partnerships (article 3(2)(b)) and (d)); ap-
450
pointing a Committee of Management if no candidates are nominated to contest

the election of a Local Council (article 8(3)); establishing Councillors’ allow-
ance (article 32(2)); delegating functions to local councils (article 33(1)(x));
making regulations of general application for the purposes for which a local
council may make byelaws (article 34(2)); transferring a locality from one re-
gion to another (article 37(4));making regulations concerning the elections of
Administrative Committees (article 47A (5)); approving the choice of councils’
administrative offices (article 48(1)); approving the appointment of the Execu-
tive Secretary (article 49(2)); etc.
The dissolution of a local council is also established, in exceptional circum-
stances. Thus, the President of Malta, acting on the advice of the Prime Minis-
ter, is empowered to, dissolve a Council upon: a report of the Auditor General
for persistent breach of financial responsibilities; persistent non regard to the
provisions of the Act after formal notice has been given by the Minister; lack of
agreement in electing the Mayor; lack of agreement by the local council in ap-
proving its annual estimates; a recommendation to that effect in a report by a
board appointed under the Inquiries Act (article 22 of the Act).
In so far as judicial controls are concerned, the matter is regulated by the
Code of Organization and Civil Procedure. Of most relevance are articles 32(2)
and 469A. The former reads as follows: «The Civil Court shall take cognisance
of all causes of a civil and commercial nature, and of all causes which are ex-
pressly assigned by law to the said Civil Court.» The courts have interpreted
this provision in the sense of granting jurisdiction to the Civil Court, First Hall,
the power to enquire whether a decision of an inferior body is «bad on the
face».33 One of the earlier cases decided on 9 March 1901 by the Civil Court,
First Hall, to this effect was Riccardo Ullo Xuereb v. Enrico Magro noe. A
more recent case decided by the Court of Appeal on 3 March 2006 is Director
General Courts v. Pinu Axiaq where the Court of Appeal reiterated its jurisdic-
tion to examine decisions of an inferior body in terms of article 32(2) of the said
Code notwithstanding the fact that, in the meantime, that article had been
amended in 2004 and article 469A had been specifically introduced in the said
Code in 1995 regulating judicial review of administrative action. This because
the right to review decisions of judicial and quasi-juridical tribunals derives
from article 32(2) of the Code which confers to the Civil Court, First Hall, the
cognisance of all causes of a civil nature which are not expressly assigned by
law to another court. The Court of Appeal thus concluded that the Civil Court,
First Hall, had jurisdiction to exercise judicial review of administrative action
under both article 32(2) and article 469A of the Code and that under article
33
Perici vs. Busuttil noe et. v. Busuttil, 22 March 1976 and Joseph Cutajar v. Port Workers’
Board, 24 October 1974; Advocate Anthony P. Farrugia v. Electoral Commission, Court of Ap-
peal, 18 October 1996; Norman Rossignaud v. Gontran Borg noe, Civil Court, First Hall, 19
April 1990. For a review of the Civil Court, First Hall’s residual powers, see W. Ph. Gulia, «The
Residual Powers of the First Hall, Civil Court in Malta» (1978) 9 Id-Dritt Law Journal 56.
451
32(2), it could review decisions of inferior bodies as to whether their decision

was ultra vires, whether there was any breach of the principles of natural justice
and where the discretion exercised was fair and honest.
In terms of article 469A aforesaid, judicial review of administrative action
comes into play in the following instances: (a) where the administrative act is
in violation of the Constitution; (b) when the administrative act is ultra vires on
any of the following grounds: (i) when such act emanates from a public author-
ity that is not authorised to perform it; or (ii) when a public authority has failed
to observe the principles of natural justice or mandatory procedural require-
ments in performing the administrative act or in its prior deliberations thereon;
or (iii) when the administrative act constitutes an abuse of the public authority’s
power in that it is done for improper purposes or on the basis of irrelevant con-
siderations; or (iv) when the administrative act is otherwise contrary to law.
Public authority is defined as meaning «the Government of Malta, including its
Ministries and departments, local authorities and any body corporate estab-
lished by law.» From this definition it is very clear that local councils’ deci-
sions are subject to judicial review in the same way that decisions of central
government are also subject to judicial review.
In terms of article 3(2) of the Act, local councils are juridical persons 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. In terms of article 27 of the Act, the legal and judi-
cial representation of the Council is entrusted to the Mayor and to the Executive
Secretary. Local councils enjoy immunity from legal proceedings in terms of
article 21 of the Act.
Any person, body or authority may institute a court action against a local
council. The Act does not restrict a court action against a local council to any
category of persons. Hence the general principles of the law of civil proce-
dure apply. In this respect, a local council may be sued by any person who
has an interest in the action which could be central government, a Govern-
ment Ministry, Department and Agency, a public corporation, etc. Even
physical persons whether residents and non-residents can sue a local council.
In terms of article 27 of the Act it is the Mayor and the Executive Secretary
who have the legal and judicial representation of the Council. Hence they are
sued. There is, however, one case where a local council enjoys immunity
from legal proceedings which has been referred to above, namely article 21
of the Act.
As a rule, central government may challenge a decision, plan, action or any
other measure adopted by a local council only in those cases set out in the Act.
For instance, in terms of article 35(7) of the Act, the Minister may object to the
making of a bye-law by a local council. In such case the bye-law does not come
into force. No court intervention is required in this case. In terms of article 81,
452
if a local council fails to perform its functions, central government may entrust
such functions to any department, authority or agency at the local council’s
expense. Finally, the President of Malta may dissolve on the advice of the
Prime Minister a local council.
9.4. The Ombudsman
In Malta there is one national Commissioner for Administrative Investiga-

tions who is called the Ombudsman. S/he is an Officer of Parliament and is
appointed by the President of Malta acting in accordance with a resolution of
the House of Representatives supported by not less than two-thirds of all the
members of the House (article 3 of the Ombudsman Act, Chapter 385 of the
Laws of Malta). In so far as local councils, councillors and local council em-
ployees are concerned, it is the said Ombudsman who has jurisdiction to inves-
tigate their administrative functions. Indeed, article 12(1)(c) of the Ombuds-
man Act provides that «local councils and any committee thereof and members
of staff of all local councils» are bound by the provisions of the Ombudsman
Act. However, the Ombudsman does not deliver binding decisions over local
councils but recommendations. These recommendations do have persuasive
authority and as a rule are acted upon by local councils notwithstanding their
non-binding nature.
As to the jurisdiction which the Ombudsman enjoys over local councils, in
terms of article 22(1) of the Ombudsman Act, the Ombudsman may investi-
gate a complaint against a local council, its councilors and employees, where
their decision, recommendation, act or omission which was the subject-mat-
ter of the investigation: (a) appears to have been contrary to law; or (b) was
unreasonable, unjust, oppressive, or improperly discriminatory, or was in ac-
cordance with a law or a practice that is or may be unreasonable, unjust, op-
pressive, or improperly discriminatory; or (c) was based wholly or partly on
a mistake of law or fact; or (d) was wrong. In those very exceptional cases
where a local council outrightly refuses to act on an Ombudsman’s recom-
mendation, the latter may escalate the matter by sending a copy of his/her
report to the Prime Minister and may thereafter make such report to the House
of Representatives on the matter as he thinks fit (article 22(4) of the Ombuds-
man Act).
Article 11 of the ECLSG deals with «Legal Protection of Local Self-Gov-

ernment» and grants «the right of recourse to a judicial remedy» to a local
council to protect its rights at law. In this sense, a similar provision is contained
in article 27 of the Local Councils Act, which provides that: «The Mayor shall
have the legal and judicial representation of the Council together with the Ex-
453
ecutive Secretary and they may sue and be sued on its behalf even where the
case refers to acts done prior to the commencement of their term of office or
appointment as the case may be.»
Article 38 of the Act grants a local council the right to a judicial remedy when
it provides that: «Local Councils shall have the right to challenge in court any
decision which in any way interferes with the free exercise of their powers grant-
ed by this Act.» This is because a local council is established as a body corporate
by law having a distinct and separate personality. A local council can sue any
person, whether physical or moral (companies, public corporations, foundations,
etc.) and central government as well. Indeed, there have been cases where a local
council has sued a Minister. The right of a local council to protect its interests in
a judicial forum is extended also before quasi-judicial statutory tribunals where,
by and large, the same procedure adopted by a court of law applies.
Malta does not yet have a system of administrative courts but the ordinary
courts of civil jurisdiction have administrative competence. Such is the case
with judicial review under article 32(2) and 469A of the Code of Organization
and Civil Procedure. Furthermore, judicial review of administrative action can
be exercised through the Administrative Review Tribunal established by the
Administrative Justice Act (Chapter 490 of the Laws of Malta) and by several
quasi-judicial statutory tribunals such as the Environment and Planning Review
Tribunal established by article 40(1) of the Environment and Development
Planning Act (Chapter 504 of the Laws of Malta) and the Financial Services
Tribunal established by article 21(1) of the Malta Financial Services Authority
Act (Chapter 330 of the Laws of Malta).
For what concerns constitutional protection of local self-government, the
Local Councils Elections Regulations, 1993 – which form part of the Act – pro-
vides in regulation 116 that the Constitutional Court may inquire into any ques-
tion relating to the right of any person to be or to remain an elected councillor.
Furthermore, regulation 122(1) states that all questions regarding the right of
any person to be or remain a councillor are to be referred to and decided by this
court. Regulation 22(5) provides, with regard to nomination of candidates for
local council elections, that if there is an objection to a candidate, the latter may
appeal therefrom to the Court of Appeal which has to deal with such sworn ap-
plication with the utmost urgency.
11.1. The Local Councils’ Association of Malta and its EU dimension
The international interests of Maltese local councils are in the first instance
represented by The Local Councils’ Association of Malta (LCA) which was
established by law in 1994. The Association represents all local councils with
454
the aim of protecting and promoting their common interests in Malta and over-
seas, as well as in international associations of local government authorities.
The Association is a juridical body having a distinct legal personality. The LCA
is totally funded by central government.34
The role of the LCA presently is very limited and does not as yet have the
tools to sustain such a role. The LCA is also empowered to represent all local
councils in international affairs and since its inception has attempted to take an
active role in international and regional organisations. Namely, the LCA is in-
volved in selecting the members of the EU Committee of the Regions (herein-
after CoR). The LCA has also been approved as a Supporting Structure with the
European Commission.
11.2. The Committee of the Regions
Since 2004 Maltese local government representatives (mayors and deputy

mayors) have sat on the EU CoR. Malta’s delegation in the CoR is composed
of four full members and four alternate members.35 The Members of the CoR
are appointed by the Minister responsible for Local Government on the advice
of the Executive of the Maltese LCA, and they are elected from amongst all
elected Mayors and Councillors in Malta and Gozo. In choosing members for
the CoR the LCA draws up a list of five members and five alternates taking into
account political, territorial and gender balance criteria. The list of candidates
is sent to the ministry for justice and home affairs which presents it for ap-
proval to the Government of Malta. The national government takes a decision
on the basis of the proposed list of members and submits it the Council of Min-
isters of the EU which appoints CoR members.
11.3. The Pact of Islands
Maltese Local Authorities are also part of the Pact of Islands signed by 40 Euro-
pean island politicians on 12 April 2011, making the political commitment to
achieve the 20-20-20 objectives of the European Union for 2020. Five Maltese Lo-
cal Authorities signed the Pact on that occasion. The Maltese Local Authorities
were represented by members of the LCA. This pact is an initiative parallel to the
Covenant of Mayors (on CO2 emmissions reductions and abatement) and was part
of the European Union Sustainable Energy Week. The Maltese Local Authorities
will be assisted in implementing their obligations under the Pact by Paragon Europe,
in the framework of the EU-funded IslePact project which launched the initiative.36
34
http://www.lca.org.mt/pages/iseSinglePages.asp?m=12
35
36
http://www.lca.org.mt/pages/iseFullArticle.asp?id=395 Brussels Press Release 13/04/2011.
455
11.4. Local government and EU funding
Local councils have signalled an early interest in accessing EU funds; how-

ever, the LCA has complained that it does not have the resources to undertake
this process successfully. In order to assist them in this task,37 in 2009 the Mal-
ta EU Steering and Action Committee (MEUSAC) signed a memorandum of
understanding with the LCA in which it became committed to: assisting coun-
cils in the choice and planning of proposals for co-financing, in the selection of
the most adequate programmes to acquire funds, and in the preparation of ap-
plications. MEUSAC also made a commitment to set up a help desk for par-
ticular local councils. Meanwhile, the local councils were asked to commit
themselves to taking part in project management training and in EU-related
MEUSAC activities. In February 2009 in line with the LCA recommendations
of 2008 a Co-Financing Fund was also set up, through which the government
could assist in projects that required co-financing in order to be implemented.
In the first two months of 2009, 18 councils applied through MEUSAC’S fund-
ing unit, set up in November 2008, for projects co-financed by the EU. By 2009
34 local councils had taken part in 69 projects, benefitting from 15 programmes
amounting to €1.8 million. The government in that year also allocated €303,000
in co-financing assistance to the LCA.38 It was conjectured by central govern-
ment that If the councils made good use of this assistance, it would mean that
in 2009, they would benefit from about €3 million from the EU39. Government
made available 500,000 for co-financing purposes in 2010.40
The region that has benefitted the most from EU funding is that of Gozo and
indeed nearly half the funds awarded by the European Union to local councils
have been picked up by localities in Gozo. Until October 2010 Gozitan local
councils obtained 46.45% of the total received by all local councils for projects
completed by that date.
12.1. Landmark cases and decisions on local government:
1. Xewkija Local Council v. Planning Authority et, decided by the Court of

Appeal on 6 October 2000.
2. Emanuel Farrugia v Carmel Degabriele et, decided by the Court of Ap-
peal on 13 February 2002.
37
38
Times of Malta, 28/02/2009.
39
This statement could not be verified.
40
��
MEUSCA Co Financing fund for local councils: http://www.meusac.gov.mt/fme/749/de-
fault.aspx
456
3. Mellieha Local Council et, v. Central Mediterranean Development Cor-

poration Limited et, decided by the Court of Appeal on 23 June 2006.
4. Marsascala Local Council v. Malta Environment and Planning Author-
ity et, decided by the Court of Appeal on 29 January 2009.
5. Philip Seguna et v. Zebbug Local Council, decided by the Court of Ap-
peal on 3 October 2008.
6. Geocon Limited v. Siggiewi Local Council et, decided by the Court of
Appeal on 3 March 2006.
(A) Books
Bajada, Joseph Mgr.: Gozo’s Government: The Autonomy of an Island through

History, Gaulitana, Rabat, Gozo, 2005.
Schiavone, Mario J.: Il-Kunsilli Lokali 1993-1994: Storja-Fatt-Cifri, Pubblika-
zzjoni Indipendenza, 1994.
(B) Papers
Pirotta Godfrey, A.: «A New Creation or an Image and Likeness? The Mal-
tese Experience of Establishing Local Government in a Centralised Micro-
State», Public Organization Review: A Global Journal, Kluwer Academic
Publishers, 1:245-260 (2001).
Frendo, Henry: «Local Government in Malta», in: North/South Local Democ-
racy: the European Charter of Local Self-Government in Action, Malta 14-
16, Studies and Text, No. 54, Council of Europe Publishing
Gulia, Wallace Ph.: «Local Government in Malta», paper presented at the V
General Assembly of the Mediterranean Social Sciences Research Council
held at the American University of Beirut, Lebanon on September 12-16,
1966.
(C) Official Publications
Department of Information, Kunsilli Lokali: Ic-Cittadin jersaq izjed lejn il-pot-

er, Government Printing Press, January 1992.
Office of the Prime Minister of Malta: Malta Policy for Local Governance
2009, Government Printing Press, 2009.
457
Department for Local Government, https://secure2.gov.mt/localgovernment/

home?l=1
Local Councils’ Association, http://www.lca.org.mt/pages/iseMain.asp
Local Councils, http://www.lc.gov.mt/
Local Enforcement System, http://les.gov.mt/contraventions.aspx
458
Chapter 19:
LOCAL GOVERNMENT IN THE NETHERLANDS
Ine VAN HAAREN-DRESENS
1.1. Structural historical trends
In 1543, the unity of the Netherlands was established by Emperor Charles

V. The new state covered roughly the area of the current Benelux. The centre
of the new state was in the south, with Brussels as its capital. After a rebellion
under the reign of Emperor Philip II, son of Charles V, in 1579 the seven Prot-
estant provinces of the Low Countries joined in the Union of Utrecht and de-
clared their sovereignty. After the occupation in 1795 by the Patriots and the
French, the Low Countries came under the reign of Napoleon and his family.
From 1815 until 1830, the Belgian provinces were part of the Kingdom of the
Netherlands, leaving it again in 1830.
In the Kingdom there were parishes, villages, towns, districts and other territo-
rial units. As a matter of fact, local communities with their own authorities were
known long before there was a State and a Constitution. That is why in constitu-
tional doctrine, the autonomous competences of provincial and municipal gov-
erning bodies are considered to belong to them and are not attributed or delegated
but only recognized by the Constitution. In 1848, the great statesman Johan Ru-
dolph Thorbecke gave the Kingdom a new Constitution inspired by German ad-
ministrative theories. In 1917-1919, through the inclusion of the general right to
vote in the Constitution, the democratic principle was strengthened greatly. The
Dutch Constitutions of 1814-1815, as revised from then until today, are good
examples of types of historical constitutions. Developments until the present day
can be described as amendments of the Constitutions of 1814-1815 and 1848.
Two new «organic» laws drafted by Thorbecke, the Province Act and the
Municipality Act, came into force a few years after the Constitution of 1848.
They were made to regulate the administration of the modern provinces and the
municipalities, respectively. The Municipality Act of 1851 has been in force for
459
ine van haaren-dresens
almost 150 years. In the early days of its existence, there were 11 provinces and
approximately 1,200 municipalities. At present the 11 provinces still exist; a
new one, named Flevoland and consisting of land gained from the sea, was
added in 1986. Over time, the number of municipalities has been brought back
to 418.1 A new Province Act, as well as a new Municipality Act, came into
force in 1994. These statutes were amended fundamentally again in 2006.
1.2. Key prospective trends and major political issues
A significant political issue nowadays is how to strengthen public participa-

tion in provincial and municipal administration. The turnout for the last mu-
nicipal elections (2010) was 54.1%; for the 2011 provincial elections2, it was
55.9%.3 Politicians, at both the central and the local levels, are concerned about
citizens’ interest in politics and look for ways to stimulate their participation
and interest, as these are considered essential for public acceptance of political
decisions, as well as for the shared responsibility for the local community.
The position of the mayor is also a theme that comes under discussion on a
regular basis. The mayor is not elected, but rather appointed by the central gov-
ernment, which is an exceptional situation in Europe. The current situation in
the Netherlands, however, does not differ much from that in other European
countries. In practice, the local representative nominates two candidates to the
Minister of the Interior, and the first candidate will be appointed; only in very
exceptional circumstances and with due explanation may the Minister disre-
gard the nomination. Nevertheless, until now there has not been a political ma-
jority in the national Parliament so as to introduce the elected mayor into con-
stitutional law. The only provision that has been made is the abolishment of the
constitutional requirement of an appointed mayor, but the appointment provi-
sions in the Municipality Act still stand.
2.1. Form and units of local government in the Netherlands
The form of government of the (European part of) the Netherlands is that of
a decentralised, unitarian state. This means that, according to the Constitution
1
On 1 January 2011. Source: Netherlands Central Bureau for Statistics, Heerlen (CBS)
http://www.cbs.nl.
2
Preliminary result; 2 March 2011 was voting day for the new provincial councils, and the
turnout was much better than in the 2007 provincial elections (then 46.3%). This can be ex-
plained by the fact that the 2011 elections were considered to be important.
3
Cf: In the 2009 elections for the European Parliament, the turnout was 38.6%, and in the
2010 elections for the Dutch Parliament (House of Representatives), the turnout was 75.4%.
Source: Electoral Council http://www.verkiezingsuitslagen.nl.
460
local government in the netherlands
of the Kingdom of the Netherlands (Grondwet voor het Koninkrijk der Neder-
landen), in addition to the national public authority, there are other public au-
thorities with their own competences and their own constituencies. These other
public authorities have competence for a specific territory or for a specific
function (e.g. water boards). The ones with a general competence to govern
their own territories are those of the provinces (provincies) and municipalities
(gemeenten). In Dutch constitutional law, the State, the province and the mu-
nicipality are considered public legal entities that act through their governing
bodies. The representative governing bodies at the local level are the Provincial
Council (Provinciale Staten) and the Municipal Council (Gemeenteraad or
Raad). The executive bodies for the province are the Board of the King’s Com-
missioner and Provincial Aldermen (College van Gedeputeerde Staten) and the
King’s Commissioner (Commissaris van de Koning), whereas the municipali-
ty’s executive organs are the Board of Mayor and Aldermen (College van
Burgemeester en Wethouders) and the Mayor (Burgemeester).
2.2. Tiers and figures
Although strictly speaking it is not correct, as there is no constitutional hier-

archy amongst them, the provinces and the municipalities are often still referred
to as «lower» bodies, with respect to the national State as the «higher» body.
One could define this structure as municipalities being the first tier and prov-
inces the second tier, with the State as the third tier of government. On 1 Janu-
ary 2011 there were, as stated before, 12 provinces and 418 municipalities in
the (European part of the) Netherlands, of a total population of over 16.6 mil-
lion persons and with an area of 41.543 km², resulting in a population density
of 491 inhabitants per km².4
The European Charter of Local Self-Government (hereafter referred to as

the Charter: Europees Handvest inzake lokale autonomie) came into force for
the Netherlands on 1 July 1991. The Dutch government first submitted the
Charter to Parliament for implicit approval. The chair of the Chamber of Rep-
resentatives (the Second Chamber: Tweede Kamer), however, informed the
government that this Chamber thought it necessary for the Charter to be sub-
mitted to Parliament for its explicit approval, which was finally given in the
4
Source: Dutch Central Bureau for Statistics, Heerlen (CBS); http://www.cbs.nl/NR/rdon-
lyres/E502BD0A-CA5B-4273-BA27-BF4058712361/0/2010b55pub.pdf d.d. 15-02-2011.
461
autumn of 1990. The act that contained this approval was published on 15 No-
vember 1990 and entered into force the next day. Then the act of acceptance
was deposited with the Secretary General of the Council of Europe, and accord-
ing to its Art. 15, paragraph 3, the Charter came into force for the Netherlands
on 1 July 1991.
The act of acceptance contained a declaration by the Dutch government say-
ing that the Charter would apply to Dutch provinces and municipalities. This
contribution, however, will focus on local government, i.e., on municipalities.
The central government also declared that it considered Art. 9 of the Charter to
apply only to the financial resources of local authorities; this declaration was
meant to ensure that municipalities and provinces could not claim additional
financial support from the State for employment conditions of their staff, as per
Art. 6, paragraph 2 of the Charter.
In addition to the declarations, the Netherlands voiced reservations regard-
ing four paragraphs of the Charter: Art. 7, paragraph 2; Art. 8, paragraph 2; Art.
9, paragraph 5; and Art. 11. In the latter case, it was thought necessary as there
was no general recourse to the judiciary for local authorities. Although there
still is no general right of recourse, in this author’s opinion the reservation
could be abolished, as Dutch law nowadays gives provinces and municipalities
the right to appeal to a judge when a decision concerns their interests. To date,
The Netherlands has withdrawn neither the declarations nor the reservations.
According to Dutch constitutional law, the provisions of a concluded treaty
are part of its legal order. For the applicability of treaties, the system of monism
is followed, meaning that the treaty is adopted in national law and its provisions
are therefore legally binding. The treaty thus has internal effect, so transforma-
tion into national legislation is not required. This system is not laid down in
written law but has been accepted in jurisprudence. All treaty provisions are part
of the Dutch legal order; as national rules, however, not all provisions are of the
same nature. The Dutch Constitution declares that provisions that are univer-
sally binding, i.e., that are self-executing, must be published before they will be
binding. After publication, they have direct effect without any intervention re-
quired of the legislature. Public authorities, whether legislative, executive or
judiciary, must apply them, and citizens can invoke them before a judge. In the
final instance, it is the judge who decides in an actual case whether a provision
has direct effect or not. He can base his judgment on the text, the nature, the
tenor and/or on the history of the clause; the intention of the treaty-making par-
ties can also be taken into consideration, although this intention is not decisive.
3.2. Constitutional position of local authorities
Local government has its own chapter in the Dutch Constitution. Chapter 7
contains provisions regarding the position of local public authorities within the
462
Dutch unitarian state. The Constitution says that the regulation and management
of their own «household» is left to the provinces and municipalities.5 In particular,
municipalities were established long before the State was born: they do not take
their competence from attribution or delegation by the Constitution or the legisla-
ture, but have long been entitled to self-government.6 This is the foundation for the
competence that is called the autonomy of local authorities in the Netherlands.
Regulation and management can, in accordance with the Constitution,7 also
be required of local authorities through legislation passed by a higher public
body. Called medebewind in the Dutch judicial system, this «mandated regula-
tion and management» can be a countercheck to autonomy. The term «local
self-government» as used in the European Charter of Local Self-government
refers to both Dutch autonomy and required legislation and management.8
The Dutch Constitution guarantees, as demanded by the European Charter, that
the members of the provincial and municipal councils, which exercise the compe
tence to regulate, are freely elected by secret ballot on the basis of direct, equal and
universal suffrage.9 The Province Act and the Municipality Act correspond to
these guarantees for democratic legitimization; these «organic» statutes also say
that the executive boards of provinces and municipalities, as well as the Queen’s
commissioner and the mayor, are responsible to their respective councils.10 The
Constitution also prescribes that the organisation of provinces and municipalities
and the composition and competence of their boards are regulated by law.11 At
present, these «organic» statutes are the Province Act (Provinciewet) and the Mu-
nicipality Act (Gemeentewet), which came into force on 1 January 1994.12
3.3. Statutory law
Both the constitutional competence for autonomy and medebewind are laid
down in the Province Act and the Municipality Act.13 Until 2006, according to
these Acts, primacy in legislation in Dutch municipalities and provinces lay
with the respective councils, whereas the executive management was allotted to
the respective executive boards. In 2006, the «organic» statutes were amended
in order to introduce a more dualistic system in local government. At present,
the council is entrusted with the legislative power, whereas the boards are en-
trusted with the executive power.
5
Art. 124, par.1.
6
E.g., Art. 94 of the Constitution of 1814.
7
Art. 124, par. 2.
8
Art. 4, pars. 2 and 4 for autonomy; par. 5 for medebewind.
9
Art. 129 of the Constitution.
10
Arts. 169 and180 of the Municipality Act.
11
Art. 132, par.1.
12
Stb. 1994, 762 for the Municipality Act; Stb.1993, 668 for the Province Act.
13
Art. 105 of the Province Act; Art. 108 of the Municipality Act.
463
Since 1994, the General Act on Administrative Law (Algemene wet bestu-
ursrecht or, abbreviated, Awb) is in force. It contains numerous procedural
provisions that are supposed to ensure good administration. These provisions
apply to all public authorities, of both the central and the local governments, as
well as to private organisations entrusted with public competence.
The Municipality Act, the Province Act and the General Act on Administra-
tive Law are general parliamentary laws. In Dutch constitutional doctrine, there
is no formal hierarchy among parliamentary laws. The Province Act and the
Municipality Act,14 however, declare that specific laws which require regula-
tion and management from provinces or municipalities (medebewind) or which
alter their competence, must correspond with the respective acts, unless a dif-
ference is required by a special public interest. These status provisions are
meant to give the Province Act and the Municipality Act special significance in
relation to other laws.
Dutch local authorities depend on the State for most of their financial means.
The allocation of funds is regulated by the Financial Relations Act (Financiële
verhoudingswet). Notwithstanding legal provisions that must guarantee decen-
tralisation, the principle of «who pays, decides» unfortunately creates strong
dependency of local authorities on the State.
3.4. Local regulation
Both the Constitution and the Municipality Act stipulate that the municipal
councils make their own regulations concerning their own local «household».
These regulations are called General Local Regulations (Algemene plaatselijke
verordeningen or, abbreviated, APV); they contain numerous provisions, espe-
cially those on public order and safety. The Association of Dutch Municipalities
(VNG) has made a model APV that individual municipalities can use with all the
amendments they consider necessary in their respective local situations. Whereas
the APV is made on the basis of the autonomous competency of a municipality, in
addition to it, each municipality has many local regulations on specific topics le-
gally based on their delegated competencies or medebewind. These specific regu-
lations concern all areas of local competences and therefore are varied in nature.
3.5. Position of the capital
In the Netherlands there is no legal foundation for the status of Amsterdam

as the State capital. The Constitution, however, recognizes Amsterdam as the
capital city of the Kingdom. There is not nor has there ever been a procedure
Arts. 113 of the Province Act and 115 of the Municipality Act.
14
464
for designating the capital of the country. Amsterdam became the capital around
1800, when Louis Napoleon became King in the Dutch territories. In 1814,
Amsterdam was named capital in the newly-made Constitution. Nevertheless,
in 1815, as a result of the reunification with the southern part of the Nether-
lands, it lost its constitutional status, but Amsterdam remained the State capital.
The importance of the capital is more of a historical, social, cultural and eco-
nomical nature than of a legal one. Amsterdam is not the seat of the Govern-
ment of the Kingdom, either: the Hague houses the Government as well as the
Dutch Parliament. The governmental and the royal status of The Hague have no
legal foundation, either. Nevertheless, The Hague has been the seat of all Dutch
governments since the Kingdom was founded, and even of its predecessors.

AUTHORITIES
4.1. Powers of local authorities
Local authorities’ powers are not attributed to them by the Constitution or

the legislature: the Constitution simply recognises the competences they al-
ready had before the State existed.15 This is the foundation for local autonomy
in the Netherlands. This autonomy can be characterized as the discretionary
responsibility to govern, with both legislative and executive powers, the mu-
nicipal or the provincial «household».
The term «household» (huishouding) was introduced in the early nineteenth
century and at that time had a clear, static meaning, as the State, the provinces
and the municipalities were thought to have their own natural spheres of com-
petence. The nature of a matter determined the sphere of competence to which
it belonged. Public authorities were not entitled to enter the sphere of compe-
tence of another authority. When public responsibilities increased, however, it
became more and more difficult to assign a responsibility to a specific sphere
because often more than one sphere was involved in a matter. Furthermore, it
was acknowledged that responsibilities may vary over time. Thus, the concept
of three static, separate spheres was replaced by the principle that a duty should
be exercised by the authority that can do so most appropriately. Meanwhile, the
meaning of the term «household» as a criterion for the competence of local
authorities became unclear.
At present, the «household» is the sphere of public interest that a province
or a municipality can oversee. This sphere is restricted by the private interests
of citizens, on the one hand, and by legislation of public bodies of a higher tier,
on the other. Public bodies of a higher tier can reduce the sphere of autonomy
15
E.g., Art. 94 of the Constitution of 1814.
465
of a lower body by taking over responsibilities from the latter. Unfortunately,

in recent years the State has taken over a good number of responsibilities from
local authorities, often appealing to the principle of «who pays, decides».
As explained in section 3.1, above, in addition to the autonomous compe-
tences, legislative and executive responsibilities can, in accordance with the
Constitution16, also be required of local authorities through legislation passed
by authorities of a higher level. This delegation of responsibilities (medebe-
wind) is required by specific statutes in the various fields of public administra-
tion. Medebewind is often used after the State has taken over responsibilities
that, until then, had been considered to be those of «lower» authorities.
4.2. Competences and responsibilities
There is no listing of the various responsibilities of local authorities. Na-

tional legislation can attribute responsibilities to governing bodies of munici-
palities or provinces, as may provincial regulations, as well. According to the
Municipality Act, local councils have regulatory power, decide on general pol-
icy and control the executive board. This board wields executive power, includ-
ing that of daily management. In addition to his responsibilities as a member of
the executive board, the mayor is entrusted with competences to ensure public
order,17 as well as with those for management and regulation in local emer-
gency situations.18 The mayor also represents his municipality.19
In the Dutch decentralised State, the underlying principle for the assignment
of responsibilities is that a duty should be exercised by the authority that can do
so most appropriately. In accordance with this idea, the Minister of the Interior
is obliged by law to encourage decentralisation, and responsibilities may be al-
located to higher-tier bodies only if this is required for reasons of efficiency and
economy.20 Therefore, if the State wishes to allocate a responsibility to a high-
er-tier body, the legislature must justify why that responsibility cannot be exer-
cised by a lower body.
The different spheres of public activities, however, are not defined in such a
way that each is assigned to one specific authority and excluded from the do-
main of another. If a local authority were to take action in spheres that cannot
be considered as belonging to its «household» or to its responsibilities in mede-
bewind, this action would probably be annulled if the municipality were judged
as having gone against the State’s policy regarding that sphere or as having
16
Art. 124, par. 2.
17
Arts. 172-174a of the Municipality Act.
18
Arts. 175 and 176 of the Municipality Act.
19
Art. 171 of the Municipality Act.
20
Arts. 115 of the Province Act and 117 of the Municipality Act.
466
entered into a sphere which is considered to be the State’s. For example, in

1990 Dutch municipalities that took action against apartheid in South Africa by
deciding not to go into business with companies related to the South African
regime were confronted with a reversal on the grounds of violation of the public
interest because their decisions were considered to be in conflict with Dutch
foreign policy concerning South Africa.21
In principle, autonomous responsibilities can be considered full, compre-
hensive and exclusive. As said before, the «household» is restricted by the pri-
vate interests of citizens, on the one hand, and by legislation of public bodies of
a higher tier, on the other. In the Netherlands, however, in the end it is the cen-
tral authority—i.e., the State—which determines the scope of the local «house-
hold», for the State can decide to take over responsibilities that until then have
been considered as belonging to the lower authorities’ autonomous compe-
tence. However, it would be unconstitutional for a State, whose Constitution
recognises local autonomy and which has entered into a treaty that ensures lo-
cal autonomy, to take over a substantial part of what has traditionally always
been considered the heart of the «household» of local authorities.
With respect to the fullness, comprehensiveness and exclusiveness of re-
sponsibilities, it should also be noted that public authorities of the higher tier
supervise the decisions of authorities of the lower tier. This form of control can
have a substantial impact on local and regional authorities, as it includes the
supervision of autonomous activities, in terms of both their legality and their
expediency. In the Dutch legal system, supervision is considered a means to
equalise the principles of unity (the sovereign State) and decentralisation (the
decentralised State).
5.1. The council
The municipal council is elected directly by citizens of the municipalities

who are 18 years of age and older. The number of members of a council de-
pends on the number of inhabitants and varies from nine members in munici-
palities of fewer than 3,001 inhabitants to 45 in cities of more than 200,000
inhabitants.22 As for provincial councils, there are 39 members if the province
has fewer than 400,001 inhabitants and up to 55 members if the province has a
resident population of more than 2,000,000.23 In order to open a meeting of a
council, at least half of its members must be present.
21
Government («Crown») decisions of 28 December 1990, Stb. 1991, nos. 25-37.
22
23
Art. 8 of the Province Act.
467
Since the Act on Dualisation of the municipal administration came into

force in March 2002,24 the legislative power in municipalities has been assigned
to the council, as have been the powers to set general policy and to control the
executive board.
The council establishes the General Local Regulation (APV) of the city
and other important regulations. It also sets the budget, as well as the annual
account. The council establishes general policy in a broad range of areas,
such as transportation, social welfare, health, education, economy, environ-
ment, housing and spatial planning, and decides on such major issues as
changes of municipal borders, inter-municipal cooperation and major invest-
ments. The council can also delegate part of its own competences to other
governing bodies. Some responsibilities, such as the setting of the budget or
the application of punitive measures in municipal or autonomous regula-
tions, may not be delegated to other bodies but must be executed by the
council itself.25
5.2. The executive board
The executive board of a municipality consists of the mayor and the alder-
men. The number of aldermen is 20% of the number of members of the coun-
cil, with some slight variations.26 The executive board of a province consists of
the Queen’s Commissioner and from three to seven provincial aldermen.27 The
aldermen are nominated by the respective council but not necessarily from
amongst its members. The council decides upon the actual number of alder-
men within the mentioned range. If they are council members, they lose their
membership upon their nomination as aldermen. The executive is accountable
to the council because of the democratic basis of the latter. The executive
board and the mayor may delegate the execution of their own decisions to
commissions; the responsibilities for local emergency situations, however,
cannot be delegated.28
The board of mayor and aldermen has executive governing power. Before
dualisation, there was no clear division in power, as de jure all power was as-
signed to the council and the executive board acted as the daily board; the ex-
ecutive board, however, governed the municipality de facto, whereas the coun-
cil controlled the executive board. Dualisation was meant to bring theory and
practice into harmony and make both governing bodies responsible for the
competences explicitly assigned to them.
24
Act of 28 February, Staatsblad 2002, 111 and 112.
25
26
Art. 36, par. 1 of the Municipality Act.
27
Art. 35a, par. 1 of the Province Act.
28
468
5.3. The Mayor
Dutch mayors have always been and are still appointed by the central gov-
ernment. In recent years, the councils’ influence on nominations has increased,
and nowadays they have the legal right to propose two candidates; in general, a
council’s proposal to the Minister of the Interior for the nomination of a candi-
date is decisive. As pointed out already, the nomination of mayors in particular
has been and will continue to be an item of much discussion in both politics and
literature, as it is considered to be old-fashioned and non-democratic. Of course
it would be more democratic to have the mayor elected, either by the citizens or
by the council. Whether this would also improve or at least maintain the quality
of the office is a question that is answered according to the political opinions on
the matter. It can be said that in practice, democratic legitimacy is not really at
stake, as de facto, nowadays, the council’s opinion is decisive. De jure, how-
ever, the central government can intervene.
The mayor is appointed by the central government for a term of six years
and may be reappointed successively for an unlimited number of such terms.
For a reappointment, the council must submit a proposal to the Minister of the
Interior. The dismissal of the mayor by the central government is possible on
the request of the council, if the mayor has lost the confidence of the council.
Of course, a mayor can also resign, or the government can dismiss him or her
on serious grounds other than loss of the council’s confidence; in such a case,
the council will first be consulted.
In the Netherlands, the importance and scale of inter-municipal cooperation

have grown over the last decades. The reasons for inter-municipal cooperation
are diverse. Cooperation is often more efficient and economic than independent
action. Expertise within the civil service system can be concentrated, with in-
creased specialisation, cheaper purchasing and more efficient use of materials.
In many fields, decision-making extends beyond municipal borders, and mu-
nicipal boards are therefore obliged to cooperate with boards of neighbouring
municipalities, since decisions have consequences for and effects on multiple
municipalities or on an entire region.
Inter-municipal cooperation is used in many areas, e.g., housing, town plan-
ning, environmental policy, fire prevention, sports and cultural facilities, refuse
collection, public transport, traffic, education, public health, accounting and
controlling chambers, and appeal and complaint boards.
The Dutch Constitution has provided a basis for inter-municipal cooperation
since 1922. The current Constitution says that on the basis of a parliamentary
act, provisions must be made for affairs of two or more public bodies and that
469
a new public body can therefore be instituted.29 In the latter situation, the or-
ganisation and competences of that body as well as those of its boards must be
regulated by a statute that can also attribute regulatory competence to the gov-
erning bodies of the new body, as well as provide for their administrative super-
vision.30
The relevant parliamentary law is the 1994 Act on Cooperation.31 In addi-
tion to cooperation on the basis of the Act on Cooperation, local authorities can
and do cooperate on the basis of private law. The right to cooperate applies to
all types of local authorities. They can cooperate within their own tier but also
with one or more bodies of another tier. The Act on Cooperation stipulates that
the cooperating partners must make their own regulations for each cooperative
arrangement.
As for cooperation based on public law, in the Netherlands there are four
types based on the Act on Cooperation. The first type, the «public body» (open-
baar lichaam), is the strongest, as it has the status of a legal entity. The partici-
pating municipalities can delegate competences, including legislative, to this
body. The Act on Cooperation contains provisions for its organisation and
management. This type is often used for health, employment or environmental
services. The second one is called «joint body» (gemeenschappelijk orgaan).
This governing body is not a legal person and cannot have legislative compe-
tence. Only the competence to take decisions can be delegated. It is often used
for inter-municipal appeal or complaint boards or for cooperation on a single-
issue matter such as housing.
The third type, the «central municipality» (centrumgemeente), can be used
if the cooperating municipalities wish to assign the actual execution of some of
their competences to one of the municipalities. This type of cooperation is used
mainly when partners wish to have civil servants of a larger municipality (i.e.,
the central municipality) act on behalf of the smaller neighbouring municipali-
ties (e.g., for refuse collection or for the management of a public swimming-
pool). The legal basis of the cooperation is that of mandate given by the par-
ticipants to the civil servants of the central municipality. The last type, called
simply «mutual regulation» (gemeenschappelijke regeling) is the agreement on
the basis of the Act on Cooperation with no delegation or mandate of compe-
tences.
Another form of cooperation is a «functional commission» (functionele
commissie). This is based on the Municipality Act and must be instituted by
municipal regulation; competences can be delegated to it by the governing
body to which the competences were originally attributed. These committees
are meant to have competences in a specific area. If two or more municipalities
29
Art. 135 of the Constitution.
30
Art. 135 in conjunction with Art. 134, pars. 2 and 3 of the Constitution.
31
Wet gemeenschappelijke regelingen, Staatsblad 1984, 667.
470
simultaneously make the same regulations and institute the same committees,
they can cooperate de facto. In this author’s opinion, the legal basis for this
form of cooperation is extremely weak, as de jure there are not one but multiple
committees, and there are no legally binding obligations to cooperate.
In addition to cooperation on the basis of public law, local authorities can
also cooperate on the basis of private law. They can institute and participate in
private legal entities such as companies, associations and foundations. Never-
theless, the Municipality Act contains a provision which stipulates that mu-
nicipal boards may participate in private legal entities only if the latter are
considered especially necessary in order to care for the relevant public inter-
est.32 Although there has been considerable jurisprudence regarding the ques-
tion of when a private legal entity may or may not be used, the impression that
most municipal boards still do not apply this provision with great strictness is
not unfounded. It should be noticed that private agreements do not automati-
cally contain provisions for political control and responsibility, whereas the
Act on Cooperation does. It is often be said, and not without reason, that inter-
municipal cooperative arrangements are not very transparent and not very
democratic, as there is no possibility for citizens to vote for the members of the
board of a cooperative entity. Accountability is always directed towards the
founding entities.
6. HUMAN RESOURCES
The administrative structure of a Dutch municipality is a joint responsibility

of the local executive body and the council.
In order to execute their powers, the council as well as the executive board—
and the mayor in executing the responsibilities allocated to him as the third
governing body in the municipality—must and do have an administrative staff,
which consists of civil servants who are subordinate to the political bodies and
who have no competences of their own. Since dualisation in 2002, the Munici-
pality Act stipulates that every municipality must have a Secretary to the Board
(gemeentesecretaris), who is the main advisor of the executive board, and a
Secretary to the Council (griffier), the chief executive of the council.33
Both the Secretary to the Council and the Secretary to the Board are civil
servants named in the Municipality Act, the former appointed and dismissed by
the council, the latter by the board.34 All other staff members are civil servants
appointed on a permanent or temporary basis by the council or the board, or
employees working on the basis of a contract for either a set or an indeterminate
32
Art. 160, par. 2 of the Municipality Act.
33
Art. 100.
34
471
period of time. The council has had its own secretary and staff only since du-
alisation. All members of staff are subordinate to either the council (in the case
of the staff of the council secretariat and municipal financial auditors) or the
board (all other staff).35 The respective political bodies also decide upon em-
ployee dismissals and make other decisions regarding employees’ positions,
training, job benefits and so on. In practice, especially in the larger municipali-
ties, the highest-ranking civil servants in charge of the respective departments
of the administrative organisation make these decisions. But they can only de-
cide in representation and under the responsibility of the corresponding politi-
cal body once the relevant competences have been explicitly mandated to them.
The municipal council can regulate the administrative structure of its secre-
tariat, just as the executive board can regulate the administrative structure for
the rest of the municipal organisation.36
Both the council and the board of each municipality are obliged to control
the conditions for the employment of their civil servants or hired staff in a mu-
nicipal regulation. Many of these regulations are based on a model designated
by the VNG, the Union of Dutch Municipalities. The VNG also represents the
municipalities in their capacity as employers in the collective bargaining on the
conditions of service; the employees are represented by trade unions. In case of
conflicts with their employer, municipal employees who are civil servants have
recourse to an administrative judge, whereas employees working on contract
basis must approach a civil judge. Employees of municipalities often stay with
their employer for many years, especially if they are also citizens of that mu-
nicipality. Nevertheless, they can also choose to leave and continue their career
elsewhere, either in another municipality or in another type of public or private
organisation.
7.1. Funding
In general, funding for local authorities in the Netherlands consists of trans-

fers from the central government, taxes imposed by the local authority itself,
revenues from services rendered and revenues from commercial investments
and activities.
As the table below points out, transfers are the most important source of
funding for Dutch local and regional authorities. The transfers are either gen-
eral or specific, proceeding from the central government. General transfers are
provided through the Municipality Fund, instituted by the Financial Relations
35
Arts. 107e, par. 2 and 160, par, 1 sub d of the Municipality Act.
36
Arts. 107e, par. 1 and 160, par, 1 sub c of the Municipality Act.
472
Act (Financiële-Verhoudingswet). Provinces receive transfers through the

Province Fund regulated in the Province Act. The Municipality Fund and the
Province Fund are financed by the government with a percentage of the most
significant central taxes; the government fixes the actual percentage rate each
year, based on the previous year’s financial needs.
With respect to the financing of municipal responsibilities, there is a dif-
ference between autonomous competences and mandated responsibilities. All
transfers to municipalities are meant to contribute towards the expenditures
of the management and regulation of the municipal or provincial household,
i.e., towards their autonomous responsibilities, as well as towards the expen-
ditures of the mandated management and regulation (medebewind). For sev-
eral medebewind responsibilities, decentralised authorities also receive spe-
cific transfers from the central government. These earmarked transfers may
be used only for the expenses of the specific, designated responsibility for
which they were given.
General transfers from the Municipality Fund are not earmarked, and it is
for the municipality to decide how this money will be spent. Tax resources
from the central government as such are not transferred; the central govern-
ment, however, finances the Municipality Fund out of its tax resources: thus,
there is an indirect transfer of national tax revenues to local authorities. Mu-
nicipalities often consider the earmarked and general transfers to be inadequate.
Over the last decades, the tendency has been to replace specific transfers by
adding the amounts concerned to the general grants. This is being done in order
to give municipalities more scope for their own expenditure policy. This prac-
tice increases municipal financial autonomy; generally speaking, however,
there are still many financial strings by which the central government controls
local financial policy.
The State can reduce the general transfers whenever it has financial prob-
lems. Thus, priorities within the central budget influence the amounts allotted
to the general transfer funds. In recent years, as savings on the central budget
have had to be effected, contributions to the funds have suffered from the eco-
nomic situation, as well. In addition to fixing the percentage by which the funds
are provided, the central government also determines de facto the financial situ-
ation of the local and regional authorities by setting the amounts of the specific
transfers; moreover, it decides which competences are to be exercised by the
local and regional authorities in medebewind. In mandated management and
regulation, local and regional authorities often have little or no autonomy in
determining how to exercise a competence; therefore, the central government
actually decides de facto on the expenditures for medebewind activities. In re-
cent years, a considerable number of tasks have been decentralised by the State
and delegated to regional and local authorities, often in the form of medebe-
wind. The corresponding financial support, however, is not always commensu-
rate with the competences provided.
473
7.2. Local taxation
Local authorities can impose taxes and charges as these are defined in the
Municipality Act.37 They range from the municipal dog tax and the tourist tax
to those on sewerage, refuse and parking, to charges for building permits, birth
or death certificates or licenses for sidewalk terraces in front of restaurants or
cafes. The most important tax continues to be the municipal property tax.
The central government that came into office after the May 2002 elections an-
nounced in its Strategic Agreement38 that the municipal property tax would be abol-
ished. This tax is the most important and almost the only source of local income,
although it is still a relatively minor amount in comparison to the funds provided by
the central government. As a result, this intention earned much criticism from both
local authorities and academics. Some have considered it a violation of Art. 9,
paragraph 3 of the European Charter on Local Self-government, as it seriously af-
fects local autonomy, since local authorities are free as to allocate their own tax
revenues and hence can make their own political considerations. The municipal
property tax was imposed on owners of real estate (the owner’s part), as well as on
persons using real estate (the user’s part). Under this system, people living or work-
ing in their own home or building paid both, one as owner and the other as user. In
2006, after much discussion, the user part was abolished. Since then, municipalities
have lost about half of the income from property taxation but have been said to be
compensated by an increase in the transfer from the Municipality Fund.
If a municipality wishes to impose one or more of the taxes allowed by law,
those taxes must be defined in a municipal tax regulation made by the munici-
pal council.39 Specific acts can also allow local authorities to impose other tax-
es, such as the ones mentioned in the Municipality Act, e.g., special environ-
mental taxes (or sewerage taxes) or hunting taxes. Municipalities currently
receive more financing from other resources of their own, such as from mu-
nicipal capital and income-providing assets, than from local taxation.
Municipalities 2009 15%

taxes and charge
15% taxes and charges 34%
other own resources
19% other own resource
19% general transfers
32% general transfers
34% specific transfers
34% specific transfers
Source: http://www.rfv.nl/default.aspx?skin=Rfv&inc=detail&id=1019&dossier_id=&type=publicatie
37
Arts. 219-229 of the Municipality Act.
38
Kamerstukken II, 2001-2002, 28 375.
39
474
As can be seen in the table above, Dutch local authorities depend on the
State for most of their financing. In spite of the legal provisions that guarantee
decentralisation, the principle of «who pays, decides», unfortunately causes a
strong dependency of local authorities on the State. In recent years, often apply-
ing this principle, the State has had influence on many of the autonomous re-
sponsibilities of local authorities.
8.1. Property of local authorities
In the Dutch legal system, there is not a clear distinction between public and
private ownership of goods, as there is in Germany and France, for example.
Dutch public authorities, both central (the State) and local (provinces, munici-
palities, public water boards) are legal entities40 and therefore can own assets.
There is no special form of ownership for public authorities. Civil law governs
the ownership of their assets.
Administrative law, however, greatly influences the legal status of goods
owned by public authorities, insofar as these goods have a public function, i.e.,
they play a role in the public interest. These res publica are used as res omnium
communis.
Public authorities can own both moveable and non- moveable goods, as well
as tangible and intangible ones. Goods considered to have a public function can
be named ‘public goods’; these goods can be divided into those «public» by
nature, by custom or, by a decision of the municipal council, destined for gen-
eral usage by the public, and those that are used as a public institution. The first
category of goods can also be used for specific functions, whether such func-
tions are necessary or optional. Dutch law also recognises the possibility of
withdrawing goods from their public function. This can be effected by nature,
by expiration or by a withdrawal decision of the competent body of the respec-
tive public authority, e.g., by the council of a municipality.
Whereas the ownership of a civil good normally includes its exclusive use
and full possession, in the case of a ‘public good’, these rights are limited be-
cause of its general or public usage. ‘Public goods’ can be characterized as
dominium serviens, as the owner must assure that the goods do answer to their
public function and must accept that they are used by the public. Furthermore,
public authorities must always act according to the principles of good adminis-
tration that are laid down in the General Act on Administrative Law and in ju-
risprudence. There also are some specific acts that contain provisions regarding
40
Art. 2.1, par. 1 of the Civil Code.
475
‘public goods’, such as the Act on Roads, the Air Transport Act, the Ship Trans-
port Act, the Act on the Maintenance of Cultural Heritage, etc.
Some goods can be owned only by the State. The Civil Code stipulates that
the State owns the bottom of the territorial sea and the Waddensea.41 The Civil
Code also contains a general provision which says that real estate that are main-
tained by a public authority are presumed to be owned by that authority.42
For financial assets, there is specific regulation regarding the way in which
these assets may be invested (the Act on the Financing of Local Public Au-
thorities). Of course, local public authorities must also respect E.U. regulations
concerning tenders and notification.
8.2. Assets of local authorities
In civil law, a legal entity as such is the owner of goods, so in the case of a
local authority, the municipality as a legal entity can own assets. A legal entity
acts through its governing bodies. Administrative law stipulates which body
within the municipality is competent to act. According to the Municipality Act,
the mayor represents the municipality.43 The competence to decide about buy-
ing, selling, renting, lending, etc., lies with the municipal council. When the
council has taken a decision, the executive body (the board consisting of the
mayor and aldermen) can execute the decision, e.g. in finalizing the agreements.
Civil law governs the acquisition of ownership, and there are no special
procedures for local authorities’ acquisition of ownership except for the possi-
bility of expropriation of goods in the general interest. In case of expropriation
by a municipal authority, the municipal council must declare that the act is
necessary in the general interest. According to the Expropriation Act, the judge
must then rule upon the expropriation. Apart from emergency situations, the
municipality must certify the indemnification of the owner prior to the judge’s
decision. The central government can expropriate municipal assets in the gen-
eral interest. Compensation must be provided. Under normal circumstances,
requisition of municipal assets by the State is not possible; only in times of war
or other emergency situations does constitutional emergency law contain spe-
cific provisions for the requisition of goods by public authorities. In the case of
an expropriation, the council decides whether it is necessary in the general in-
terest, whereas the judge actually rules upon it.
On the other hand, and according to the Act on Preferential Rights for Mu-
nicipalities, should a landowner wish to sell his property, the municipality has
a privileged status: the land must be offered to the municipality first.
41
Art. 5.25 of the Civil Code.
42
Art. 5.28 of the Civil Code.
43
476
Local authorities can join together with other legal entities to exploit munici-
pal assets, and they may also set up commercial firms or other profit-making
corporations. In recent years there has been a tendency towards the privatisation
of institutions or competences of the central government that are thought to be
carried out more efficiently by private organisations. For municipal ownership,
this trend has also been quite obvious: such public utility facilities as electrical
power and gas suppliers have been sold to privately-owned companies, as have
been the services for the collection and disposal of waste and for environmental
maintenance. Public transport has been transferred to privately owned compa-
nies, public swimming pools and other sports facilities have been privatised, and
even public schools have been handed over to private legal persons. Nowadays,
the disadvantages and the political problems of privatisation are becoming clear-
er and clearer, and there seems to be more reluctance to further privatization.
9.1. Control by courts
In the Dutch legal system, municipalities are controlled not only by admin-
istrative authorities of a higher level, but also by courts. The judicial power can
control only the legality of local decisions and regulations. It may not pre-empt
the executive and legislative powers and therefore may not control the expedi-
ency of their decisions and regulations.
As noted at point 3, at present there is still no general right of recourse to a
judicial court for local authorities as stipulated by Art. 11 of the European
Charter on Local Self-government (ECLSG). The reservation made by the
Netherlands still stands, although local authorities have the right to appeal
against the decisions of other public authorities. However, it must be stressed
that, under the General Act on Administrative Law, any penson who has a spe-
cific interest, can make an appeal to an administrative court if he thinks that a
decision of a governmental agency is unlawful, i.e., if it is not consistent with
international, national, provincial or municipal legislation or with unwritten
law. The appeal must concern an individual decision or a decision with a gen-
eral reach. The general binding regulations of a public authority cannot be con-
tested in an administrative court. This right of appeal is also granted to public
authorities whose interests are at stake in a decision.
A local authority might also ask a civil judge in a tort procedure to order the
State to act in accordance with the principles of decentralisation laid down in
domestic law or in the ECLSG. By nature, however, these principles must be
considered as not constituting a direct legal claim.
Until now, courts have also generally been considered unable to examine
Dutch legislation for compatibility with most clauses of the Charter, or to order
477
the State to apply the said Charter, as its provisions are not considered to be
self-executing, i.e., they do not have direct effect. Most clauses are understood
as being addressed to the legislature, which must implement the provisions in
national legislation. It is unclear whether or not some provisions have direct
effect44. If a court should consider a domestic provision to be in violation of a
provision of the European Charter that does have direct effect, the domestic
provision may not be applied. To date, there has not yet been such a decision.
There is some case law stating that provisions of the Charter do not have direct
effect. All decisions concerning the Charter are mentioned below.
9.2. Inter-administrative coordination
In addition to the control by independent courts, there is a system of inter-

administrative coordination or supervision. Higher-tier authorities control the
legislation and management of local authorities, in terms of both their legality
and their expediency or timeliness. Decisions or regulations can be suspended
or be annulled by the higher-tier authority if they are in violation of the law or
in conflict with the general (public) interest. The criterion of conflict with the
general interest allows the central government to influence the policy of local
authorities to a great extent.
A local governing body, as well as a citizen, faced with a reversal or the
withholding of approval of a decision or a regulation, can make an appeal to an
administrative court. In case law, it has been decided that the supervising au-
thority must weigh all relevant aspects. The general interest of the central au-
thority may be in opposition to another general interest of a local authority. In
these circumstances both general interests must be weighed, and courts do ex-
amine whether this has been done appropriately.45 The examination by court,
however, is a marginal one.46
Specific laws can also make it possible for higher-ranking authorities to give
orders of different natures to local authorities on decision-making. This is called
positive or steering control. These kinds of interventions, however, often have great
impact on local policies. Therefore, they are currently under discussion. The trend is
to replace this kind of interference by revitalising the existing provisions for general
supervision based on the Constitution and the «organic» statutes. This system of
general supervision includes preventive or ex ante supervision, ex post supervision,
and provisions for cases of negligence in the discharge of responsibilities.
Preventive supervision means that the approval of a regulation or a decision
can be withheld by the higher-tier authority. In the case of ex post supervision,
44
E.g., Art. 5 and Art. 6, par.2 might be considered to have direct effect.
45
E.g., ABRRvS 22 April 2009, LJN BI1842 (Landsbanki II).
46
E.g., ABRvS 25 September 2002, LJN AE 7993 (Betuwe).
478
a local regulation or decision can be suspended or annulled. If a local body

neglects its duties, the higher-ranking agency assumes the responsibilities. If
the negligence involves the autonomy of a local authority, a special act must be
passed to appoint a commissioner who can govern temporarily; this possibility
has not ever been applied since the 1950’s, when Communists in control of
some municipalities in the north of the country did not govern the municipali-
ties according to law.
According to the Municipality Act and the Province Act47, the budget prin-
ciple is that municipalities and provinces, respectively, must present a balanced
budget. Nevertheless, in accordance with their respective Acts, the municipal
council and the provincial council may accept a deficit.
If a budget is not balanced and will not be so in the next few years, the
higher-tier authority exercising supervision must come into action. Unbalanced
budgets must be submitted to a priori supervision. For an unbalanced munici-
pal budget, the approval of the board of the Queen’s Commissioner and the
provincial aldermen is needed; the Minister of the Interior must approve an
unbalanced provincial budget.48 Balanced budgets are submitted only to a pos-
teriori supervision.
9.3. The Ombudsman
Local authorities are obliged by law to provide for an ombudsman. The ju-
risdiction of the ombudsman extends to cover the way in which all public bod-
ies or their staffs behave towards citizens. Municipal ombudsmen have juris-
diction only over complaints regarding their own municipality. In case
municipalities institute an ombudsman jointly with other municipalities, or if
they join an ombudsman institution of another municipality, the incumbent has
jurisdiction over complaints concerning all cooperating municipalities.
For local public bodies, the obligation to have an ombudsman or ombuds
committee (as used below, «ombudsman» will be used to refer to both that fig-
ure and the ombuds committee) is laid down in the Municipality and the Prov-
ince Acts. Municipal and provincial councils may institute and nominate a local
or a provincial ombudsman of their own or, as stated above, they can also do so
together with other local bodies or join the ombudsman institution of another
municipality. If local bodies do not choose one of these options, the independ-
ent National Ombudsman de jure has jurisdiction; the National Ombudsman is
competent for all 12 Dutch provinces as well as for about half of all 418 mu-
nicipalities, which is in fact the explicit choice of the provincial and municipal
councils concerned.
47
Arts. 189 and 193, respectively.
48
Art. 203 of the Municipality Act and Art. 207 of the Province Act.
479
In addition to national legislation, the councils of municipalities instituting

their own ombudsman or joining other local bodies must create their own local
norms to regulate specific local matters. The Association of Dutch municipali-
ties (VNG) has made a model for local regulation of the ombudsman which
municipal councils can follow or use as the basis for a modified local regula-
tion. Most legal procedural provisions for local ombudsmen and for the Na-
tional Ombudsman are the same or very similar.
The principle of subsidiarity is laid down in the Municipality and the Prov-
ince Acts, which stipulate that the Minister of the Interior must encourage
decentralisation for the benefit of the lower-level authorities, and that respon-
sibilities may be allocated to higher level bodies only if this is required for
reasons of efficiency and economy.49 Thus, if the State wishes to allocate a
responsibility to a body at a higher level than the local authority, the legisla-
ture must justify why that responsibility cannot be exercised by the municipal-
ity. Furthermore, there are provisions that put the Minister of the Interior in
charge of the coordination of State policy affecting local authorities; he is
obliged to oppose decisions or intentions of other ministers that thwart the
decentralisation policy.50
The minister concerned in the central government, as well as the provincial
boards, must, upon request, inform the boards of the municipalities regarding
projects and ideas which will affect local authorities.51 The relevant minister
and the provincial boards must discuss with the boards of the municipalities,
again on request, all central or regional matters that may concern local authori-
ties; both these rights can be denied only if the public interest would be violated
by providing the information or discussing the matter.52
If proposed legislation, either central or regional, requires regulation and
management by municipalities under the medebewind regime, or significantly
alters the responsibilities and competence of local authorities, the minister con-
cerned or the provincial board are obliged to ask the boards of the local au-
thorities or their representative (generally the Association of Dutch Munici-
palities, VNG) for their opinion on the legislative proposal. Only in urgent
matters is it possible to forego previous consultation; in those cases consulta-
tion must take place as soon as possible and the results of the consultation must
be made public.53
49
50
51
52
53
480
On their own part, if requested, the local authorities—in general, the board
of mayor and aldermen, unless specifically asked by the council or the mayor—
are obliged to inform and advise the ministers and the provincial board regard-
ing all matters that concern the municipality.54 Through either central or provin-
cial legislation, the boards of local authorities can be forced to provide the
minister or the provincial board systematically with information on certain mat-
ters.55 A local or provincial authority may ask a civil judge in a tort procedure
to order the State to actually apply the above-mentioned principles laid down in
the Municipality and Province Acts. Nevertheless, their having the character of
principles does not guarantee that these provisions will be considered to contain
rights for local authorities that can be applied by courts.
It should also be mentioned that there is no constitutional court in the Neth-
erlands. In literature and politics there has been a great deal of discussion on
this issue, and although there is a bill pending to amend the system, to date (ac-
cording to the Constitution)56 the judiciary cannot review the constitutionality
of Acts of Parliament and treaties because of the primacy of the legislature.
In Dutch legal litterature and case law, public authorities are not entitled to
invoke human rights, as by their very character these rights are not the domain
of public authorities, whether central or local. As stated above, Dutch local
authorities do not have a general right of recourse to the courts. When a deci-
sion concerns their sphere of interest, however, they can contest the decision in
administrative courts, and they also can go to civil courts for tort procedures.
Although most provisions of the ECLSG must be considered as not self-
executing, and therefore courts do not examine Dutch legislation for compati-
bility with those clauses, other treaty parties may of course file complaints in
case of an alleged breach of the Charter by the Dutch State. Also, the Congress
of Local and Regional Authorities of the Council of Europe can bring alleged
breaches to national and international political attention.
Since the Maastricht Treaty (1994), there exists a Dutch delegation to the
Committee of the Regions. It is composed of mayors, a Queen’s Commissioner
and municipal and provincial aldermen. The chair and vice-chair of the Dutch
delegation participate in the Bureau of the Committee. The members of the
delegation also participate in the COTER, ECOS, ENVE, EDUC, CIVEX and
NAT commissions. The delegation is assisted by secretaries from the associa-
tions that promote their interests, the Union of Dutch Municipalities (Verenig-
54
55
56
481
ing van Nederlandse Gemeenten, VNG) and the Inter Provincial Union (Inter
Provinciaal Overlegorgaan, IPO).
On the other hand, the Dutch local authorities have voices in Brussels
through which they try to influence E.U. policy-making. They are represented
through their associations, the VNG and IPO, which lobby and consult for them
and contact the Dutch delegations to the E.U. as well as the (Dutch) members
of the E.U. Parliament. The VNG as well as «The Big 4» (Grote 4, G4—i. e.,
Amsterdam, The Hague, Rotterdam and Utrecht) have special Brussels offices
in the Brussels House of the Cities. They are members of the federation of the
national associations of European local authorities, the Council of European
Municipalities and Regions (CEMR). The IPO also has, together with the 12
Dutch provinces, a Brussels office in the House of the Provinces.
As for EU Funds, for the 2007-13 period, the Netherlands has been allocated
€1.907 billion in total, €1.660 billion under the Regional Competitiveness and
Employment objective, and €247 million under the European Territorial Coop-
eration objective. To complement the EU investment under the National Strate-
gic Reference Programme, the Netherlands’ contribution would amount to at
least €2.319 billion in current prices. All Dutch regions fall under the Regional
Competitiveness and Employment objective.57
12.1. Cases and decisions on local self-government58:
Afdeling Bestuursrechtspraak Raad van State d.d. 22 April 2009, LJN: BI 1842
(Landsbanki II)
District Court Utrecht d.d. 17 October 2008, LJN: BG1043 (Loenen)
Afdeling Bestuursrechtspraak Raad van State d.d. 18 April 2007, LJN BA 3438
(VNG c.a.)
Afdeling Bestuursrechtspraak Raad van State d.d. 1 April 2005 LJN AT 3248
(Onderbanken)
Afdeling Bestuursrechtspraak Raad van State d.d. 25 September 2002, LJN AE
7993 (Betuwe)
Afdeling Bestuursrechtspraak Raad van State d.d. 17 July 2002, LJN AE 5462
(Tubbergen)
57
Last paragraph copied on 19-02-2011 from: http://ec.europa.eu/regional_policy/atlas2007/
fiche/nl_en.pdf.
58
These decisions are not all landmarks, but they do all concern the Charter. Accessible at:
www.rechtspraak.nl
482
12.2 Selected bibliography
(A) Books
Tekst & Commentaar Grondwet, fifth ed., Kluwer, Deventer 2009.

Kortmann, C. A.J. M.: Constitutioneel recht by, sixth ed, Kluwer, 2008.
Van der Pot-Donner: Handboek van het Nederlands staatsrecht revised by L.
Prakke, J.L. de Reede en G.J.M. van Wissen, fiftheenth ed., W.E.J. Tjeenk
Willink, Zwolle, 2006.
Brederveld, E.: Gemeenterecht, seventh ed., Kluwer Deventer 2006.
Dölle, A.H.M.; Elzinga, D.J. & Engels, J.W.M.: Handboek van het Neder-
lands gemeenterecht, third ed., Kluwer Deventer 2004.
(B) Law reviews
De Gemeentestem:
http://home.kluwer.nl/kluwer/portal_klnl/product/De+Gemeentestem/
prodM6389.html
Regelmaat: http://www.bjutijdschriften.nl/tijdschrift/regelmaat/detail
Bestuurswetenschappen: http://www.sdu.nl/catalogus/A02014
Binnenlands bestuur: http://www.binnenlandsbestuur.nl/
12.3. Websites on local government and self-government
Central Bureau for Statistics: www.cbs.nl

Research Institute Decentral Authorities Groningen University: www.coelo.nl
Association of Dutch municipalities: www.europadecentraal.nl/
Inter Provincial Union: www.ipo.nl
National Ombudsman: www.nationaleombudsman.nl
Portal for information from all public authorities: www.overheid.nl
Council for Public Administration: www.raadopenbaarbestuur.nl
Council for Financial Relations: www.rfv.nl
Association of Dutch Municipalities: www.vng.nl
483
Chapter 20:
LOCAL GOVERNMENT IN POLAND
Michał KULESZA
Dawid SZEŚCIŁO
The history of territorial government in Poland1 reflects the dynamics of Po-

land’s political transformation over the last one hundred years. Before 1918,
Poland was a nation divided among three neighbouring countries (Russia, Prus-
sia and Austria) that had different administrative systems, including self-govern-
ment schemes. Following World Ward III, the Polish state was re-instated after
more than 120 years. Then, Poland started building uniform local government
structures. The constitutional foundations for local and regional self-government
were established in the Constitution of 1921, but the structures of territorial gov-
ernment were not developed until later. The municipality was the major territo-
rial figure in this process, and was to appear throughout the country.
After World War II, the communist regime did not view self-government as
a force independent from authoritarian government. In 1950, local governments
were abolished and their assets were nationalized. The figure was replaced by
a system of people’s councils (rady narodowe, soviets), which later became
territorial branches of the central government. The councils suffered from a
lack of electoral democracy, independent powers and independent budgets.
These councils had nothing to do with local local government in terms of com-
munities having the right to manage their own affairs.
The reconstruction of local government became one of the first and most
important pillars of the 1989 political transformation in Poland. As a first step,
the fundamental amendments to the Constitution were passed in December
1
Poland’s self-government system covers not only local but regional authorities. Therefore,
mentions are made in this contribution, were needed, to the regional level of territorial govern-
ment, the «voivodeships».
485
michał kulesza - dawid sześciło
1989, and they substituted the unified system of people’s councils for self-
government institutions, which had been traditional in Poland. Secondly, in
March 1990, local self-government in the Municipality or «commune» (gmi-
na) was legally restored with the enactment of the Territorial Self-Government
Act. Finally, in May 1990, representatives from almost 2,500 local councils
were elected in fully democratic elections for the first time in Polish postwar
history. This event closed the initial stage of administrative reforms aimed at
significant decentralization of the public management system. Quick restora-
tion of local self-government was feasible, because in the early 80’s, a group
of independent experts associated with the democratic opposition, had elabo-
rated the strategic concepts of self-government, and the sudden collapse of the
communist system unexpectedly opened the way for the implementation of
their plans.2
The second stage of decentralization reforms occurred in 1998-1999. The
legislative package passed in June 1998 and enacted on 1 January 1999, con-
sisted of two core elements:
– Restoration of the powiat (county) as a second, supramunicipal tier of lo-
cal government, which was traditional in Poland. Pursuant to this legisla-
tion, 314 counties have been established since 1 January 1999.
– Creation of self-government at the regional level with 16 voivodeships
(regions, provinces) that replaced 49 former small voivodeships managed
by the central administration.
Elections for counties and voivodeship councils were held in autumn of
1998, and, as a result, the State and public management system were spectacu-
larly and significantly transformed. The final outcome produced one of the
more sophisticated and original administrative systems in Europe, which in-
cludes:
– A three-tier territorial system, where municipalities and counties perform
the functions of local government, and voivodeships operate at the re-
gional level. It should be noted that, unlike other major European coun-
tries (Germany, Spain and Italy) regional government in Poland is not
based on politically autonomous or federal units, but on administrative
government. At the regional level, the voivodes are general representatives
of the central government, whose competences and powers include, among
others, the administrative oversight local authorities and the implementa-
tion of tasks relating to general security and order, crisis management,
natural disaster prevention etc.
– The specific agendas of central government operate at both the regional
and local levels, and competences include security services (police, fire
protection, construction supervision) consolidated within the powiat’s ad-
2
See more: Jerzy Regulski, Michał Kulesza: Droga do samorządu, Wolters Kluwer 2009.
486
local government in poland
ministration, as well as other State inspections including tax inspections

conducted by officials associated with the central authorities.
In 1997, the new Constitution strengthened local government. Among the
fundamental rules of the State and its political system, the Constitution men-
tions both decentralization (article 15) and the delegation of local and regional
communities (represented by self-governing institutions) to perform «a sub-
stantial part of public tasks on their own behalf and under their own responsibil-
ity» (article 16). Furthermore, the preamble of the Constitution introduces the
principle of subsidiarity, which is one of the doctrinal foundations of local and
regional self-government. The rules for self-government are regulated in a sep-
arate chapter.
These reforms allowed Poland to build a system of territorial government
that society could approve, and after twenty years of implementation, no revo-
lutionary changes are expected in this model, its tasks, or in its constitutional
foundations. Local and regional government in Poland has entered a period of
stabilization and strengthening of its existing structures. However, there are
expectations of a third wave of local and regional government reforms that will
be of a «soft» nature and will avoid any organizational changes. Such reforms
will include:
– developing and strengthening tools for broader public participation in de-
cision making processes and performing public tasks at both local and
regional levels. This should guarantee conditions for effective implemen-
tation of the collaborative and participatory governance paradigm at local
and regional levels;
– developing and strengthening tools and incentives for intragovernmental
cooperation schemes (multi-level governance schemes). This is particu-
larly important, because each tier of local government enjoys independent
status with no hierarchical relations among them. For this reason, legisla-
tion should guarantee the consistency of the local authorities’ activities
through specific cooperation and coordination, and the exchange of infor-
mation schemes; and
– territorial stabilization, after more than two decades and hundreds of
boundary changes that altered the map of municipalities and counties.
This process should lose its impetus once plans are implemented to amend
the procedure that governs these transformations. Hopefully, new legisla-
tion will strengthen the territorial stabilization of local authorities units by
supporting participatory governance mechanisms.
Another challenge for Polish self-government is the critical need to reduce
the ever increasing debt. Central government urges local authorities to secure
greater budgetary discipline, but local governments argue that demands for the
rapid reduction of their debt would dramatically undermine local development
and investment policies.
487
Local government in Poland has two levels: the municipality (gmina) and
the county (powiat), but in each level different types or bodies may be found.
Thus, there are three forms of municipalities:
– Municipality (urban commune, gmina miejska). This type of local body
covers the area of towns and there are less than 300. Within this group
there are large differences in their size: from about 1,000 residents to
about 1.7 million residents (City of Warsaw).
– Rural commune (gmina wiejska): this type includes only the non-urban
areas. There are some 1,500 such units.
– Urban-rural commune (gmina miejsko-wiejska). This type is a mixed or
consolidated form covering towns or townships and the area of the vil-
lages adjacent to them – formerly they were separate rural communes (al-
most 600).
Within the rural communes, the parishes (sołectwo) represent the basic form
of neighbourhood self-organization of rural communities in villages. Currently,
there are over 40,000 parishes, which are generally very small and typically
include a single village area. Parishes represent the interests of the village with-
in the commune. It should be emphasized that parishes are not independent lo-
cal authorities, but rather auxiliary units created by the municipality, to perform
specific tasks entrusted to them. An example of these tasks is the organization
of cultural or sport events, common activities, local road improvement, village
water supply and sewage systems, flood protection etc. The elected chair of a
village council (sołtys) is empowered to provide direct collection of some local
taxes and fees.
A similar type of auxiliary unit of the urban municipality is the district
(dzielnica) or housing estate (osiedle). This formula is not commonly found in
Poland and is associated with bigger towns and major cities, including the cap-
ital city of Warsaw. Parishes and districts (housing settlements) are established
by decision of the municipal council.
Since 1998-1999, a group of 65 of the largest towns, including all the
«voivodeship» capitals, were given the status of town with county rights. Ac-
cording to this formula, the authorities of these towns perform simultaneously
the tasks and competences associated with a commune and a county.
In addition to the towns with county rights, there are 314 counties
(powiats), including the territory of several municipalities. An average coun-
ty has about 85,000 residents, and some 8 municipalities. The biggest county
in terms of population is Powiat Poznański (290,000 residents) and the small-
est is Powiat Sejneński (21,000 residents). The «Voivodeships» (regions)
also differ greatly in size. The largest voivodeship, Mazowieckie (Masovia
region), has an area of 35,000 km2 and 5.2 million residents, and Śląskie (Si-
488
lesia) is only marginally smaller. The four smallest voivodeships have close
to 1 million residents. The smallest voivodeship, in terms of area, is Opolskie
(9,000 km2).3
Poland ratified the European Charter of Local Self-Government on 26 April

1993, which was published officially in the Official Gazette on 25 November
1994. This decision marked the inclusion of the Charter in the Polish legal sys-
tem. Poland ratified the Charter in its entirety, with no objections or declara-
tions. According to Polish law, the Charter ranks in importance somewhere
between the Constitution and the statutory acts of Parliament (laws). In accord-
ance with constitutional principles, the Charter has precedence over statutory
law, if the law cannot be reconciled with the Charter. Also, theoretically, the
courts may refuse to apply the provisions of Polish laws if they are contrary to
the provisions of the Charter.
The opinion among Polish courts, however, is that the Charter offers a cata-
logue of goals and general standards that the State should follow, and may be
applied in individual cases on very limited scope. In the words of the Voivode-
ship Administrative Court in Warsaw: «(...) no provision of this act is a self-
executing norm, as the European Charter of Local Self-Government is a set of
rules of a general nature indicating the desired action of the signatories for the
purposes indicated in the Preamble.»4
Despite these diverging opinions, the primacy of the Charter over parlia-
mentary statutes provides a basis for checking the conformity of Polish law
with the provisions of the Charter, before the Constitutional Court. This judicial
body controls the compliance of the provisions of Polish law in relation to the
Constitution, and those contained in international treaties. There are about
twenty judgements in which the Constitutional Court cites the Charter. On three
occasions the Court declared the non-compliance of the provisions of Polish
law in relation to the provisions of the Charter. In each case, the Charter was
considered subsidiary as a basis for jurisdiction, and the provisions of the law
were repealed primarily on the basis of the Polish Constitution. Moreover, the
Constitutional Court, quoting earlier administrative court rulings, questioned
whether the provisions of the Charter have a direct effect and are indeed en-
forceable. In one of its rulings, the Court stated that «the provisions of the
3
Data of Central Statistics Office, www.stat.gov.pl.
4
Ruling of Voivodeship (regional) Administrative Court in Warsaw of 26 October 2006,
case no. III SA/Wa 2459/06.
489
Charter, because of its general nature, may, only to a limited extent, serve as a
basis for direct examination of the conformity of domestic law to the Charter.»5
3.2. Constitutional foundations of self-government
As mentioned above, the legitimacy of local self-government in Poland has

a strong constitutional backing. The preamble declares a commitment to the
principle of subsidiarity «strengthening the rights of citizens and their com-
munities.» Furthermore, self-governance of local and regional communities is
included among the principles of the political system listed in the first chapter
of the Constitution. According to article 15: «The territorial system of the Re-
public of Poland shall ensure the decentralization of public power. The basic
territorial division of the State shall be determined by statute, allowing for the
social, economic and cultural ties which ensure the territorial units the capac-
ity to perform their public duties». On the other hand, article 16 of the Consti-
tution states: «Territorial self-government shall participate in the exercise of
public power. The substantial part of public duties which territorial self-gov-
ernment is empowered to discharge by statute shall be done in its own name
and under its own responsibility.» This principle guarantees that a significant
sphere of public governance will be managed autonomously by local and re-
gional communities. Accordingly, self-government entities cannot be reduced
to the role of executor of tasks commissioned by central government, rather
they must be able to take independent actions and make decisions on public
matters.
Detailed rules concerning the organization and functioning of local govern-
ment are described in Chapter VII of the Constitution, dealing with «Territorial
Self-Government.» The most significant principles state that the Constitution:
(1) establishes the municipality as the basic local authority, which performs
all the tasks of local government not reserved for other self-government
units (presumption of competences in favor of municipalities);
(2) grants all local authorities (not just the municipality) a public law sta-
tus distinct from the State, and recognizes its autonomy, which is se-
cured by judicial protection. This protection is exercised primarily by
the administrative courts, and, in a broader sense, by the Constitu-
tional Court. The municipalities and other local authorities have the
right to appeal all acts of central government affecting their status and
powers before the administrative courts. For example, they may ap-
peal a voivode‘s supervisory resolution repealing a local resolution or
ordinance. In addition, the administrative courts settle all jurisdiction-
al conflicts between local or regional authorities and central govern-
5
Ruling of the Constitutional Court of 18 February 2003, case no. K 24/02.
490
ment. Local authorities may also appeal to the Constitutional Court

against legislation passed by Parliament or the Government that vio-
lates the status or rights of local government granted by the Constitu-
tion or international treaties, including the European Charter of Local
Self-Government;
(3) guarantees that local authorities shall be assured adequate public fund-
ing to perform their duties (adequacy principle). Among the sources of
local government income, the Constitution mentions the local bodies’
own revenues, general subsidies and specific grants from the State
budget. Constitutional provisions also specifically indicate that a local
government own income may be derived from local taxes and property.
Municipalities have the right to impose taxes, but only according to the
limits established by national legislation;
(4) ensures that local governments will be subject to supervision only in
terms of the legality of their actions. The supervisory action is the re-
sponsibility of the Prime Minister and voivodes (governors), and the
regional audit chambers, in cases regarding financial matters. This lim-
ited supervision implies that central government cannot cancel the ac-
tions of local entities on the basis that they contradict government poli-
cy, unless the policy is clearly backed by law that requires local
authorities to perform specific actions.
In addition, local and regional authorities, like other public institutions, are
subject to review by the national auditor, known as the Supreme Audit Cham-
ber (Najwyższa Izba Kontroli, NIK). The NIK may audit the activity of the or-
gans of local entities and their subordinate units, in terms of their legality, eco-
nomic prudence and diligence.
Finally, the Constitution allows local government units to adopt their own
rules and regulations, to a limited extent. Rules passed by municipalities, coun-
ties and voivodeships are territorially limited to the area of the particular unit.
Also, the basis for these legislative acts and their limits must be specified by
central government legislation.
3.3. Basic legislation
Constitutional arrangements are detailed in ordinary, separate legislation for

each tier of self-government. The Municipal Government Act and the County
Government Act. Each one defines the key elements of the legal structure of
local self-government units, including:
– The scope of their activities, and list of tasks;
– The composition and operation of the legislative and executive bodies;
– The principles regarding the budget and property management;
491
– The detailed rules for supervising the municipalities and counties;

– The regulatory powers; and
– The opportunities and forms of cooperation with other local government
units.
Moreover, there is a whole package of regulations governing the modes of
action of the several local authorities. In this sense, the Municipal Economy
Act plays a significant role in determining the overall framework of economic
operations for local authorities. First of all, it determines the terms and condi-
tions under which the municipality may join other other local government units.
Another body of legislation, including the Public Finances Act, relates to prop-
erty management and public procurement. The Public Information Access Act
is another very important piece of legislation. In day-to-day activities, munici-
palities and counties also apply several sectoral laws and regulations that per-
tain to their spheres of responsibility, including legislation on public education,
public health, social welfare and spatial planning.
3.4. Capital City of Warsaw
The Capital City of Warsaw is the object of specific regulation, and accord-
ing to the law governing the structure of the city,6 Warsaw currently enjoys the
status of a city with county rights. From 1994 to 2002, Warsaw was divided
into several independent municipalities, but the model proved ineffective, so
the formula of the single municipality divided into several auxiliary units’ dis-
tricts was adopted. The division of tasks between Warsaw and the districts is
not specifically defined on a statutory level, so the Warsaw City Council de-
cides on which tasks will be assigned to the districts. The Capital City of War-
saw Act, however, stipulates that the districts should participate in performing
the following tasks:
– maintenance and operation of municipal property;
– maintenance of facilities for education, culture, social welfare, recreation,
sports and tourism;
– tasks related to health care; and
– maintenance of green areas and local roads.
The Warsaw City Council adopts a budget that allows districts to perform
these tasks. Districts are managed by district councils, which are elected at the
same time as the municipal council. The executive body is appointed by the
district council of each district.
6
See more: Magdalena Niziołek: Problemy ustroju aglomeracji miejskich ze szczególnym
uwzględnieniem Warszawy, Wolters Kluwer 2008.
492

AUTHORITIES
According to the provisions of the Constitution, territorial government bod-

ies shall perform a «substantial part of the public tasks on their own behalf and
under their own responsibility». A wide scope of public tasks is reserved for
municipalities, including «all public matters of local significance that are not
exclusively prescribed for other entities» and «meet the collective needs of the
community.»
Apart from these generalities, the Municipal Government Act also indicates
specific tasks for municipalities in areas such as spatial planning, property
management, environmental protection, nature conservation and water man-
agement, which include:
– management of municipal roads, streets, bridges, and squares;
– provision of water and sewage services;
– provision of waste disposal;
– provision of electricity and gas;
– public transportation;
– health care;
– public education;
– organization of cultural activities.
Municipalities must act within the Law, but are free to take actions to meet
the collective needs of the community. This broad vision of competences gen-
erates on-going disputes between municipalities and central government au-
thorities. Central government tends to take a negative approach towards the
municipalities’ right to take actions that have not been explicitly designated in
the Municipal Government Act or in other legislation, even if it actually serves
the collective needs of the local community. Likewise, there are doubts about
the actual freedom that municipalities should have in selecting the legal instru-
ments they apply in performing municipal functions.
At the heart of the dispute is the issue of municipalities engaging in civil law
(contractual) relations. Unfortunately, central government bodies are often fol-
lowers of the Weberian bureaucratic vision of government, in which every ac-
tion must be determined in detailed provision of law.7
There are fewer disputes regarding county tasks, because the County Gov-
ernment Act provides an exhaustive list of responsibilities and competences.
In contrast to the municipality, the county is competent to act only in those
7
See more: Michał Kulesza: O tym, ile jest decentralizacji w centralizacji, a także o osobli-
wych nawykach uczonych administratywistów, Samorząd Terytorialny 2009, no. 12.
493
areas that are expressly attributed to it. The catalogue of actions includes the
following:
– public education,
– promotion and protection of health,
– social assistance,
– family policy,
– support for people with disabilities,
– public transport and public roads,
– culture and cultural heritage protection,
– sports and tourism,
– geodesy, cartography and cadastre,
– real estate management,
– architectural and building administration,
– water supply,
– environmental protection and nature,
– agriculture, forestry and inland fisheries,
– public order and citizen safety,
– flood protection, fire protection and prevention,
– extraordinary threats to human life and health and the environment,
– combating unemployment and activation of the local labour market, and
– protection of consumer rights.
Some of these tasks coincide with those of the municipalities, but this does
not means the lack of a separation between the areas of responsibility assigned
to municipalities and those assigned to the counties. The county performs only
those tasks that have a supra-municipal significance and that would be impos-
sible or ineffective to execute by other means. For example, in the sphere of
public education, the division of tasks between the municipality and the county
is as follows: the first maintains primary and pre-secondary schools, while the
latter is responsible for secondary schools. In addition, it is legally possible for
a county to transfer certain tasks, under contract, to the municipalities.
The voivodeships (regions) focus mainly on the formulation and implemen-
tation of regional development policy. According to the Voivodeship Govern-
ment Act, policy should:
– create conditions for economic development, including the creation of a
job market;
– maintain and develop social and technical infrastructure of regional im-
portance;
– combine public and private funding to finance public service;
494
– support and conduct activities to raise the level of education; and

– encourage the rational use of natural resources and environmental protec-
tion in accordance with the principle of sustainable development.
All local entities have a wide range of legal instruments available to them to
implement their tasks. They enjoy the rights associated with being a legal body,
which allows them to engage in contractual relations with private entities. They
may also be involved in a company, but this form of activity is subject to re-
strictions such as the scope of the municipal engagement and the legal form of
the company. These restrictions aim at limiting the commercial activities of
municipalities to those which accelerate local development or overcome seri-
ous social and economic problems.
Municipalities and counties have limited regulatory powers, they are re-
stricted to situations in which legislative competence is expressly provided in
national legislation. Consequently, they cannot create a local rule whenever
they want to attain an objective. Also, territorial bodies are very restricted as to
how they perform their duties so as to avoid interfering with the rights and ob-
ligations of private entities (imposing bans and orders, or setting powers and
responsibilities). To undertake such activities, local authorities must have spe-
cific statutory backing.
The organization and electoral procedure for self-government authorities

has significantly evolved since the restoration of local autonomy in 1990.
Changes have occurred, particularly in the number of councillors and in the
composition and methods for selecting executive authorities in the municipali-
ties, counties and voivodeships.
5.1. The council
The municipal council is the rulemaking body. The method of selecting mu-
nicipal councils depends on the size of the local authority. Under the new Elec-
toral Code, effective as of 1 August 2011, the following rules will apply:
– In most municipalities, there will be a majority system under which the
candidates who obtains the majority of votes in the constituency become
councillors. The system is based on single-member constituencies in
which each election committee can propose only one candidate for the
constituency
– In «towns with county rights», however, the division of seats among the
lists of candidates will be based on the proportional system. Also, there is
a 5% threshold that must be reached to participate in the allocation of
495
seats. The size of the municipal council depends on the size of the com-
mune, so towns and cities of up to 20,000 inhabitants have 15 councillors;
50,000 inhabitants, 21 councillors; up to 100,000 inhabitants, 23 council-
lors; and up to 200,000 inhabitants, 25 councillors.
In municipalities with populations exceeding 200,000 residents, the number
of councillors increases by 3 for every 100,000 residents. A special regulation
applies for Warsaw, which allows a fixed number of councillors (60 councillors).
Municipal councils are invested with powers traditionally associated with
the regulatory and policy-maker bodies. Such powers include: rule making, the
adoption of the municipal statute, the municipal budget, local spatial planning,
strategies, resolutions on matters regarding local taxes and charges, and key
issues concerning municipal property that include the rules governing the dis-
posal of municipal property and municipal bond issues, the establishment of
municipal companies and loans. The municipal council also controls the activi-
ties of the mayor, the administrative units, and the auxiliary bodies of the local
entity, through an appointed auditing committee.
The policy-making body in the counties and voivodeships also operates by
these rules, with the exception that the councils are selected by universal suffrage
according to a proportional system with a 5% electoral threshold. Unlike the mu-
nicipal council, the county council has the power to dismiss the county board.
5.2. Executive bodies
Since 2002, the mayors of municipalities, elected by universal suffrage,

have exercised all executive and management powers. Previously, local au-
thorities were managed by boards, which were appointed and dismissed by the
municipal council. Currently, a local referendum is necessary to dismiss the
mayor before the end of his term.
The introduction of the system of direct election of mayors contributed to a
significant strengthening of their position, and fostered conditions for the crea-
tion of a group of local leaders that eliminated the leadership deficit in local
government. On the other hand, the council’s inability to dismiss the mayor
deprived councillors of an important tool with which they could influence the
executive body of the local entity. The municipal council, however, still per-
forms its regulatory functions and sets goals and priorities for the mayor, and
can block some of the mayor’s actions by refusing to approve the draft budget.
The main difference between counties and voivodeships is that the former
are managed by executive boards, whose members are appointed by the coun-
try, while the latter are managed by councils. Their powers and responsibilities
are similar to those of the mayor, and include carrying out legislation and day-
to-day management.
496
The provisions of the Municipal Self-Government Act provide for three forms
of inter-municipal cooperation. The most far-reaching solution is the inter-munic-
ipal association, created by the municipalities for the joint performance of public
tasks. The association is a legal entity, with an independent status under public
law, and is distinct from that of the constituent local authorities. It also operates on
its own behalf and under its own responsibility. Inter-municipal associations exe-
cute projects such as shared waste management systems among several munici-
palities, joint environmental protection, and public transport system.
A second type of collaboration takes the form of an inter-municipal agree-
ment, which does not require the creation of a separate legal entity. Under this
formula, municipalities agree to enable one commune to perform certain public
functions. An example of this would be one commune handling landfill, which
according to the inter-municipal agreement, would entail waste pick-up in oth-
er local authority. An important element of this cooperation is that the parties
involved in the cooperation must co-finance the activity.
Finally, another form of cooperation is the consortium of local authorities,
whose goals are completely different than those of the municipal association or
the inter-municipal agreement. Local authorities consortia are established to sup-
port self-government and to defend common interests. Participants may be other
local government units such as counties and voivodeships. In contrast to the inter-
municipal association and the inter-municipal agreement, the consortium does
not perform public tasks assigned by municipalities, rather its objectives are to
exchange experiences, inform and be informed and to protect the interests of lo-
cal government. Some of these associative structures of municipalities are repre-
sented in the Joint Commission of Government and Self-Government.8
6. HUMAN RESOURCES
Local government officials constitute a separate body within the Polish civ-
il service system, which differs from the administrative service that operates in
central government. The regime for local government employees is less de-
tailed and restrictive than that of central government, and local officials, unlike
their counterparts, have no special legal status. On the other hand, employment
by local government units is subject to special legal requirements. For example,
the Act on Local Government Employees lays down specific rules of employ-
ment in the following instances:
– Required qualifications. Officials employed by local authorities must
meet three basic criteria: (1) possess at least an upper secondary educa-
8
http://kwrist.mswia.gov.pl
497
tion; (2) have no criminal record of intentional indictable crimes; and (3)
have a good reputation. Managerial positions also require three years of
experience in a similar position or in a commercial activity consistent with
the requirements for the post, and a higher education.
– Recruitment. The staffing of civil servants positions must be open and
competitive, and require a public call of the position(s). The action of
a special committee, assigned the task of directing the recruitment pro-
cedure, must be transparent and the results must be announced publi-
cally.
– Working conditions. Local government officials are subject to mandatory,
periodic evaluations performed at least biannually, but not more than once
every 6 months.
– Restrictions on private activities. Officials cannot engage in activities that
may cause a conflict of interests with their work in the local authority, and
all are obliged to make a statement as to their business activities.
According to the provisions of the Constitution, funding for local authorities

is derived from revenues, general subsidies and specific grants from the State
budget. In practice, the municipalities’ most important role is to plan their own
income, which represents slightly more than half of their overall revenue. Gov-
ernment subsidies provide roughly 25% of the income, while 20% is derived
from grants.9
7.1. Municipal income
The catalogue of municipal revenues is extensive, and includes income from

local taxes and administrative fees, and from the municipality’s assets (e.g. the
sale of real estate), income earned by the municipality’s subsidiaries (e.g. com-
mune-owned companies), and income from financial operations (such as inter-
est on loans). Tax revenues are also derived from property, agriculture, forests,
transport, inheritance and gifts, and civil law transactions. There are also sev-
eral administrative fees included in local budgets such as the stamp duty, trade
fairs, or dog fees. The amount of local taxes and fees is specifically determined
by each municipality, and must comply with the framework set by national
legislation.
A separate category of local income is a share in income tax revenues in-
cluding personal income tax (PIT) and corporate income tax (CIT). Data on the
9
Data of Ministry of Finance (www.mf.gov.pl).
498
municipalities‘share in income tax revenues indicate that local authorities re-

ceive 39.34% of the revenue from personal income from taxpayers residing in
their area, and 6.71% from corporate income tax from firms established in their
area. Since 2004, this source of municipal revenue has been severely cut back,
due to the reduction in the corporate income tax rate (27% to 19%), and the
reduction in the PIT rates in 2009. Additionally, PIT taxpayers were granted the
option to transfer 1% of their tax to NGOs, which also reduced local govern-
ments’ tax revenues.
Other forms of municipal taxation can be introduced following a referen-
dum in which no less than two thirds of the voters must approve the measure.
Given the complexity of this process, the move to impose additional taxation is
not often considered.
7.2. Subsidies
Subsidies form a complex legal and financial mechanism for continued

support of local economies with funds from the central budget. The most im-
portant objective for granting subsidies to municipalities is to support the im-
plementation of municipal tasks related to public education, i.e. maintaining
schools and financing teachers‘salaries. The subsidy is calculated according to
a complex, multi-component algorithm described in the Local Government
Revenues Act.
The most important feature of the subsidy system is its preference for assist-
ing weaker communities, so more subsidies are granted to municipalities with
lower tax revenues. This mechanism has become an instrument of the cohesion
policy and raises concerns in wealthier regions and municipalities that are re-
luctant to support less developed areas.
7.3. Grants
In contrast to subsidies, grants are a more flexible form of support for spe-
cific tasks performed by municipalities. Some examples of grant objectives are:
– financing tasks assigned to municipalities by national legislation;
– financing tasks performed by local governments under agreements with
national government authorities; and
– funding for the removal of direct threats to security and public order, flood
and land slide recuperation, or damage caused by other natural disasters.
Given the broad spectrum of these objectives, grant allocation depends on
the robustness of the State budget and the probability of one-off events that
would force central government to effect immediate relief to affected areas.
499
7.4. EU Funds
In recent years, European Union funds have played a key role in the Polish
government‘s investment policy, which has made money available to many
municipalities. The main source of funding is derived from the Regional Op-
erational Programmes, which are managed by voivodeships (regional authori-
ties). Funds are distributed according to public tender procedures, which are
open to municipalities and counties. With the present EU financial perspective,
it is not clear what level of funding will be available to local authorities after
2014. The possibility of a reduction in support for regional development would
seriously undermine the investment capacity of local authorities. On the other
hand, this threat may be mitigated by the development of alternative methods
of funding such as public-private partnerships.
Assets belonging to local authorities consist primarily of estate property and

public space, i.e. streets, parks and squares, but in a broader sense, it can also in-
clude assets from utilities that provide public services. Also, local authorities can
manage property used for commercial purposes, which can produce earnings.
Management of real estate belonging to local communities is based on spe-
cific legislation contained in the Property Management Act. The local authori-
ties are subject to significant restrictions in disposing of their property. First of
all, the sale of property generally must be made by open tender. Only in excep-
tional and strictly defined cases, is it possible to dispose of property without
competitive tendering. This applies, in particular, to transactions between the
self-government unit and the State.
An important aspect of self-government‘s property management is its use in
developing social policy. Part of the property consists of municipal flats, rented
under favourable terms, to persons who are unable to rent or buy flats on the
free market for economic reasons. Secondly, the real estate may be designated
for specific purposes such as to support non-governmental organizations that
carry out important public functions.
Several agencies and courts oversee the activities of local authorities. In ac-
cordance with constitutional principles, the activities of all units of local gov-
ernment are subject to supervision within the limits of certain legal criteria. In
addition, supervisory authorities may intervene in municipal activities in cases
specified by law. The bodies of authority responsible for the supervision of the
activities of local entities are the Prime Minister, the voivodes (governors), and
500
the regional audit chambers (for financial matters). As supervisors, the voivodes
have the authority to abolish decisions adopted by self-government authorities
that are contrary to law, and this action would be communicated in the form of
a supervisory decision. It is important to note that the executive body of each
local authority is supposed to send the resolutions and measures that have been
adopted by the council within seven days after its adoption, and voivodes must
assess the local authorities‘compliance with the law. If they found grounds for
annulment, the local decision would be declared null and void. Local authori-
ties would then have two options: either introduce the necessary changes in the
contested measure, or challenge the voivode’s decision in an administrative
court. In this case, the court would call for a hearing within 30 days from the
receipt of the complaint. The court may suspend the contested resolution of the
governor.
Citizens also have the right to challenge decisions and regulations adopted
by local authorities. Pursuant to self-government laws, anyone whose legal in-
terest or right has been violated by a resolution or an ordinance adopted by local
or regional authorities, may lodge a complaint in the administrative court. Fur-
thermore, administrative individual decisions taken by the local and regional
authorities (e.g. building permits) may be challenged under a two-instance ad-
ministrative procedure. After exhausting these remedies, a citizen may lodge a
complaint before the administrative court requesting that the unlawful decision
be repealed.
In addition to supervisory powers, several governmental agencies have the
right to monitor the activities of local authorities or, at the very least, to request
information on specific matters. As previously mentioned, the Supreme Audit
Chamber (NIK) is able to exercise this competence as well as the Ombudsman,
who can demand information from all State authorities, including local govern-
ment units.
Local autonomy benefits from a comprehensive legal protection. As civil

law entities, local authorities receive the same legal protection as do private
organisations such as companies and other legal bodies, and can claim property
rights before an ordinary court. The municipality also benefits from legal pro-
tection in relations involving other public entities, particularly, central govern-
ment. According to the Constitution and ordinary laws, municipalities may use
two basic pathways of protection against excessive interference by the central
government:
– Judicial protection exercised by the administrative courts. As mentioned
above, the administrative courts settle complaints lodged by local authori-
ties against the decisions of the central government (e.g. abolishing meas-
501
ures adopted by municipalities). In addition, the administrative courts de-

cide on jurisdictional disputes between local authorities and other State
authorities.
– Constitutional protection (Constitutional Court). Municipalities and other
local governments have the right to appeal to this Court against State laws
and regulations of the central government that affect their competences.
This allows local authorities to challenge legislation that imposes new re-
sponsibilities on them, or regulates how they should be executed. Most
complaints involve the lack of adequate funding to carry out the tasks en-
trusted to local government. Also, in recent years, there have been several
complaints lodged by municipalities against central government decisions
on municipal boundaries changes. The Court rarely takes the side of the
municipalities in disputes with the central government, because according
to its case-law, the autonomy of local authorities is not an absolute value
in itself and is susceptible to limitations. As a result, there is some doubt
as to whether the constitutional guarantees of local self-government rights
are being adequately protected by the Constitutional Court.
Poland holds 21 seats on the Committee of the Regions of the European

Union. The selection procedure for Polish members10 and the current composi-
tion ensure adequate representation of local government’s interests. According
to the selection procedure for members, the appointment is taken by the central
government, but it is bound by the procedural guidelines established by two
statutes: (a) the Joint Commission of Central Government and Territorial Self-
Governments Act; and (b) the act on the Representatives of the Republic of
Poland in the Committee of the Regions of the European Union. This act pro-
vides that, in addition to the representatives of voivodeships and municipalities,
Polish membership must also include representatives designated by national
organizations representing all categories of local authorities.
From the viewpoint of local communities, Poland‘s membership to the Eu-
ropean Union has a much more important dimension, which is the access to the
structural funds. As mentioned previously, these funds are now the main source
of financing for local and regional development projects. Local government not
only benefits from this aid, but also contributes to the impact on the allocation
of European funds by establishing the priority areas of intervention. This is ac-
complished by monitoring committees established within the framework of op-
erational programs. Members of these committees represent various stakehold-
er groups and include representatives of local government.
10
See list of Polish members of the Committee of the Regions: http://www.brukselaeu.po-
lemb.net/index.php?document=42.
502
Finally, it is important to note that voivodeships have a key role in the dis-
tribution of EU funds. As of the 1998-1999 reform, voivodeships are empow-
ered with effective tools for formulating and performing regional development
policy, which is important because EU funds are the major source of support
for implementing such policy.
12.1. Case law: landmark rulings of the Constitutional Court
Ruling of 24 March 1998, Case No. K 40/97 [financial independence of local

government]
Ruling of 18 February 2003, Case No. K 24/02 [reform self-government system
of the capital city]
Ruling of 8 February 2005, Case No. K 17/03 [electoral rules for municipal
councils]
Ruling of 26 September 2006, Case No. K 1/06 [unconstitutionality of manda-
tory acquisition of military property by municipalities]
Ruling of 12 March 2007, Case No. K 54/05 [local government’s powers relat-
ing to spatial planning policy]
Ruling of 8 April 2009, Case No. K 37/06 [rules for changing the boundaries of
municipalities]
12.2. Selected bibliography on self-government:
(A) Books
Izdebski, Hubert & Kulesza, Michał: Administracja publiczna. Zagadnienia

ogólne [Public administration. General issues] Liber 2004.
Michałowski, Stanisław & Pawłowska, Agnieszka (eds): Samorząd lokalny w
Polsce: społeczno-polityczne aspekty funkcjonowania [Local self-govern-
ment in Poland: social and political aspects], Wydawnictwo UMCS 2004.
Regulski, Jerzy: Samorządna Polska [Self-governed Poland], Rosner & Wspól-
nicy 2005.
Miszczuk, Andrzej; Miszczuk, Magdalena & Żuk, Krzysztof: Gospodarka
samorządu terytorialnego [The Economy of the Territorial Self-Govern-
ment], PWN 2007.
Regulski, Jerzy & Kulesza, Michał: Droga do samorządu [Way to Self-Gov-
ernment], Wolters Kluwer 2009.
503
Izdebski, Hubert: Samorząd terytorialny. Podstawy ustroju i działalności [Ter-

ritorial Self-Government. Basic Principles], LexisNexis 2010.
Kulesza, Michał: Methods anf Techniques of Managing Decentralization Re-
forms in the CEE Countries: The Polish Experience [in:] Mastering Decen-
tralization and Public Administration Reforms in Central and Eastern Eu-
rope, ed. by Gabor Peteri, Open Society Institute. Local Government and
Public Service Reform Initiative, LGI Studies, 2002
(B) Journals
Samorząd Terytorialny [Territorial Self-Government].

Finanse Komunalne [Local Authority Finance].
Orzecznictwo w sprawach samorządowych [Case law on Self-Government].
Wspólnota [Community].
www.mswia.gov.pl – Ministry of the Interior and Public Administration.

http://kwrist.mswia.gov.pl/ - Joint Commission of Central Government and
Territorial Government Units.
http://www.zmp.poznan.pl/ - Association of Polish Towns and Cities.
http://www.gminyrp.pl/ - Association of Rural Communes.
http://www.selfgov.gov.pl/ - The Union of Polish Metropolises.
http://www.zpp.pl/ - Association of Polish Poviats.
http://irm.krakow.pl/pl/ - Institute of Urban Development.
http://www.silesia.org.pl/ - The Silesian Union of Municipalities and Poviats.
http://www.frdl.org.pl/ - The Foundation in Support of Local Democracy.
http://www.wspolnota.org.pl/ - Information portal of Wspólnota journal.
504
Chapter 21:
LOCAL GOVERNMENT IN PORTUGAL1
Pedro COSTA GONÇALVES
Ana Raquel MONIZ
The roots of local government in Portugal reach deep into the history of law: it
is possible to trace their origin to Roman times (in the case of the municipality) and
to the time of the evangelisation of the Iberian Peninsula (in the case of the parish).2
The origin of local governments (especially that of the municipality) is related to
the inability of the central government (the Crown) to fulfil all of the country’s
needs, and hence it was necessary to attend to the details of life in commonality.3
Within the contemporary Portuguese constitutionalist framework that
emerged from the Portuguese Liberal Revolution, the Constitution of 1822 con-
tained provisions relating to district and municipal administrations (Arts. 212
and ff.). In turn, the Constitution of 1826 contained a title on the «administra-
tion and economy of the provinces» (Arts. 132 and ff.).
Albeit with some setbacks to the trend of centralisation (e.g., the Decree of
Mouzinho da Silveira No. 23, dated May 16, 1832), a significant impulse of
local government has taken place with the (legislative) reform of the Public
Administration, due to the need of creating an administrative code. This does
not mean, however, that the evolutionary trend in the legal treatment of local
administration has been progressively oriented towards decentralisation, but
rather, depending on the constitutional acts and administrative codes in force,
we find centralising moments interspersed with decentralising ones.
1
Translation from the original manuscript in Portuguese by Sofia Castro Nunes.
2
See Marcello Caetano, «História da Administração Central, Local e Corporativa», in: Es-
tudos de História da Administração Pública Portuguesa, Coimbra Editora, Coimbra, 1994, pp.
325 and 335, respectively.
3
Marcello Caetano, «Aspectos Institucionais do Fomento Regional», in: O Direito, fasc. 4.º,
ano XCIX, 1967, p. 302.
505
pedro costa gonçalves - ana raquel moniz
The first Portuguese Administrative Code, dating back to 1836, divided the
country into districts (distritos), which were then subdivided into minicipalities
composed of one or more parishes (freguesias). It is important to note two rel-
evant points: on the one hand, all these entities had a deliberative body elected
by the inhabitants; on the other hand, they corresponded to what we nowadays
define as public bodies designated for multiple purposes (for instance, the city
hall—the deliberative body of municipalities—had the power to «consult and
deliberate on all the municipality’s needs»).
In line with the movement between centralisation and decentralisation4
which characterized the evolution of Portuguese local autonomy, the succes-
sive Administrative Codes alternatively presented either centralising character-
istics (such as in the Codes of 1842, 1886 and 1895-1896) or assumed a decen-
tralising trend (such as in the Code of 1878).
The trend towards decentralisation was again present in the 1911 Consti-
tution, of which Art. 266 contained a list of standards to guide the legislature
in its task of generating rules relating to the organization and powers of the
administrative bodies: here it was established that the executive power would
not interfere in the activity of the administrative bodies; that their delibera-
tions could only be modified or annulled by the courts (if invalid); that the
district and municipal powers would be divided into deliberative and execu-
tive powers; and that the administrative bodies would be endowed with fi-
nancial autonomy, adding the exercise of the referendum and the representa-
tion of minorities. In connection with this constitutional provision, the law
regulating the organisation, functioning and powers of the administrative
bodies was enacted (Law No. 88, of August 7, 1913, amended by Law No.
62 of June 23, 1916), which divided the territory into districts, communes
and civil parishes.
The Constitution of 1933 returned to the rule of centralisation: while
recognizing the existence of local authorities (autarquias locais) endowed
with financial autonomy, Art. 126 (amended and renumbered as Art. 127 in
1936) provided for the local governments’ administration to be inspected
by officials of the central government, and the deliberations of the govern-
ing bodies depended on authorization by other agencies or authorities and
were subject to referendum and approval. Other constitutional characteris-
tics of the trend towards centralisation were consolidated by the Adminis-
trative Code of 1936-1940 (subject to several reviews). Worth emphasising
in this period are the following: the nomination of the mayor, who is now a
State body, by the government; the significant increase in State powers that
reduced the range of powers of local governments; and the progressive
change of the autonomous administration to indirect State administration.
4
See A. Cândido de Oliveira, Direito das Autarquias Locais, Coimbra Editora, Coimbra,
1993, p. 26.
506
local government in portugal
This situation changed only with the Portuguese Constitution of 1976, cur-
rently in force.5
Under Art. 6 of the Constitution, Portugal is a unitary State which imple-

ments, inter alia, the principles of local governments6 and of the democratic
decentralisation of public administration. This same idea is confirmed by para-
graph 1 of Art. 267 of the Constitution, which makes decentralisation the ruling
principle of administrative organisation, and Arts. 235 and ff., which relate to
local government.
Under paragraph 2 of Art. 235 of the Constitution, local authorities (autar-
quias locais) are defined as «territorial collective people with representative
bodies, which seek to pursue the interests of the respective local community.»
Paragraph 1 of Art. 236 of the Constitution outlines three categories of local
authorities: (a) the administrative region (região administrativa); (b) the mu-
nicipality (município) and (c) the parish (freguesia).
(a) The administrative regions constitute the first tier of local government,
which aims at pursuing the interests of the local people—this requires
an intermediate tier between national and municipal7 levels. Among
others, they have responsibilities for economic and social develop-
ment, planning, environment, nature conservation and water resources,
equipment and means of social communication, education and profes-
sional training, etc. (see Arts. 1 and 17 of the Law No. 56/91 of August
13—Framework Law of Administrative Regions). Although recog-
nised in the legal system, administrative regions are not yet actually
established. Under Art. 256 of the Constitution, the institution of the
administrative regions, accompanied by the adoption of the law of cre-
ation of each institution, depends on the referendum, i.e., on the fa-
vourable vote by a majority of voters who have expressed their choices
in direct consultation of the regional scope and for each regional area.
The existence of a double legislative effort should be emphasised, as
the result of the aforementioned Law No. 56/91, which established the
5
For a synthetic perspective of the historical evolution of local autonomy, see Marcello Cae-
tano, Manual de Direito Administrativo, vol. I, 10.ª ed. (reimp.), Almedina, Coimbra, 1997, pp. 315
and ff., 352 and ff.; A. Cândido de Oliveira, Direito…, cit., pp. 11 and ff.; Freitas do Amaral, Curso
de Direito Administrativo, vol. I, 3.ª ed., Almedina, Coimbra, 2006, pp. 538 and ff.; José de Melo
Alexandrino, «Direito das Autarquias Locais», in: Paulo Otero/Pedro Gonçalves (org.), Tratado de
Direito Administrativo Especial, vol. IV, Almedina, Coimbra, 2010, pp. 51 and ff.
6
Portuguese law also recognized the autonomous regions (Azores and Madeira), which are
not local government units (local governments), but entities with political and administrative
autonomy, including legislative power (see Arts. 225 and ff. of the CRP).
7
See. Freitas do Amaral, Curso…, vol. I, cit., p. 658.
507
general principles on the matter (specifically, the terms of creation) and

clarified the respective powers and bodies, and of Law No. 16/98 of 28
April (the law creating administrative regions). As stipulated in the
aforementioned Art. 256 of the Constitution, the creation in particular
of administrative regions was submitted to a referendum. The constitu-
tionality and legality of this proposal was examined and positively
verified by the Constitutional Court through Ruling No. 532/98 of 29
July.8 On 8 November 1998, a referendum on regionalisation was held.
It included two questions: «Do you agree with the establishment of
specific administrative regions?» and «Do you agree with the actual
institution of the specific administrative region in your area of voter
registration?» Although the abstention rate was over 50%, 60.67% of
voters responded negatively to the first question, and 60.62% respond-
ed negatively to the second. To date, no other referendum procedure on
the matter has been held.9
(b) The municipality has a local government which aims to meet the com-
munity’s own interests through the district council. Portuguese munici-
palities therefore correspond to the communes of French law and the
Gemeinde of German law.
(c) The parish is a sub-municipal local government which aims to pursue
the personal interests of the parish community.
3. LEGAL FRAMEWORK OF LOCAL GOVERNMENT
3.1. International Law: the European Charter of Local Self-Government
In Portugal, the most important international instrument in force on local

government is the European Charter of Local Self-government (ECLSG). The
Portuguese government signed the ECLSG on 15 October 1985.10
Since it is an international agreement, the ECLSG is in force pursuant to
paragraph 2 of Art. 8 of the Constitution. Under this provision, «the norms
contained in international conventions duly ratified or approved, shall apply at
internal level following their official publication, while internationally binding
the Portuguese state.» Most of Portuguese academia, basing their opinion on
8
Published in Diário da República, I Série A, No. 174, 30.07.1998, pp. 3660-(13) and ff.
9
��
On the Portuguese regionalization process, see some reflections of Freitas do Amaral, com-
piled in Estudos de Direito Público e Matérias Afins, vol. I, Almedina, 2004, pp. 347 and ff.
10
The ECLSG was approved by the resolution of the Assembleia da República No. 28/90 of
23 October and ratified by the Decree of the President of the Republic No. 58/90 of 23 October.
Both texts are published in the Official Journal, Series I, No. 245, 23.10.1990, p. 4344; the origi-
nal version (in French), as well as the Portuguese translation, are attached to the Resolution (pp.
4344 and ff.).
508
the principle of hierarchy, support the legal (although infra-constitutional) su-

premacy of the international conventions, noting that they enjoy supremacy
over subsequent laws. This solution appears to be supported by a variety of ar-
guments based on the idea that the automatic application of international con-
ventional law, resulting from the interest of national level compliance to the
international order, will be truly guaranteed only with the supra-legality of the
rules set in international conventions—pursuing the ultimate goal that the inter-
nal tier follows international law. The national legislature is not permitted to
suspend or revoke an international convention or to allow the State, by a unilat-
eral act, to evade its assumed international obligations.11
3.2. Domestic Law
At an internal level, it is important to note the importance given to local

government by the Constitution. The relevant constitutional provisions were
implemented by the legislature.
3.2.1. The Constitution
In keeping with Art. 2 of the ECLSG, the autonomy of local authorities is

constitutionally enshrined as a reference of the unitary State (Art. 6) and is one
of the material limits of constitutional review [Art. 288, paragraph n)]. Further-
more, it is a manifestation of the principle of administrative decentralisation
(Arts. 237, paragraph 1 and 267, paragraph 1), the principle of subsidiarity12
(Art. 267, paragraph 1), the democratic principle13 and the constitutive dimen-
sion of the principle of the rule of law.14
11
See Jorge Miranda, Curso de Direito Internacional Público, 4.ª ed., Principia, Parede,
2009, p. 172; Moura Ramos, «A Convenção Europeia dos Direitos do Homem – Sua Posição
Face ao Ordenamento Jurídico Português», in: Documentação e Direito Comparado, No. 5,
1981, pp. 148 and ff.; Azevedo Soares, Lições de Direito Internacional Público, 4.ª ed. (reimp.),
Coimbra Editora, Coimbra, 1996, pp. 98 and ff.; Bacelar Gouveia, Manual de Direito Constitu-
cional, 3.ª ed., vol. II, Almedina, Coimbra, 2009, p. 1241; Jónatas Machado, Direito Internacio-
nal – Do Paradig
12
See also Casalta Nabais, «O Regime das Finanças Locais em Portugal», in: Boletim da
Faculdade de Direito, vol. LXXX, 2004, p. 19.
13
See also Afonso Queiró, «A Descentralização Administrativa Sub Specie Iuris», in: Estu-
dos de Direito Público, vol. II, tomo I, Acta Universitatis Conimbrigensis, Coimbra, 2000, p.
283; Gomes Canotilho, Direito Constitucional e Teoria da Constituição, 7.ª ed., Almedina,
Coimbra, 2003, p. 253; Vieira de Andrade, «Autonomia Regulamentar e Reserva de Lei», in:
Estudos em Homenagem ao Prof. Doutor Afonso Rodrigues Queiró, Boletim da Faculdade de
Direito, Coimbra, 1984; A. Cândido de Oliveira, Direito…, cit., pp. 125 and ff.; Paulo Otero, O
Poder de Substituição em Direito Administrativo: Enquadramento Dogmático-Constitucional,
Lex, Lisboa, 1995, p. 677. V. and paragraph 7 of the Preamble of the CEAL.
14
Gomes Canotilho, Direito…, cit., pp. 253 and ff.
509
Title VIII of the Constitution concerns local government (Arts. 267 to 265).
The categories of local government are outlined (Art. 236) and placed in the
context of administrative decentralisation (Art. 237); their democratic aspect is
deepened (Art. 239) and some of the most relevant aspects of municipal au-
tonomy (e.g., staff, own assets and finance, autonomous regulatory power) are
stated, notwithstanding their submission to administrative supervision (Art.
242). Following a chapter on «General Principles» (Chapter I, Arts. 235 to
243), the subsequent chapters of the Constitution concern the parish (Chapter
II, Arts. 244 to 248), the municipality (Chapter III, Arts. 249 to 254), the ad-
ministrative region (Chapter IV, Arts. 255 to 262) and neighbourhood organisa-
tions (Chapter V, Arts. 263 to 265).
3.2.2 Basic legislation
Several pieces of legislation embody the constitutional provisions concern-

ing local government entities. Among those acts it is worth noting:
– Law No. 11/82 of June 2 (amended by Law No. 8 / 93 of 5 March), which
establishes the creation and extinction of authorities and the designation
and determination of the category of villages;
– Law No. 8/93, March 15 (amended by Law No. 51-A/93 of 9 July), which
approves the legal regime for the creation of parishes;
– Law No. 142/85 of 18 November (amended by Laws Nos. 124/97 of 27
November, 32/98 of 18 July and 48/99 of 16 June), framework law for the
creation of municipalities;
– Law No. 27/96 of August 1, approving the legal system of administrative
supervision;
– Law No. 48/99 of 16 June, regarding the installation of new municipali-
ties;
– Law No. 159/99, September 14, establishing the transfers of functions and
powers for local governments;
– Law No. 169/99 of 18 September (amended by Law No. 5-A/2002, 11
January), which provides the powers as well as the legal regime for the
functioning of municipal and parish bodies;
– Organic Law No. 4/2000 of 24 August, which approves the legal regime
of the local referendum;
– Organic Law 1/2001 of August 14 (amended by Organic Laws 5-A/2001,of
26 November and 3/2005 of 29 August), which regulates the election of
members of local governments bodies;
– Law No. 2/2007 of January 15 (amended by Law No. 3-B/2010, 28 April),
which approves the Local Finance Law;
510
– Law No. 45/2008 of 27 August, which establishes the legal scope of mu-
nicipal associations;
– Law No. 46/2008 of 27 August, which establishes the legal regime of the
metropolitan areas of Lisbon and Porto;
– Decree-Law No. 305/2009 of 23 October, which establishes the organisa-
tion of services within local governments.

AUTHORITIES
Under paragraph 2 of Art. 235 of the Constitution, local governments are

directed to pursue the interests of their constituents through their respective
bodies. In these cases, it is for the legislature to define, with respect to the prin-
ciples of decentralisation and subsidiarity (Arts. 6, paragraph 1 and 237, para-
graph 1) the municipal missions, as stated in Law No. 159/99 of 14 September.
The powers of local authorities correspond to their assigned tasks and du-
ties. Despite the fact that these entities primarily aspire to meet the interests of
citizens, they may also pursue State-delegated tasks. Hence, it is necessary to
distinguish between the roles of local government (which include those that
were directly attributed to them) and those in which there is a transfer of State
tasks to local governments, which are performed by and under their own re-
sponsibility («delegated administration of the State»), and the State tasks for
which the local bodies exercise powers that were transferred to them by the
State to meet its purposes («local de-concentration»).
The responsibilities of local governments are outlined in the aforementioned
Law No. 159/99 of 14 September. Therefore, under Art. 13, paragraph 1 of Law
No. 159/99, the following subjects constitute assignments of the municipalities:
rural and urban equipment (Art. 16), energy (Art. 17), transport and communi-
cations (Art. 18), education (Art. 19), heritage, culture and science (Art. 20),
leisure and sport (Art. 21), health (Art. 22), social welfare (Art. 23), housing
(Art. 24), civil protection (Art. 25), environment and sanitation (Art. 26), con-
sumer protection (Art. 27), promotion of development (Art. 28), urban planning
(Art. 29), local police (Art. 30) and external cooperation (Art. 31).
Paragraph 1 of Art. 14 of Law No. 159/99 defines the powers of the par-
ishes: rural and urban equipment, public water supply, education, culture, lei-
sure and sport, primary health care, social welfare, civil protection, environ-
ment and health, development, urban and rural planning and community
protection.
511
Overall, the powers of the municipalities and those of the parishes are very
similar. The activity of the municipality, however, is more extensive (especially
territorially) and intense15 with regard to the type of powers assigned to their gov-
erning bodies, and because of the different means available to them. A special set
of acts provides the municipalities (as opposed to the parishes) with a wide field
of action in each of these common areas. Consequently, the activities of parishes
are characterized by the minor scope of powers attributed to their governing bod-
ies, due to having less power to act and a narrower territorial range of influence—
since their territorial areas are smaller than those of the municipalities—and due
to having fewer financial, human and technical resources.
The allocation of legal powers to the parish is exhaustive. It is forbidden for the
parishes, except in case of delegation, to execute tasks expressly assigned by law
to municipalities. However, the legislature does provide mechanisms by which the
parishes can substantially increase their role in meeting the needs of local popula-
tions, as occurs under Art. 15 of Law No. 159/99, according to which, «through
the instrument of delegation, in the existence of protocol with the municipality, the
parish is able to invest or manage equipment and municipal services.»
4.2. Local public services
Considering the marked assignments of authorities, we can identify the

main local public services as activities or tasks which are assigned to munici-
palities, and which include the following areas:
– infrastructure and rural and urban equipment: construction, maintenance
and management of green spaces, streets, roads, cemeteries, etc.;
– sanitation: installation, maintenance and management of the municipal
water supply, the municipal system of drainage and treatment of urban
water waste, etc.;
– transport and communications: installation, maintenance and management
of municipal roads, etc.;
– civil protection: creation of municipal fire brigades; construction, mainte-
nance and management of facilities and municipal centres of civil protection;
– energy: supply of low-voltage electricity; street lighting;
– safety: municipal police;
– welfare and culture: organization of school transportation; conservation of
the cultural heritage.
Similar to what has occurred in the case of the public services carried out by
the State, the municipalities, while observing the principle of legality, can also
15
See A. Cândido de Oliveira, Direito…, cit., p. 346.
512
adopt various forms of management of public services that are assigned to them
or that proceed according to their own or specific interests:
– public management: In such cases, the public service is carried out, di-
rectly or indirectly, by the public entities that are the holders of public
service, either through their own resources (physical, financial, technical,
human, etc.) or by other personalized public entities (i.e., legal personality
of public law) to whom the management or administration of a public
service is assigned, while working under its orientation and control. In
«direct» public management, municipal services are particularly relevant.
In «indirect» public administration, the pursuit of public municipal tasks
is deconcentrated and returned to local business entities (legal entities of
commercial type), constituted under Art. 33 and following the Regime
Jurídico do Sector Empresarial Local (RJSEL).
– private management: The management of public services may be entrusted
to private entities, i.e., to entities established and regulated by private law,
generally by commercial law. This relates to municipal companies (in the
strict sense), which form, together with the local business entities, the local
business sector and which are under the influence of municipalities, asso-
ciations of municipalities or the metropolitan areas of Lisbon and Porto.16
The pursuit of public purposes conferred on local authorities implies the

granting of powers of public authority to the respective bodies. Indeed, the
creation of a public entity with public law personality—such as the local au-
thorities—implies their automatic entry into the «public sphere», involves pub-
lic notification of their tasks and determines the entitlement of a public law
capacity, i.e., the ability for a person to use the formal tools of public law action
(public law capacity in the formal sense).17 This means that these entities hold
all the public powers considered by law which are essential to the performance
of public tasks that are entrusted to them.
Therefore, the powers of the local government bodies can be identified only
through analysis of the relevant legislation. These include the powers to:
– authorize: for example, permits corresponding to the prior control of urban
operations (see Arts. 4, paragraph 2 and 5, paragraph 1, of the Regime
Jurídico da Urbanização e Edificação);
16
On the local business sector, see Pedro Gonçalves, Regime Jurídico das Empresas Muni-
cipais, Almedina, Coimbra, 2007; J. Pacheco de Amorim, As Empresas Públicas no Direito
Português (Em Especial, as Empresas Municipais), Almedina, Coimbra, 2000.
17
See Pedro Gonçalves, Entidades Privadas com Poderes Públicos, Almedina, Coimbra,
2005, pp. 252 and ff.
513
– grant concessions: service and public works concessions, mining conces-

sions and private use of public domain, granted by contract or administra-
tive act [under subparagraph c) of paragraph 1 of Art. 2 of the Código dos
Contratos Públicos, local governments are adjudicated entities];
– impose sanctions: application of disciplinary sanctions, imposition of
fines (administrative penalties) pursuant to Art. 59 of Decree-Law 433/82
of 27 October;
– eminent domain: declaration of public utility for purposes of expropriation
or creation of property rights over private property (see Art. 14, paragraph
2 of the Código das Expropriações);
– establish norms: rulemaking. It is worth noting in this respect that the
Constitution gives autonomous normative and regulatory power to the lo-
cal authorities (Art. 241), implying the possibility of the issuance of regu-
lations that, focusing on subjects falling within the sphere of local govern-
ments’ own interests, are the original or primary normative discipline;18
– celebrate referendums: Art. 240 of the Constitution provides that munici-
palities may submit to popular referendum matters within the competence
of their bodies. The legal discipline of the local referendum can be found
in Organic Law No. 4/2000 of August 24.19
Although the essential roles of local government bodies derive from the
Constitution, it is for the Legislative Power to give precise definition to their
designation, description and organic composition. The characterisation of the
representative bodies of local governments will now be examined.
5.1. Local governing bodies: designation and composition
Paragraph 2 of Art. 235 of the Constitution states that local authorities are
endowed with their own representative bodies.20 In turn, Art. 239 clarifies that
the organisation of local governments consists of an assembly with deliberative
powers and a multi-member, executive body responsible before the assembly:
18
On the regulation powers of local governments, see Ana Raquel Moniz, «A Titularidade
do Poder Regulamentar no Direito Administrativo Português», in: Boletim da Faculdade de Di-
reito, vol. LXXX, 2004, p. 538 and ff.; Vieira de Andrade, «A Autonomia…», cit., passim.
19
See, v. g., A. Cândido de Oliveira, A Democracia Local, Coimbra Editora, Coimbra, 2005,
p. 59 and ff.
20
On the bodies of local administration, see A. Cândido de Oliveira, A Democracia…, cit.,
pp. 125 and ff.; José de Melo Alexandrino, «Direito…», cit., pp. 145 and ff.; Maria José Casta-
nheira Neves, Governo e Administração Local, Coimbra Editora, Coimbra, 2004, pp. 60 and ff.
514
this assembly is elected through direct, universal and confidential suffrage of

the citizens registered in the area of the respective local government. The ex-
ecutive body is composed of an adequate number of members, and the presi-
dent is the first candidate of the most voted list, either for the assembly or for
the executive body, depending on the legislative option.
5.1.1. Municipal governing bodies
In accordance with Art. 250 of the Constitution, the representative bodies of

municipalities are the municipal council (assembleia municipal), the «munici-
pal board» (câmara municipal) and the mayor (presidente da câmara)
The municipal council or «assembly» (assembleia municipal) is the main
municipal deliberative body, directly elected through the d’Hondt method for a
term of four years. It is comprised of the presidents of the «juntas» (ex officio
members) as well as elected members numbering no fewer than the councils.
The number of elected members should not be less than three times the number
of members of the municipal board (see Art. 42 of Law No. 169/99). Political
parties, coalitions and groups of citizen voters are eligible to run for municipal
council member positions (see Art. 16, paragraph 1 of the aforementioned Or-
ganic Law No. 1/2001). The council chooses from among its members and
through secret ballot (see Art. 46 of Law No. 169/99) the president of the coun-
cil and the two secretaries, whose powers are defined in Arts. 54 and 55 of Law
No. 169/99.
The «municipal board» is the executive body, directly elected for a four-
year term through the d’Hondt method by the registered voters in the area. It is
a multi-member body composed of the mayor and the city councillors, one of
which is appointed as vice president (see Art. 56 of Law No. 169/99). Political
parties, coalitions and groups of voters are eligible to run for municipal hall
positions (see Art. 16 of Organic Law No. 1/2001). The election takes place
simultaneously with that of the municipal council. The number of members of
the municipal board is outlined in Art. 57 of Law No. 169/99. In addition to the
mayor, the municipal board is constituted by a variable number of city council-
lors (depending on the number of voters) ranging from 16 (in Lisbon) to four
(in municipalities with fewer than 10,000 voters). It is up to the mayor to choose
from among the elected members those with whom he wants to work and to
whom to distribute the portfolios (cf. Art. 69 of Law No. 169/99). The powers
of the municipal board are set out in Art. 64 of Law No. 169/99.
The «mayor» or «chairman of the municipal board» (presidente da câmara)
is an autonomous governing body of executive nature. Although the Constitu-
tion does not refer to him as a governing body of the municipality, the mayor,
who has his own powers, is recognised as such. Even though the legislature has
established his direct election, this solution is not constitutionally imposed, as
515
is clear from paragraph 3 of Art. 239 of the Constitution. As already stated, the
mayor is the candidate put in the first place of the list which gains the most
votes in the elections to the municipal board (see Art. 57, paragraph 1, of Law
No. 169/99). In case the post is left vacant, the mayor (or, in case of a coalition,
the citizen from the proposed party) is the following candidate on the list (see
Arts. 57 and 79 of Law No. 169/99). Similar to that of the other local governing
bodies, the mandate of the mayor is for four years (see Art. 75).
The mayor has his own as well as delegated powers (see Arts. 68 and 65 of
Law No. 169/99) and can delegate or sub-delegate to the city councillors and,
with the exceptions provided by law, should be informed of the performance of
those tasks.
5.1.2. Parish bodies
Under Art. 244 of the Constitution, the parish assembly (assembleia de

freguesia) and the parish board (junta de freguesia) are the representative gov-
erning bodies of the parish.
The parish assembly is the deliberative body of the parish and is elected by
direct, universal and secret vote by the Hondt method for a term of four years
(see Art. 4 of Law No. 169/99). Political parties, coalitions and groups of voters
can run for parish assembly positions (see Art. 16 of Organic Law No. 1/2001).
This body is comprised of a variable number of members, depending on the
number of registered electors in the area of the parish (see Art. 5 of Law No.
169/99). The assembly elects, by secret vote, its own president and secretaries
(cf. Art. 9 of Law No. 169/99), as well as other councillors who, together with
the chairman of the council, will join the parish council. The powers of the par-
ish assembly are provided for in Art. 17 of Law No 169/99. Articles 19 and 20
of the same law define the powers of the president of the parish assembly and
of the secretary, respectively.
The parish board consists of the president (the candidate who gained the
most votes from the Assembly) and of members elected by the parish assembly,
two of whom assume the duties of secretary and treasurer. When the parish has
150 or fewer voters, the chairman of the board is elected by the registered elec-
tors in the parish (see Art. 24 of Law No. 169/99). Under this provision, the
number of members of the parish assembly varies according to the number of
registered electors in the area of the parish. The parish board is an executive
body (see Art. 34 of Law No. 169/99). It has competences, inter alia: (a) over
its own organization and the functioning of its services with respect to current
management; (b) in the planning of the respective activity and financial man-
agement; (c) in territorial planning and urbanism; (d) in the field of integrated
equipment in their heritage, as well as in their relations with other local govern-
ment bodies. Apart from its «own» powers, this body may discharge other com-
516
petences, that delegated by the municipal board (see Art. 37. of Law No.
169/99). In turn, it can itself delegate powers to its chairman (see Art. 35 of
Law No. 169/99).
5.2. Municipal cooperation: municipalities and parishes associations
Art. 253 of the Constitution expressly allows for the creation of associations
and federations of municipalities for the administration of common interests.
Although there is no similar provision regarding the parish, this should be un-
derstood from Art. 10 of the CEAL, which recognizes any local government’s
right of association.
One method of municipal cooperation is the establishment of representative
associations of municipalities and parishes (whether or not of public nature),
which are intended, as the name suggests, to allow their institutional representa-
tion in sovereign bodies and the central government and to allow for cooperation
with the central government in matters related to their participation in interna-
tional organisations (Law No. 54/98 of 18 August). These associations, when
established at the national level in accordance with Art. 3 of the aforementioned
Law No. 54/98, acquire the status of a State partner and are conferred the rights
of prior consultation in all legislative initiatives relating to matters within their
competence. There are currently two associations that embody national associa-
tions for this purpose: the Associação Nacional de Municípios Portugueses
(ANMP) and the Associação Nacional de Freguesias (ANAFRE).
The legislature also establishes other methods of municipal association. Un-
der Law No. 45/2008 of 27 August, there are two kinds of associations of mu-
nicipalities: «multi-purpose associations» and «associations for specific purpos-
es». The local multi-purpose associations, called «inter-municipal communities»
(CIM), are legal entities under public law established by municipalities and cor-
respond to one or more territorial units defined according to the Nomenclature
of Territorial Units for Statistics of level III (NTUS III). They are intended to
promote the planning and management of the economic, social and environmen-
tal strategy, articulation of inter-municipal investments and participation in the
management of regional development programs, particularly under the National
Strategic Reference Framework (NSRF). The associations of municipalities for
specific purposes are legal entities under private law established for the common
realization of the specific interests of the municipalities that integrate them and
for the defence of collective interests at the sectoral, regional or local level.
On the other hand, there is a specific type of municipal association in the
metropolitan areas of Lisbon and Porto. Law No. 46/2008 of 27 August states
that the metropolitan areas of Lisbon and Porto are legal entities under public
law and constitute a special kind of association of municipalities covered by the
territorial units defined on the basis of NTUS III of «Grande Lisboa e da Penín-
517
sula de Setúbal» and of «Grande Porto e de Entre Douro e Vouga», respec-

tively. These entities are intended to satisfy a wide range of public purposes, for
example: participation in the preparation of plans and public investment pro-
grams with a focus on the metropolitan area; promotion of the planning and
management of economic, social and environmental strategies; articulation of
metropolitan municipal investments; etc.
6. HUMAN RESOURCES
Paragraph 1 of Art. 243 of the Constitution ensures that local authorities will
have their own staff. This is a corollary of the administrative autonomy of these
entities, since in the pursuit of their particular and specific interests it is vital for
them to have and manage their own human resources.
Law No.12-A/2008 of 27 February21 establishes the contractual ties, job
profiles and salaries of workers who perform public functions (public officials,
administrative agents and public agents).22 Following the adjustments intro-
duced by Decree-Law No. 209/2009 of 3 September, this law applies to the
municipal administration. Hence, in general, local government employees are
subject to the employment law (the legal regime of public employment), simi-
lar to other public employees.
The legal relation of public employment is concluded through a contract of
employment or service commission under Law No.12-A/2008 (in particular
Arts. 20 and ff.) and paragraph 1 of Art. 2 of Decree-Law No. 109/2009. It is
also possible to conclude contracts concerning the provision of services (see
Arts. 35 and ff. of Act No. 12-A / 2008, and Art. 6 of Decree-Law No. 109/2009).
The management of local government human resources is overseen by the re-
spective governing bodies: the deliberative bodies (the municipal and parish
assemblies) determine the staff,23 and the executive bodies (the city hall and the
parish council) manage the approved staff (see Arts. 3 and 4 of Decree-Law No.
209/2009). It is worth noting that human resource management entails the pos-
sibility of advertising the procedure (open competition) for the recruitment of
workers needed to occupy some or all foreseen (and vacant) approved staff
positions (see Art. 9 of Decree-Law No. 209/2009).
Workers who hold the category of management personnel benefit from a
special legal regime contemplated in Law No. 2 / 2004 of January 15, adopt-
21
Altered by Law No. 64-A/2008, of 31 of December, 3-B/2010, of 28 April, 34/2010, of 2
September and Law No. 55-A/2010, of 31 December.
22
On workers’ categorization, see Ana Neves, «O Direito da Função Pública», in: Paulo
Otero/Pedro Gonçalves, Tratado de Direito Administrativo Especial, vol. ��
IV, Almedina, Coim-
bra, 2010, p. 478 and ff.
23
The staff maps contain the indication of the number of positions that the body or service
requires for the development of its activities (see Article 5, No. 1, of the Law No. 12-A/2008).
518
ed by the municipal administration by Decree-Law No. 93/2004 of 20 April.

The directors are both workers and holders of administrative positions that
require, as a rule, higher technical preparation, evidenced by the fact that
they have (even if only partially) the same public interest as te public enti-
ty24. It is easy to understand the legislative requirements placed on the exer-
cise of leadership functions in the case of local governments, which involve
the use of specific courses for high management in the public or municipal
administration, differentiated according to the level, grade and content of
functional positions, and under the responsibility of the Fundação CEFA—
Centro de Estudios e Formação Autárquica (see Art. 7 of Decree-Law No.
93/2004).
Article 238 of the Constitution—establishing the financial autonomy of lo-

cal governments25 —provides that they have their own finances, the legal status
of which results from the Law and seeks a fair distribution of State resources to
local governments, as well as the necessary correction of inequalities between
local authorities of the same tier. That provision also recognizes the ownership
of municipal powers and the existence of tax revenue for local governments,
which necessarily includes tax revenues from the management of their assets
and the charges for the use of their services.
The financial autonomy of local governments is recognised in paragraph 2
of Art. 3 of Lei das Finanças Locais (LFL) and consists of the powers to for-
mulate, adopt and modify plan options, budgets and other documents; to pre-
pare and approve documents of accountability; to exercise the powers of taxa-
tion to which they are legally committed; to collect and use the funds as foreseen
by law and order processing expenses lawfully authorized; and to manage and
allocate their own wealth. The identification of local revenue consists of LFL
(see Art. 10), including taxes, fees and prices; transfers from the State; and the
use of credit and other income (see Arts. 10 and 17, concerning municipalities
and communes, respectively).
7.1. Taxes and fees of local governments
One way for municipalities to raise money is through local taxes, hoc sensu,
revenues that those entities have the power to tax (i.e., the power to create and
24
See also Ana Neves, «O Direito…», cit., p. 476.
25
On this subject, see Casalta Nabais, «A Autonomia Financeira das Autarquias Locais», in:
Boletim da Faculdade de Direito, vol. LXXXII, 2006, pp. 15 and ff., and «O Regime das Finan-
ças Locais em Portugal», in: Boletim da Faculdade de Direito, vol. LXXX, 2004, pp. 15 and ff.
519
define their key elements) or revenues on which they have a holding.26 The
exercise of this taxing power is in conjunction with the determination of the
local property tax; i.e., the tax on the taxable value of rural and urban properties
located in Portuguese territory (see Art. 1 of the Code of IMI). The possibility
of a special levy (derrama)—an addition on the taxable corporate income (see
Art. 14 of LFL)—is also in conjunction with the determination of the local
property tax.
From the perspective of municipal financing, those items subject to taxation
are particularly relevant. Municipalities are entitled to collect the municipal
real estate tax, the municipal tax on vehicles (for the use and enjoyment of mo-
tor vehicles, aircraft and boats) and the special levy [see Art. 10, paragraphs a)
and b) of the LFL]. In turn, the municipalities are entitled to 50% of the revenue
of the municipal real property tax on rustic buildings.
Another source of tax revenue for local governments consists of rates,27
charges and fees, that are based on the supply of a local public service, on the
private use of goods of public and private domain of local government or on the
removing of a legal obstacle to the behaviour of individuals (see Art. 3 of the
Regime Geral das Taxas das Autarquias Locais, RGTAL). They are created by
administrative regulation of the local council. Municipal fees are imposed on
either private activities which have a negative environmental impact or on pri-
vate utilities provided to individuals or generated by the activities of munici-
palities. The latter mainly include, among others, fees for: the maintenance and
enhancing of primary and secondary urban infrastructure facilities; the granting
of licenses; the use and enjoyment municipal public and private property; the
management of traffic and parking areas; the management of public facilities
for collective use; etc. Parish fees follow the same pattern.
7.2. Other revenues
Municipal financing has other sources of income apart from tax revenues.
Thus, municipalities receive income from the services rendered and goods sup-
plied under direct management by municipal units or by local services; from
the participation in public resources (calculated in accordance with Arts. 19 and
ff. of the LFL); from fines and penalties imposed by municipal law or regula-
tion; from the income from their own assets, movable or realty, which are ad-
ministered by them, given through concession or transferred for exploration;
from the participation in the profits of companies and the results of other enti-
ties in which the municipality takes part; from the inheritances, legacies and
other donations to the municipality; from the sale of assets, whether movable or
26
See Casalta Nabais, «A Autonomia…», cit., p. 33.
27
On the general regime of local government rates, see, for example, Suzana Tavares da
Silva, As Taxas e a Coerência do Sistema Tributário, CEJUR, Braga, 2008, p. 70 and ff.
520
immovable; and from loans, including those resulting from the issuance of mu-
nicipal bonds (see Art. 10 of LFL).
Parishes are also financed through equivalent sources (see Art. 17 of LFL).
Paragraph 1 of Art. 128 of the Constitution guarantees the municipalities their

own assets. The legal regime of public entities’ assets (and, therefore, also those
of local authorities) means that the assets of these two entities incorporate either
the public or private domain. The public domain falls under an administrative-
law regime and is characterized by the removal of the property from the private
trade and identifies itself with the right of public ownership or «public domain»,
in the Roman-French sense. The private domain implies the submission of the
property to a private law regime characterized by the intervention of legal and
administrative rules which take into account the public nature of the holder.
8.1. Local public domain
The existence of the public domain in local government ownership28 is con-

stitutionally imposed (see Art. 84, paragraph 2 of the Constitution). This is an
important assertion, assuming that Art. 84 is an institutional guarantee,29 espe-
cially in a legal system such as Portugal’s, in which there is not a separate law
specifically devoted to identifying the local public domain (e.g., Decree-Law
No. 477/80 of 15 October, which contains the register of State property).
The institutional guarantee of the local public domain cannot be dissociated
from the guarantee of local autonomy. Public domain as a specific legal regime
is understood to be a tool or a necessary instrument that assists local authorities
to pursue their public functions. Therefore, patrimonial autonomy is implicit to
local autonomy, which also entails the existence of a public domain in munici-
pal ownership. The reference in paragraph 1 of Art. 238 to the ‘own property’
of local governments encompasses property in the private domain but, in full
accordance with the provisions of paragraph 2 of Art. 84, also requires the ex-
istence of a municipal public domain.
When identifying the assets in the municipal public domain, the lack of a
specific law on the authorities’ assets is obvious. The difficulties loom larger if
28
��
On public local domain, see Ana Raquel Moniz, «Domínio Público Local: Noção e Âmbi-
to», in: Domínio Público Local, CEJUR, Braga, 2006, p. 7 and ff., and «O Âmbito do Domínio
Público Autárquico», in: Estudos em Homenagem ao Professor Marcello Caetano, vol. I, Facul-
dade de Direito da Universidade de Lisboa/Coimbra Editora, Coimbra, 2006, p. 153 and ff.
29
In the same vein, Freitas do Amaral, Curso de Direito Administrativo, vol. ��
II, 2.ª ed. Al-
medina, Coimbra, 2011, p. 576, No. 980.
521
there is a territorial match in the spatial scope of the exercise of local govern-
ments’ powers and those of the State (and the autonomous regions). Moreover,
there is no statute which defines precisely the local governments’ assets and
provides details on the kinds of property that are submitted to the dominion
status or which at least indicates the criteria by which this distinction is made.
Despite these difficulties, it is possible to ascertain from some existing leg-
islation which assets belong to the public domain:
– infrastructural road domain, belonging only to the municipality and inte-
grated by the municipal road network (as defined by the Plano Nacional
Rodoviário),30 as well as public transport routes—which include traffic
routes, their subsoil and the corresponding airspace, sidewalks, plants, re-
taining walls, traffic signs, artwork, tunnels and all things natural to the
performance of useful public function in determining the dominion of the
roads—as well as squares and associated landscaping;
– public domain waters: In accordance with paragraphs 2 and 3 of Art. 6 of
Law No. 54/2005 of 15 November, the lakes and ponds located entirely in
the parish or municipal land or in wastelands and municipal or parish com-
mon areas belong to the public domain of the municipality or parish. Also
part of the municipal domain is the rainwater falling on public local lands,
as are the waters born and the underground waters on the same grounds
[see Arts. 6, paragraph f), 7 paragraphs a), c) and f) and 8, paragraph 2].
Finally, the fountains and public reservoirs—also qualified as «public wa-
ters»—belong to the entrusted entity responsible for their administration
and funding [see Arts. 7, paragraph e) and 8, paragraph 2], allowing for an
approximation to the theory of aménagement spécial.
– cemeteries, belonging to both the municipality and the parish.
8.2. Local private domain
If the public domain is defined in positive terms, the private domain can be
defined in a residual way: in short, the private domain is comprised of all things
owned by the municipalities that are not included in the public domain (or
which are not submitted to a public domain rule). In this sense, the private do-
main is formed by «all the goods belonging to public entities that are in princi-
ple, though not exclusively, submitted to the laws on property laid down in the
civil law and therefore subject to the private legal trade, without prejudice to
some public law exemptions, where applicable in each case.»31 As we can ob-
30
Decree Law No. 222/98, of 17 July, with the continuous changes of the Law No. 98/99, of
26 July, and of Decree-Law No. 182/2003, of 16 August.
31
��
Bernardo Azevedo, «O Domínio Privado da Administração», in: Paulo Otero/Pedro Gon-
çalves, Tratado de Direito Administrativo Especial, vol. III, Almedina, Coimbra, 2010, p. 46.
522
serve from this concept, and similarly from what is true for the public domain,
the concept of private domain concerns both a set of goods and a legal regime.
Since local «private domain» is governed as a rule by private law, the applica-
bility of administrative law features stems from the public «ownership» of
those goods, while in the case of the public domain, the public law regime of
this goods stems from the public function of the goods in question.
Local authorities activities are subject to various controls (lato sensu),

namely: administrative, financial, judicial and political.
9.1. Administrative control
The most obvious form of control32 of local entities is the one performed by
other administrative agencies. The concept of administrative control over local
authorities is stated in Art. 242 of the Portuguese Constitution, which provides
that it consists of «verifying compliance with the law by the local governments
and is exercised in cases and in the manner prescribed by law». It is also legally
established by Law No. 27/96. The supervising body is the central government
[see Art. 199, paragraph d) of the Constitution and Art. 5 of Law No. 27/96];
regarding the control of the local governments within the autonomous regions,
the regional governments are the supervising bodies [see Art. 227, paragraph 1,
m) of the Constitution, Art. 69, paragraph e) of the Estatuto Político-Administra-
tivo da Região Autónoma da Madeira, Art. 90, paragraph 1, g) of the Estatuto
Político-Administrativo da Região Autónoma dos Açores and also Art. 1 of the
Regional Legislative Decree No. 6/98/M of the Madeira Autonomous Region].
If, according to Art. 242 the control of legality is intended to ascertain the
lawfulness of the actions of the subordinate entity,33 then the definition of the
32
The adoption of this formula means that there are other forms of administrative supervi-
sion of municipal activity distinct from that of «control». For instance, the functions exercised by
the Ombudsman, who is responsible for the assessment of complaints made by citizens (in par-
ticular under the right of petition set out in No. 1 of Art. 52 of the Constitution), by acts or omis-
sions of public authorities (see Art. 23 of the Constitution).
33
Generally, on the notion of control, see Pedro Gonçalves, O Novo Regime Jurídico da
Tutela Administrativa sobre as Autarquias Locais, CEFA, Coimbra, 1997, pp. 7 and ff.; from an
analitical perspective, André Folque, A Tutela Administrativa nas Relações entre o Estado e os
Municípios, Coimbra Editora, Coimbra, 2004, pp. 289 and ff. (identifying, within the concept,
the functional elements, material, structural and teleological). On the concept of control of law
(one of the classifications of tutela, as an end), see Freitas do Amaral, Curso…, vol. I, cit., pp. 883
and ff. As for the meaning and content of tutela with respect to local governments, see André
Folque, A Tutela..., cit., passim, especially pp. 235 and ff.; José de Melo Alexandrino, «Direi-
to…», cit., pp. 262 and ff.
523
precautionary measures is not provided at the Constitutional level, but must be

defined by ordinary legislation [see also Art. 165, paragraph 1, q) of the Con-
stitution and Law No. 27/96 of August 1].
Since it does not seem correct to argue that, ex constitutione, the control of
local governments is merely inspective in nature, the establishment of any
measures involving a substitute control would be unconstitutional, as they
would undermine the principle of local autonomy, raising doubts as to the pos-
sibility of the legislative prediction of a revocatory ownership.34 Since the al-
location to the controlling body of the power to override the local government,
suppressing the illegal omissions, is not deemed constitutionally feasible, and
since the legislature does not contemplate the possibility for the controlling
body to revoke the acts committed by the local governments, few doubts persist
as to the unacceptability, in the current legal system, of the possibility of at-
tributing to the controlling bodies the powers of revocation or cancellation of
the acts of the measures of local bodies.
It is important to emphasize here the role of the Inspecção-Geral da Admin-
istração Local (IGAL), which, pursuant to paragraph 1 of Art. 3 of Decree-Law
No. 326-A/2007 of September 28, is obliged to ensure, within the scope of the
powers legally entrusted to the government, the exercise of the administrative
and financial control to which the local governments and the local business
communities are constitutionally submitted.
The penalties associated with the exercise of control lead back to what we des-
ignate as legal and political responsibility, consisting of the loss of mandate and, in
extreme cases, the dissolution of the governing body (see Art. 7 of Law No. 27/96).
It is necessary to emphasize two points related to this kind of action. The first
is to note that it is restricted to members of representative bodies (in the case of the
loss of mandate) and to its own bodies or equivalent entities (in the case of the dis-
solution of the bodies), and does not compromise a worker or public entity’s re-
sponsibility. The second is to highlight that this liability relates to the relationship
of control established between the central government and local governments and,
to that extent, follows a control procedure which is regulated by Law No. 27/96.
The situations which may cause the members of local authorities to lose
their mandates and the governing bodies to be dissolved are foreseen in Arts. 8
and 9, respectively, of Law No. 27/96. The application of these sanctions, how-
ever, will occur only in situations where they are justified on grounds of exclu-
sion of the guilt of those officers (see Art. 10 of Law No. 27/96).
34
There is no unanimity in doctrine regarding the constitutional admissibility of revocatory
control. See Paulo Otero, O Poder…, vol. II, cit., p. 806; Pedro Gonçalves, O Novo Regime…,
cit., p. 15; Freitas do Amaral, Curso…, vol. I, cit., p. 888; Maria da Glória Garcia/André Folque,
«Artigo 242.º», in: Jorge Miranda/Rui Medeiros, Constituição Portuguesa Anotada, tomo III,
Coimbra Editora, Coimbra, 2007, pp. 504 and ff., annotations XIV and XV; André Folque, A
Tutela…, cit., pp. 365, 373 and ff.
524
The application of such sanctions does not automatically result in a judicial

sentence. After receiving the report of the competent member of government on
the need to bring about the loss of mandate or dissolution in a given local au-
thority, the prosecutor has the duty to propose such an action in the administra-
tive courts within 20 days after hearing the main facts and within five years
after the occurrence of the said facts (see Art. 11 of Law No. 27/96).
A court decision declaring the loss of mandate or the dissolution of the local
body is effective immediately. Persons who have suffered a loss of mandate or
who were members of the dissolved bodies cannot be part of the administrative
committee referred to in Art. 14 of Law No. 27/96. Under paragraph 2 of Art. 12
of the same law, this effect does not apply, however, to the members of the dis-
solved body that voted against or who did not participate in the deliberations, did
not implemented the controversial local decisions or did not omit the legal duties
to which they were bound and which caused the dissolution of the body.
Finally, it is necessary to refer to the subsequent procedure of judicial deci-
sions regarding the implementation of the sanction. Regarding the loss of man-
date, and although Law No. 27/96 does not provide a specific solution, vacan-
cies which arise in local government bodies will be filled by the successive
citizen in the order of the list or, in the case of coalition, by the next citizen of
the party which was responsible for the vacancy. When this is not possible, the
vacancy will be filled by the citizen immediately following in order of prece-
dence on the list submitted by the coalition. If this, too, is not possible, and
when the affected bodies are the parish assembly, the president of the parish
council, the municipal assembly or the city hall, it is necessary either to hold a
new election (see paragraph 2 of Arts. 11, 29, 47 and 59) or for the municipal
assembly to elect a new member to the parish council [Art. 29, paragraph 1, b)].
In cases of dissolution of the deliberative body of the parish (parish assem-
bly) or the municipal executive body (city hall), the government nominates an
administrative committee with executive functions which must reflect the com-
position of the dissolved body (Art. 14). In the case of dissolution of other bod-
ies (including the parish council and local assembly), there is no nomination of
any committee. In any circumstance, the election must occur within 90 days af-
ter the decision becomes final, unless if, within the same period of time, general
elections were scheduled for the local governments (Art. 14, paragraph 3).
9.2. Financial control
Pursuant to Art. 2, paragraph 1, c) of Lei de Organização e Processo do

Tribunal de Contas (LOPTC),35 local governments and their associations or
35
Law No. 98/97, of 26 August, altered by Laws Nos. 87-B/98, of 31 of December, 1/2001,
of 4 January, 55-B/2004, of 31 December, 48/2006, of 29 August and 35/2007, of 13 August.
525
federations and their services, as well as metropolitan areas, are subject to the
jurisdiction and to the powers of control by the Court of Auditors and are, ac-
cordingly, bound by the obligation of accountability [Art. 51, paragraph 1, m)].
Similarly, Art. 51 of LFL provides that the accountability of the local govern-
ments, parishes and their associations is remitted to the executive bodies of the
Court of Auditors.
If the Court of Auditors encounters any constituting fact of financial respon-
sibility, as part of its supervisory powers—especially in the case of externally
verified accounts (Art. 54)—, it will refer such cases to the prosecutors (Art.
57) in order to start the procedures stipulated in Art. 58 (trial accounts and fi-
nancial responsibilities). In this context, we must establish a distinction be-
tween two types of resolutions:
– financial responsibility (see Arts. 59 to 64): In cases of misallocation or
misuse of public monies or valuables and unjustified payments, the Court
may require the responsible person (determined in accordance with Arts. 61
to 63) to repay the amounts covered by the infraction, plus the default inter-
est, to which is applied the system of tax debts; in cases of acts of practice,
authorization or sanctioning with malice or gross negligence involving the
non-settlement, collection or delivery of revenue in violation of applicable
legal rules, the Court of Auditors may order the responsible person to repay
the amount not collected by of the State or any public bodies (Art. 60)
– sanctions for financial responsibility (Arts. 65 to 67): In the situations re-
ferred to in paragraph 1 of Art. 65 and paragraph 1 of Art. 66, the Court
may impose fines, depending on the seriousness of the facts and their con-
sequences, the degree of culpability, the amount of material public values
affected or at risk, the hierarchical level of responsibility, their economic
situation, the existence of precedents and the degree of compliance with
any court recommendation.
9.3. Judicial control
Judicial control of local governments’ actions is carried out, in essence, un-

der administrative justice.36
This requires three clarifications:
– First, it is vital to emphasize that today, unlike previously, there is no spe-
cific municipal litigation to constitute the subject of judicial inspection of
the acts of the local governments submitted to an autonomous legal treat-
36
See Isabel Celeste Fonseca, «Direito do Contencioso Administrativo Autárquico», in:
Paulo Otero/Pedro Gonçalves (org,), Tratado de Direito Administrativo Especial, vol. IV,
��
Alme-
dina, Coimbra, 2010, pp. 309 and ff.
526
ment in light of the actions of entities of the public administration. To this

extent, and considering the principle of effective judicial control (consti-
tutionally enshrined in Art. 268, paragraph 4 of the Constitution and le-
gally recovered in Art. 2 of the Código de Processo nos Tribunais Admin-
istrativos—CPTA), authoritarian actions or parity actions are subject to
assessment by the administrative courts, through special administrative
action (Arts. 46 and ff. of the CPTA) and overall administrative action
(Arts. 37 and ff. of the CPTA), notwithstanding special procedures—for
example, in the area of public procurement (urgent pre-contractual litiga-
tion: Arts. 100 and ff. of the CPTA) and the right to information (sub-
poena to provide information, consultation of cases or issuance of certifi-
cates: Arts. 104 and ff. of the CPTA). It is necessary to emphasize that,
with respect to illegal administrative decisions of local governments, the
legislature, following the national legal tradition, evokes a popular local
action: in accordance with paragraph 2 of Art. 55 of the CPTA, «any voter,
in the enjoyment of his civil and political rights, is allowed to challenge
decisions taken by bodies of local governments located in the district
where he is registered to vote.»
– Second, it is important to note that administrative jurisdiction is not lim-
ited to acts of a public nature and may even include private law actions by
the local governments: this is what happens in cases of actions relating to
municipal liability (which include claims of indemnity for all damages
suffered in the exercise of the administrative function and also for dam-
ages resulting from acts of private management) or public contracts (not
only administrative contracts): see the scope of administrative jurisdiction
outlined in Art. 4 of the Estatuto dos Tribunais Administrativos, in par-
ticular, paragraph 1, e) and h).
– Third, the submission of municipal legal activity to administrative juris-
diction does not imply that there are no aspects of judicial control returned
to the other courts. Examples of this are trials relating to the criminal re-
sponsibility of local elected officials, whose legal regime is set out in Law
No. 34/87 of 16 July37 regarding the criminal responsibility of politicians.38
9.4. Political control
Besides the direct responsibility of local politicians towards the voters, there
are situations of political responsibility before other bodies (institutional liability
policy). This type of liability is also constitutionally imposed at the level of local
government: in accordance with paragraph 1 of Art. 239 of the Constitution, the
37
Altered by Laws Nos. 108/2001, of 28 November, and 41/2010, of 3 September.
38
For purposes of this law, the representative body’s member of the local government holds
political office [see Art. 3, paragraph 1, i)].
527
executive body of the local government is responsible before the assembly.

Thus, while the other members—but not the president—of the junta de fregue-
sia are elected by the assembleia de freguesia (Art. 24, paragraph 2 of Law No.
169/99), the latter can only approve a motion of censure against the junta as a
way of assessing the action taken by that body or any of its members [Art. 17,
paragraph 1, p) of Law No 169/99]. A similar situation exists in relations be-
tween the assembleia municipal and the câmara municipal: it is up to the «as-
sembleia» to vote on motions of censure against the câmara , also as a means of
evaluating its members’ performance [Art. 53, No. 1, paragraph l)]. Note, how-
ever, that in both cases the approval of the censure motion has only political
implications (discredit of the executive body before the citizens), regardless of
any legal consequence resulting from the dismissal or removal of the said body.
Although the principle of local autonomy is enshrined in the Portuguese

Constitution, there are no specific mechanisms for its judicial protection. The
constitutional consecration of this principle, however, has significant impact
when determining the invalidity of public bodies’ acts which offend it.
In the case of an action taken by other governmental agencies (in particular,
but not only, the central government) which undermines the autonomy of the
local authorities, the law recognizes the possibility of recourse to administra-
tive courts. The reaction against unconstitutional regulatory standards and un-
constitutional administrative acts under administrative justice is especially im-
portant. The procedural legitimacy of local authorities in those actions
protected by paragraph 1 of Art. 9 of the 2Procedural Regulations of Adminis-
trative Courts», Código de Processo dos Tribubais Administrativos (CPTA).
The admissibility of inter-administrative disputes is achieved through various
procedural means. For instance, in the case of challenges of administrative de-
cisions, or when Public Administration refrain to adopt a given administrative
adjudication, the legislator recognises standing to any public-law person or
body, for the protection of their rights and the interests that they are supposed
to advance [see Arts. 55, paragraph 1, c) and 68, paragraph 1, b) of CPTA].
As commentators have emphasised,39 the greatest problems result from a
lack of mechanisms available to local authorities to react to legislative offences
against local autonomy. In fact, a reaction against legislative rules (which, in
the Portuguese legal system, are issued either by the Parliament in the form of
a statute or by the central government in the form of a decree-law) that violate
local autonomy requires triggering a process of constitutional examination.
39
See, in particular, José de Melo Alexandrino, «Direito…», cit., pp. 87 and ff., and «O
Défice de Protecção do Poder Local: Defesa da Autonomia Local perante o Tribunal Constitucio-
nal?», in: Direito Regional e Local, No. 5, 2009, pp. 9 and ff.
528
However, access to the Constitutional Court for a declaration of unconstitution-

ality with the general mandatory force of law is forbidden to local governments.
The only option for these entities is to raise the incident of unconstitutionality
of laws (for violation of the local autonomy) in the context of a law-suit submit-
ted to any court of the nation (see Art. 204 of the Constitution).
The deepening of the European integration process as a task pursued by the

State assumes and also involves local authorities. Although the Constitution
does not clarify the scope of local government’s commitment in this process,
there are somes laws and regulations on this matter: thus, one of the municipal
powers is precisely that of external cooperation, legally concerned with the par-
ticipation in projects and activities of decentralised cooperation, including with-
in the European Union (see Art. 31 of Law No. 159/99); in line with this rule, see
f) of paragraph 4 of Art. 64 of Law No. 169/99, which provides that it is for the
city council to decide on the municipality’s participation in projects and activi-
ties of decentralised cooperation, particularly within the European Union.
The importance of local governments’ involvement at the European level is also
evidenced by their representation on the Committee of the Regions. The criteria for
the selection of the Portuguese delegation to this body are set out in Resolution of
the Assembleia da República No. 1/94 of January 25. This resolution foresees, to-
gether with the representation of each of the autonomous regions, the representation
of local elected representatives, through consultation with the ANMP. The appoint-
ments of members of the Portuguese delegation within the Committee of the Re-
gions must respecting the actual representative character of the local politicians and
the expression of plural representation, according to the principle of proportionality
and through the application of the d’Hondt system. The current delegation, com-
posed of 12 full members and 12 alternates, contains 10 elected local officials
(mayors or presidentes da câmara) as effective members and 10 alternate members
(see Resolution No. 29/2009 of the Council of Ministers).40
12.1. Cases and decisions on local self government
(A) Case-law from the Constitutional Court
Ruling No. 74/84, of 10 July, in: Diário da República, I Série, No. 211,
11.09.1984, pp. 2816 and ff.
40
Published in Diário da República, II Série, Parte C, No. 241, 15.12.2009, p. 50513.
529
Ruling No. 248/86, of 16 July, in: Diário da República, I Série, No. 212,
15.09.1986, pp. 2559 and ff.
Ruling No.330/94, of 13 April, in: Diário da República, II Série, No. S-200,
30.08.1994, pp. 8996-(4) and ff.
Ruling No. 390/98, of 26 May, in: Diário da República, II Série, No. 259,
09.11.1998, pp. 15834 and ff.
Ruling No.57/95, of 16 February, in: Diário da República, II Série, No. 87,
12.04.1995, pp. 4041 and ff.
Ruling No. 93/2000, of 15 February, in: Diário da República, II Série, No. 76,
30.03.2000, pp. 6051 and ff.
Ruling No. 107/2003, of 19 February, in: Diário da República, II Série, No. 95,
23.04.2003, pp. 6214 and ff.
Ruling No. 711/2006, of 29 December, in: Diário da República, II Série, n.º 15,
22.01.2007, pp. 1738 and ff.
(B) Case-law from administrative courts (available at http://www.dgsi.pt):
Ruling of the Supremo Tribunal Administrativo, of 09.01.2002, P. 48349.

Ruling of the Supremo Tribunal Administrativo, of 17.06.2003, P. 994/03.
Ruling of the Tribunal Central Administrativo do Sul, of 13.01.2005, P.
501/2004.
Ruling of the Tribunal Central Administrativo do Norte, of 26.10.2006, P.
589/06.0BECBR.
(A) Handbooks and articles
Alexandrino, José de Melo: «Direito das Autarquias Locais», in: Paulo Otero/
Pedro Gonçalves (org.), Tratado de Direito Administrativo Especial, vol.
IV, Almedina, Coimbra, 2010, pp. 11 and ff.
Amaral: Curso de Direito Administrativo, vol. I, 3.ª ed., Almedina, 2006 (pp.
479-674).
Andrade, José Carlos Vieira de: «Autonomia Regulamentar e Reserva de Lei»,
in: Estudos em Homenagem ao Prof. Doutor Afonso Rodrigues Queiró, Bo-
letim da Faculdade de Direito, Coimbra, 1984, pp. 1 and ff.
530
Folque, André: A Tutela Administrativa nas Relações entre o Estado e os Mu-

nicípios, Coimbra Editora, Coimbra, 2004.
Fonseca, Isabel Celeste: «Direito do Contencioso Administrativo Autárquico»,
in: Paulo Otero/Pedro Gonçalves (org.), Tratado de Direito Administrativo
Especial, vol. IV, Almedina, Coimbra, 2010, pp. 301 and ff.
Gonçalves, Pedro: O Novo Regime Jurídico da Tutela Administrativa sobre as
Autarquias Locais, CEFA, Coimbra, 1997.
Gonçalves, Pedro: Regime Jurídico das Empresas Municipais, Almedina,
Coimbra, 2007.
Gonçalves, Pedro: «A Autonomia Local (Alguns Aspectos Gerais)», in: Estu-
dos em Homenagem ao Prof. Doutor Afonso Rodrigues Queiró, vol. II, Bo-
letim da Faculdade de Direito (número especial), Coimbra, 1993, pp. 107
and ff.
Nabais, José Casalta: «O Regime das Finanças Locais em Portugal», in: Bo-
letim da Faculdade de Direito, vol. LXXX, 2004, pp. 15 and ff.
Nabais, José Casalta: «A Autonomia Financeira das Autarquias Locais», in:
Boletim da Faculdade de Direito, vol. LXXXII, 2006, pp. 15 and ff.
Neves, Maria José Castanheira: Governo e Administração Local, Coimbra Edi-
tora, Coimbra, 2004.
Oliveira, António Cândido de: Direito das Autarquias Locais, Coimbra Edito-
ra, Coimbra, 1993.
Oliveira, António Cândido de: A Democracia Local (Aspectos Jurídicos), Co-
imbra Editora, Coimbra, 2005.
Oliveira, António Cândido de (org.): Domínio Público Local, CEJUR, Braga,
2006.
(B) Periodicals
Direito Regional e Local, Publicação Trimestral, CEJUR (propriedade e re-

dacção), Coimbra Editora (distribuição), ISSN: 1646-8392.
Associação Nacional de Freguesias: http://www.anafre.pt

Associação Nacional de Municípios Portugueses: http://www.anmp.pt
Fundação para os Estudos e Formação Autárquica: http://www.cefa.pt
531
Inspecção-Geral da Administração Local: http://www.igal.pt

Instituto Nacional de Administração: http://www.ina.pt
Portal Autárquico: http://www.portalautarquico.pt
Portal do Ordenamento do Território e do Urbanismo: http://www.dgotdu.pt
Secretário de Estado da Administração Local: http://www.seal.gov.pt
532
Chapter 22:
LOCAL GOVERNMENT IN ROMANIA
Simina TANASESCU*
During the medieval period in Romania, and even today, the locus of local
self-government were the villages, which were grouped into associations that
constituted historic regions (counties). These, in turn, established various kinds
of relations and alliances among themselves and with neighbouring lands. Over
time, the term judeţ (county) substituted ţinut, and signified the administrative
coordination among local entities providing self-government. Traditionally and
historically, the village (obştea sătească) was the local self-government unit,
while judeţ designated a local entity between the State and the local self-gov-
ernment unit.1
The modern Romanian state was founded in the later half of the 19th cen-
tury and adopted the uniform structure of France’s institutional model for local
government. The village was replaced by an imported entity called the «com-
mune». The success of this «transplant» is still open to question. Although vil-
lages lost their legal significance as of 1912, a century later people still think in
terms of the local entity. Villages were the tool that allowed local self-govern-
ing, and they remain in the collective mind, even though legislation has trans-
ferred the role of villages to the newly created «commune» or municipality.
After the unification of Moldova and Wallachia in 1859, Alexandru Ioan
Cuza initiated the modernization of the newly created state, which included
administrative reform. Romania was inspired by the French and Belgian mod-
* The author would like to express her most sincere thanks to assistant professor Bogdan
Dima for all his invaluable help.
1
In the past, the word «region» denoted a geographical area, while the English term «coun-
ty» referred to a sub-national, supra-local administrative unit. Today, «region» is overwhelm-
ingly used to connote an administrative, socio-economic and political unit, regardless of the di-
versity among units in each state.
533
simina tanasescu
els of local administration and introduced rural and urban «comunes» (minici-
palities) as public legal persons, representing the first level of local govern-
ment. The law also declared that counties would represent the intermediate
(coordination) level. Villages were obliged to regroup into larger rural
«comunes» and pool the scant resources they had for economic survival. They
also created a local budget to project further development.
The administrative organisation recreated a unified and central system of
coordination that reflected European models and the existing tradition of cen-
tralism.2 «Comunes» and counties were not the expression of a pre-existing
local autonomy, and they provided adequate conditions for the uniform im-
plementation of legislation.3 Communal and county councils were to be elect-
ed at the local level, while the mayor and the prefect who were agents of
central government in the territory, would be appointed as presidents of these
councils.
The Second World War obliged Romania to adopt a collective effort and
centralism took the upper hand again. Local self-government was not a top
priority during the Communist regime, and it wasn’t until the events of De-
cember 1989, that decentralisation became part of the government’s agenda,
as a result of international political pressure (Council of Europe, European
Union).
Local government was divided into two tiers, and this has remained a con-
stant feature despite the (all too) frequent changes in Romania’s system of ad-
ministrative organisation. Driven by the priority to build a nation–state and a
functional and coherent institutional structure at that level, Romania initially
considered local self-government a secondary objective. Local authorities were
originally conceived as being complementary to the central decision-making
tier and enjoyed autonomy insofar as it did not undermine the general interests
of the nation. This helps to explain an existing tendency to tolerate possible
intervention by central government in local affairs.
Local self-government is not a firmly established feature of Romanian insti-
tutional culture, at least in comparison with other European countries. The
process of decentralisation which started soon after December 1989 can be con-
sidered a challenge stemming from Romania’s need to synchronise with evolu-
tions on a global level, but it is not clear that this would necessarily produce
fully fledged entities endowed with local autonomy. The doubt arises from
what appears to be a certain failure to incorporate the basic concepts and prin-
ciples of local self-government. This is evident in the many «borrowed con-
2
Indeed, according to historians, State organisation of Romanian historic provinces has al-
ways and uninterruptedly been unitary and centralised». See Filitti, Ioan C., «Despre vechea or-
ganizare administrativă a Principatelor Române», Revista de drept public III n°2 (1929):271-317.
3
Emil Cernea, «Dinamica legislaţiei privind descentralizarea administrativă», Revista de
drept public (serie nouă) XXVI, n°1(2000):26-32 .
534
local government in romania
cepts» and/or «transplants» from foreign institutions or legislation, blithely car-

ried out during more than a century by central governments (of all political
persuasions), which were more interested in perpetual «updating» at the insti-
tutional and/or legislative level rather than effectively implementing local self-
government. The end result is a perpetual on-going process of decentralisation,
which is also common to other countries in the Balkans. Although, in theory,
such a process should be aimed at building powerful local self-government in
Romania, in practice it seems to generate more flaws and problems than merits
and accomplishments.
The above discussion suggests that, in modern times, decentralisation be-
came politically relevant and technically possible, primarily during periods of
intensive state transformation that included political democratisation and eco-
nomic liberalisation. Whether this process can be considered a precondition or
catalyst to vigorous local self-government remains an open question.
Romania has two tiers of local government, called «administrative-territori-

al units». These forms of organisation constitute entities with full legal capaci-
ty, possess their own assets, and are subject to public law.
The intermediate administrative level consists of counties (judeţe). Today,
Romania has 41 counties plus the municipality of Bucharest (although this lo-
cal authority is a municipality, it is equivalent to a county in terms of its powers
and responsibilities). Authorities associated with this (intermediate) level in-
clude: the county council (consiliul judetean), the chairperson of the county
council (preşedinte) and the «prefect» (prefect).
In so far as they perform functions established by law, prefects constitute a
public administration body according to article123 of the Constitution. Accord-
ing to legal scholars, however, they represent the central Government and run
the decentralised public services, so this suggests that prefects are not part of
the local government system, but instead are in charge of monitoring local au-
thorities. On the other hand, Romanian legislation now appears to be moving
away from the thesis that the prefect represents local administration. Amend-
ments to Law no.215/2001 on Local Government have removed this figure
from its legal framework and have added it to Law no.340/2004 regarding the
institution of the prefect. It should also be noted that the prefect is funded from
the state budget, the budget of the Ministry of Administration and Interior and
other sources specified by the statute.
The basic local administrative level is comprised of 2,858 municipalities or
comunes and 320 towns (oraşe), including 103 municipalities (municipii); the
most important towns are designated «municipalities». The «Comune» include
one or more entities (with no specific legal meaning) called «villages» (sate). A
535
simina tanasescu
total of 12,951 of these entities existed in 2008.4 Authorities established at the

local level are the local council (consiliul local) and the mayor (primarul).
According to article 20, paragraph 4 of Law no.215/2001, municipalities
can be divided into «boroughs». To date, according to article 78 of Law
no.215/2001 and Decree no.284/1979 on the establishment of boroughs (sec-
tor) in the municipality of Bucharest, only the capital city of Romania is di-
vided into 6 boroughs.
Romania signed the European Charter on Local Self-Government (ECLSG)

on 4 October 1994, ratified by Law no.199/1997 (Monitorul Oficial al României
no.331/26.11.1997), effective upon publication. Following ratification, Roma-
nia issued a reservation and an interpretative declaration. The reservation con-
cerns article 7, paragraph 2 of the Council of Europe’s Charter, which will not
be enforced in Romania. The interpretative declaration refers to article 4, para-
graph 4 and paragraph 5 of the Charter, and concerns the concept of «region».
Since Romania has only one level of intermediary administration, counties are
considered regions. Thus, according to Romanian legislation, comunes, towns
and municipalities come under the provisions of the ECLSG, whereas counties
are to be dealt with as «regions».
According to article11 of the Romanian Constitution, international treaties
become «the law of the land» once they are ratified. From this perspective, Law
no.199/1997 contains two articles, the first of which refers to the ratification
with the reservation, and the second mentions the interpretive declaration. This
legal text is followed by the Romanian version of the ECLSG, which acquires
the legal force of its ratifying document. The inclusion of the Charter in the
Romanian legal system is formal, automatic and explicit, but this does not mean
that it will be directly applicable, although it is legally binding.
This situation can be better understood in articles 11, 20 and 148 of the Ro-
manian Constitution, in conjunction with Law no.590/2003 on the conclusion
and ratification of treaties. These legal provisions address the topic of incorpo-
rating international public law in Romanian law according to a dualistic sys-
tem, whereby international documents may be applicable at a national level, but
do not necessarily have direct effect. Only EU provisions and the international
protection of fundamental rights may take precedence over internal legislation
(the second according to the principle of lex mitior). The obligations imposed
by the Charter are reflected in Romanian law as a source of inspiration for rel-
evant domestic legislation. Provisions contrary to Romanian law cannot be im-
posed. Presently, many national provisions simply copy the articles of the
4
According to the Romanian National Institute of Statistics (www.insee.ro).
536
Charter even though they were already incorporated in national legislation

when the charter was ratified.5 Recent revisions of statutes on local public ad-
ministration were written to provide better compatibility with the principles
enumerated in the ECLSG, by simply restating its provisions. Thus, the Charter
is neither directly applicable nor applied, but domestic legislation is continu-
ously adapting to its requirements.
Furthermore, according to article 73 of the Romanian Constitution that dis-
tinguishes between «organic» and «ordinary» Acts, the Charter is considered
an «organic act», a specific type of statutes. Indeed, the ratification text has
been adopted according to the procedure for the «organic acts». Theoretically,
it is generally accepted that «organic acts» take precedence over ordinary ones,
but in practice, there is no mechanism of control to ensure this compliance,
which may explain why, in practice, there is a certain degree of «flexibility» in
dealing with these statutes.
The Act regulating the territorial and administrative organisation of Roma-
nia was adopted in 1968. It is a relatively short piece of legislation, with only
10 articles, and describes the coordination and basic administrative units, and
enumerates the 41 counties and 45 municipalities Romania had at the time (the
annexes contain lists of cities and communes). This Act was revised many
times over the last 40 years, (whenever a «Comune» was transformed into a city
or a city was designated a municipality) but it was never repealed, so it remains
a brilliant example of legal simplicity. In fact, it does not regulate all aspects of
local government. It refers only to the administrative coordination of the terri-
tory of the State, and does not refer to local self-government, although it pro-
vides definitions and enumerations.
Quite apart from all this, article 120 of the Constitution declares «decen-
tralisation» as one of the basic principles of local public administration, and
refers to «local autonomy of comunes and towns» in article 121. Also, article
122 defines the role of the county as coordinator. Scholarly comments regard-
ing these provisions state that, «a certain degree of state power centralisation
will always exist, because administrative decentralisation is not the opposite of
centralisation, but just a decrease of the concentration of state’s powers»6; de-
centralisation «is only a process aiming at the achievement of local self-
government»7 and therefore it should eventually get to an end once all precon-
ditions and requirements are in place. Surprisingly, the Constitution’s provision
5
Significantly, although paragraphs 4 and 5 of article 4 of the Charter are the object of an
interpretative clause, article 4 paragraph 6 of the Charter is reproduced in article 8 paragraph 1 of
Law no.215/2001 on local public administration and in Government Decision no.521/2005 re-
garding the procedure for consulting the associations of local authorities on the drafting of legal
instruments.
6
Dana Tofan, Drept administrativ, vol. I, ediţia 2, All Beck, Bucureşti, 2009, p. 254.
7
Ştefan Deaconu, «Bună guvernare şi descentralizare», Revista de drept public (serie nouă)
XXXI, n°3(2003): 21-26.
537
simina tanasescu
regarding local self-government does not seem to have captured much attention,8
unlike decentralisation which has been the object of dedicated and detailed
analysis.9
The general legal framework for decentralisation and local self-government
is provided in a set of laws that have changed significantly over the past dec-
ade.10 The two most important ones are the laws concerning local public admin-
istration and local public finance.
The 1991 Local Government Act was substantially improved by a 2001 stat-
ute, which was revised in 2006 and modified and completed in 2008. All of this
legislation has brought about real progress in terms of local self-government.
8
Local self-government is a subjective right, while administrative decentralisation is a sys-
tem implied by local self-government». Dana Tofan, op.cit., p.255. In fact, the author refers and
also assumes a definition of local self-government, which had been established by scholars be-
tween the two World Wars. See Anibal Teodorescu, Tratat de drept administrativ, vol. I, ediţia a
II-a, Institutul de Arte Grafice Eminescu S.A., Bucureşti, 1929, p. 286. Also see Eugen Popa,
Autonomia locală în România, Ed. All Beck, Bucureşti, 1999.
9
Dana Apostol, «Probleme actuale ale descentralizării administrative (I)», Studii de drept
românesc n°3-4 (1991):141-148; Dana Apostol, «Probleme actuale ale descentralizării adminis-
trative (II)», Studii de drept românesc n°2 (1993):103-113; Mircea Preda, «Centralizare şi descen-
tralizare în administraţia publică», Dreptul n°9(1995):42-54; Virginia Vedinaş, «Centralizare,
descentralizare, federalism», Analele Universităţii din Bucureşti, seria Drept (1997):21-38; Emil
Cernea, «Dinamica legislaţiei privind descentralizarea administrativă», Revista de drept public
(serie nouă) XXVI, n°1(2000) :26-32; Constantin Argentoianu, «Descentralizare administrativă şi
regionalism», Revista de drept public (serie nouă) XXVII, n°2(2001): 97-109; Stefan Deaconu,
op.cit., p.21-26; Rodica Narcisa Petrescu, «Consideraţii asupra noii legi-cadru privind descetrali-
zarea», Revista de drept public (serie nouă) XXXI n°1(2005): 35-45; Radu Carp, «Strategii şi
propuneri de reformă a administraţiei publice în perspectiva integrării europene», Revista de drept
public (serie nouă) XXXII n°2(2006): 102-115, etc. This list should include the translation into
Romanian, as early as 1991, of Xavier Frégé, Descentralizarea, Humanitas, 1991, Bucuresti.
10
The most important ones are: Constitution of Romania of 8 December 1991, as subse-
quently revised in 2003; Act no.215/2001 on local public administration (Monitorul Oficial al
României no.204/23.04.2001), subsequently amended; Framework Act no.195/2006 on decen-
tralisation (Monitorul Oficial al României no.453/25.05.2006), as subsequently amended; Act
no.315/2004 on regional development in Romania (Monitorul Oficial al României
no.577/29.06.2004), as subsequently amended; Act no.273/2006 on local public finances (Moni-
torul Oficial al României no.618/18.07.2006), as subsequently amended; Government Order
no.36/2002 on local taxes and charges (Monitorul Oficial al României no.92/2.02.2002), as sub-
sequently amended; Act no.67/2004 local elections (consolidated version published in the Moni-
torul Oficial al României no.271/29.03.2004), as amended; Act no.393/2004 on the conditions of
office of locally elected representatives (Monitorul Oficial al României no.912/7.10.2004), as
subsequently amended; Act no.340/2004 on the institution of the prefect, consolidated version
published in the Monitorul Oficial al României no.225/24.03.2008 as subsequently amended; Act
no.2/1968 on the administrative organisation of the territory of the Socialist Republic of Romania
(consolidated version Buletinul Oficial no.54-55/27.07.1981), as subsequently amended; Decree
no.284/1979 on the establishment of districts (sectoare) in the municipality of Bucharest (Bu-
letinul Oficial no.69/1.08.1979); Act no.350/2001 on town and country planning (Monitorul Ofi-
cial al României no.373/10.07.2001), as subsequently amended; Act no.188/1999 on the civil
service conditions of service (Monitorul Oficial al României no.600/8.12.1999), as subsequently
amended.
538
Inspired by the ECLSG, the Act now includes the principles of subsidiarity and
proportionality among the responsibilities of local authorities and the means
available to them, among other issues. It should be noted that local councils ex-
ercise local self-government in keeping with the subsidiarity principle and are
free to decide the tasks to be performed to meet the needs of local communities.
The list of their own attributions is quite long, and delegated attributions may
always be added in the process of decentralisation (see point 4, below).
Another important piece of legislation, the Local Public Finance Act, passed
in 1998, was later replaced by an improved version (from the point of view of
local self-government) in 2003 (see point 7, below).
The above legislative framework is supplemented by other rules. First, a
range of other sector-specific measures, which, all too often, provide further
transfers of responsibilities or expenditure (public services) from the central to
the local level. Some of these transfers are merely tasks assigned by central
government to local government along with the resources (financial) necessary
to execute them, without the local authorities having any real decision-making
powers (e.g. police, emergency services, and education and social protection).
Other important legislation is the Annual Budgetary Legislation, which lays
down the total sum of funds transferred from the central government budget to
local budgets in the form of equalisation or «conditional grants».
Lastly, article 14 of the Romanian Constitution provides that «The Capital of
Romania is the Municipality of Bucharest». Law no.2/1968, Decree no.284/1979
on the establishment of boroughs (sector) in the municipality of Bucharest and
Chapter V of Law no.215/2001 on local government, provide for special organisa-
tion of the municipality of Bucharest, which still lacks a comprehensive, specific
regulation. The capital is organized into six territorial administrative sub-entities
(boroughs), each of which has a local council and a directly elected mayor. The
administrative organisation of Bucharest can be modified only by law.
Although this general legal framework allows local public administration to
create sub-entities in any municipality, in practice, this only happened in the
capital city. The wording of the Act on the status of boroughs is vague and in-
complete and does not state whether they have legal personality. In our view,
boroughs have the right to local self-government just like any other administra-
tive-territorial unit. This idea would avoid confusion and establish the bounda-
ries for interpretation. This is all the more necessary, because the Romanian
Constitutional Court has already handed down two decisions11 concerning the
status of the capital and its boroughs, following actions brought by the general
council of the municipality of Bucharest.
11
��
Decision no.319/2010 and Decision no.843/2009 on pleas of unconstitutionality concern-
ing certain provisions of Law no.273/2006 on local public finances and Law no.215/2001 on lo-
cal public administration.
539
simina tanasescu

AUTHORITIES
As already mentioned, local government in Romania is structured according

to two layers of public authorities. The intermediate level of public administra-
tion consists of counties in which the responsibility of managing local interests
of a certain scale is taken by deliberative bodies (county council) and executive
authorities (chairperson of the county council) (see point 5, below).
The «prefect» (prefect) is appointed by the central government and reviews
the legality of acts adopted by local authorities and county councils, including
by its chairperson. Prefects are also responsible for ensuring the implementa-
tion of the government’s strategy and programmes at local and county levels,
and represent the State in each county council and in the council of the munici-
pality of Bucharest. The legal nature and actual role of the prefect within local
public administration still requires definition (as mentioned above), although
its supervising and monitoring role remain unchanged.
Democracy at the strictly «local» level is also based on a representative elec-
toral system, with the notable exception of mayors, who are directly elected accord-
ing to a two- round, uninominal and majority electoral system (see point 5, below).
County and local councils have the power to issue decisions (hotărâri) that
must comply with the laws of the land and governmental decrees. The decisions
must refer specifically to the pertinent local community (and territory) and fall
under the legal regime of all administrative acts, i.e. they can be challenged
before the administrative sections of ordinary courts upon referral from citizens
or the prefect.
In theory, there should be a clear distinction between the nature of powers
that local councils enjoy and those of county councils. However, article 3 para-
graph 2 of Law no.215/2001, recently revised, confusingly stipulates that «lo-
cal self-government is a right exercised through local councils and mayors as
well as through county councils in their capacity as directly elected local public
authorities». Article 122 of the Constitution, however, declares the county
council a mere «coordination entity of local councils of «comunes» and towns
in order to accomplish public services of county interest». Thus, only the coun-
ty council should have its powers limited by the law, while local councils
should enjoy full decisional autonomy on the basis of the principle of subsidi-
arity. It should also be noted that the Constitution does not qualify county coun-
cils as «autonomous administrative authorities», and this seems to be in line
with the interpretative declaration made by Romania upon ratification of the
Charter on local self-government.12
12
A contrario to this position, in a decision as recent as 2008, the Constitutional Court of
Romania ruled that « local autonomy cannot be reduced, as argued in the present case, only to the
level of comunes and towns ». (see Decision no.822/2008).
540
Irrespective of this normative background, the reality is that Romania’s local

self-government is conceived as being complementary to the central decision-
making tier, so it is autonomous as long as it does not undermine the general inter-
ests of the national community. Local autonomy is not yet understood as a full
fledged fundamental right of the local community. Consequently, the powers of
local and county councils are determined by national legislation and are not de-
fined in accordance with the principle of subsidiarity, although this is solidly root-
ed in the relevant legal framework. The rulemaking capacity of local and county
councils can expand to the extent that it risks confrontation with the powers of
state authorities. For instance, article 2 paragraph 2 of Government Ordinance
no.2/2001 on the legal regime of contraventions (Monitorul Oficial al României
no.410/25.07.2001) allows the possibility of local and county councils to regulate
and sanction contraventions in all areas of activity providing their powers have
been established by law, and they do not interfere with the legal acts of higher
ranking governing bodies. For instance, article 44 paragraph 5 of the Constitution
allows authorities to use the subsoil of any real estate within their jurisdiction for
works to be executed in the interest of the general public; or article 7 paragraph 1
of Law no.33/1994 (Monitorul Oficial al României no. 139/2.07.1994) on expro-
priation, gives power to all county and local councils to expropriate private prop-
erty in the public interest and in accordance with due process of law.
Article 38 of Law no.215/2001 allows local councils «to decide, within the
framework prescribed by law, on all matters of local interest, except in cases in
which the law has delegated such matters to other local or central authority».
Following this clear expression of the principle of subsidiarity, the law identi-
fies five main areas where local councils are vested with full decision-making
autonomy: economic and social development of the local community, public
and private domain of the community management of public services offered to
citizens, the mayor’s staff, and inter-institutional cooperation. Article 104 of
that statute describes the actions attributed to the county councils, including the
organisation and functioning of the county council staff, the economic and so-
cial development of the county, the management of the county’s public patri-
mony, the management of public services under its authority, and inter-institu-
tional cooperation and others.
The main responsibilities of local authorities include housing and town
planning; environmental protection and waste management; local transport in-
frastructure; water and electricity supply; public health; education (except for
universities); the management of cultural heritage; public order and some emer-
gency services; the management of parks, public gardens and other green spac-
es, etc. There are only a few differences between the local councils’ attributions
(article 38 paragraph 6 of Law no.215/2001) and those of the county councils
(article 104 paragraph 5 of Law n°215/2001): emergency services, social resi-
dences, valorisation of natural, local resources and some social services are
only within the remit of local autonomy. In terms of any other activities county
councils must exercise their powers in consonance with those of local councils.
541
simina tanasescu
Moreover, according to article 87 of Law no.215/2001 local councils «may

create and organise institutions and public services of local interest in the main
areas of their competence, according to local needs and specificities, with due
respect of legal provisions and within the limits of the financial means available
to them». Also, article 15 of the same law states that local and county councils
can decide «upon their participation in the creation, functioning and develop-
ment of the public services of a public utility in the best interest of the local
communities they represent and within the conditions set forth by the law».
Reality has proved that the powers of local authorities can vary over time,
and this depends on the political commitment for decentralisation and the effec-
tive protection of self-government. For example, central government has al-
ready stepped in to define the content of what will probably be a long decen-
tralisation process, so Romania could face some flexibility or even some
reversibility of the entire process, particularly since main stakeholders are not
equally involved in the determination of the course of the process. It was only
recently (2004-2005) that local authorities were consulted and actually co-opt-
ed into a decision-making process that concerned them directly from the outset.
This change «from an objective to a subjective» view of local authorities was
facilitated by the establishment and institutionalisation of local authority asso-
ciations.13 Change has also been supported by the economic boom experienced
by Romania during that period.
5.1. The Councils
The county council (consiliul judetean) is made up of members elected for

a term of four years, by secret ballot and by universal, equal and direct voting.
The number of members can vary from 30 to 36 according to the county popu-
lation. The main powers of the county councils focus on the socio-economic
development of the county and the organisation of contingent public services as
mentioned above.
The local council (consiliul local) is the deliberative authority at the local
level and its members are elected for a four-year term by universal, equal, di-
13
It is not entirely irrelevant to mention that there are four associations of local authorities in
Romania, although there are only two tiers of administration and three types of localities. Asso-
ciations lobby the central government, and their formal requests, backed up by pressure from
international forums, have speeded up the «democratisation» of the decentralisation process.
Even though the consultation process has become compulsory according to several legislative
measures at a central level (such as article 8 of Law no.215/2001 and article 3 of Government
Decision no.521/2005) this does not seem to cover the core practical problems nor does it pro-
duce the results expected by the two sides: In practice, the principle appears to have been ac-
cepted.
542
rect, secret and freely expressed suffrage. Even in small «comunes», the mem-
bers are elected by proportional representation, which normally results in coali-
tion majorities made up of several lists or parties. The number of members may
vary from 9 to 31 according to the population of the administrative unit. The
Constitution and relevant legislation state that self-government must be exer-
cised at this level, but despite this, the main attributions of local council differ
little from those of county councils. Financial resources needed to support these
attributions, however, are harder to come by at the local level than at county
level.
5.2. Presidents and mayors
The chairperson or «president» (preşedinte) of the county council is directly

elected by county citizens for a term of four years. Breaking with a tradition
that existed even before 1989, the chairperson of the county council is directly
elected by citizens in a two-round majority system, while the two deputy chair-
persons are designated from among county council members. The chairperson
may delegate certain responsibilities to the two deputy chairs. The chairperson
formally represents the council in its relations with all other legal entities. The
council’s main tasks include organizing public services and institutions of
county interest, fomenting relations with the county council, connecting with
other local authorities, and attending to any other business attributed by law.
The mayor (primar) is elected by the local community in single-member
constituencies on the basis of a two-round majority system. The mayor’s term
of office is four years. In Bucharest, a «General Mayor» (primarul general) is
elected in addition to the borough mayors. «Comunes», towns, municipalities
and boroughs of the Bucharest municipality each have a mayor and deputy
mayor, whereas the municipalities and administrative centres of the counties
have a mayor and two deputy mayors. The mayor is the local public administra-
tion authority and acts as the executive authority according to the conditions of
office of the elected local representatives.14 According to law, the mayor’s du-
ties include: representing the State; working with the local council; drawing up
local budget; providing public services for citizens; any other tasks established
by law.
The mayor’s term of office automatically terminates in the following cases:
resignation; inability to hold office; change of domicile to another administra-
tive-territorial unit; sentenced by a final court judgment to a term of imprison-
ment; placement under court supervision; loss of electoral rights or loss of
membership to a political party through resignation, or loss of membership to a
national minority organization for which he/she has been elected by list vote;
14
Law no. 393/2004 regarding the conditions of office for local elected representatives.
543
simina tanasescu
death; and the impossibility of exercising the office due to a serious, certified
illness that impedes the proper execution of duties for a period of six months of
a calendar year. The mayor’s term of office may also be terminated after a local
referendum to bring about his/her dismissal. The prefect is notified of the ces-
sation of the mayor’s term of office by an order, against which the mayor can
appeal to the administrative tribunal within 10 days of the notification. The
mayor’s term of office is automatically suspended if he/she is placed in preven-
tive detention, and this may be appealed before the administrative court.
5.3. Associations
In the mid-1990’s, four established associations merged in a single federa-

tion of associations of local authorities. The Associations of «comunes» is the
largest in terms of membership, the Association of Municipalities is smaller
than the Association of Towns but has a greater impact as a pressure group.
These three associations of local entities regrouped to form the Federation of
Associations of Local Authorities. Initially, an association of counties of Ro-
mania was also member of this federation, but now it belongs to the National
Union of County Councils, which is a separate entity, similar to other profes-
sional associations that are associated with local administration, such as the
Federation of Associations of General Secretaries of Local Authorities or the
Association of County Chief Architects.
Moreover, since the law regarding local public administration allows local au-
thorities to associate through intercommunity development entities, a few hundred
of these were created from administrative units that take initiatives and a leader-
ship role, particularly in financial matters. From a practical viewpoint, associations
of two or more local authorities are now able to pool available resources and share
the burden of some of the common services. In most cases, it is the administrative
unit of the association that will take this initiative, because it has the organiza-
tional know-how to sort out the functional aspects of these issues and often led by
the mayor or the secretary who has special knowledge of the topic.
According to article 14 of Law no.215/2001 on local government, local au-
thorities may also sign agreements or participate, with funds, in implementing
local or regional development programmes, but this must first be authorized by
decree adopted by the local or county councils. They can also participate in
cross-border cooperation under the same circumstances.
6. HUMAN RESOURCES
The staffs of public authorities are divided in two categories according to

their respective status: civil servants (see Law no.188/1999 on the statute of
civil servants) and contractual employees (see Law no.53/2003 - Labour Code).
544
Law no.188/1999 does not differentiate between civil servants of local or

central public authorities; it offers a general legal framework for the entire civ-
il service with regard to selection, recruitment and career management (train-
ing, promotion, transfer and redistribution, cessation, etc.). Recruitment of
civil servants is based on public/open competition (exam or contest), and va-
cant positions can be filled following in-house competition (article 51 of Law
no.188/1999). Career management is supposed to be transparent and sanctions
are enforced according to standard procedures. Civil servants enjoy job stabil-
ity and a special remuneration and pension regime. The National Agency of
Civil Servants (NACS) National Agency of Civil Servants (NACS)is responsi-
ble for the correct implementation and monitoring of this piece of legislation
through the use of a database of all civil servants (both at local and central
level). In all procedures pertaining to the selection and/or recruitment and ca-
reer management of a civil servant, a representative of the NACS must either
participate in the procedure, or, if this is impossible, express a favourable opin-
ion in advance.
Much criticism is levelled against this uniform legal regime and centralised
monitoring, and claims that it does not respect local autonomy. In fact, recruit-
ment of civil servants at the local level is decentralised in the sense that uniform
procedures of selection must be followed for all recruitments locally operated, in
accordance with local needs and available budgets. Career management of civil
servants in local authorities is handled at local level, with only routine reporting
to the competent national agency. Sanctions tend to follow the same pattern.
Curiously, management positions are the object of scrutiny by the National
Agency of Civil Servants, but executive levels tend to go largely un-noticed.
The key positions governed by these legal provisions are those of secretary
(of local councils) or general secretary (of county councils). Secretaries and
general secretaries are management civil servants, who are obligated to partici-
pate in the council meetings of their respective locality, coordinate legal activi-
ties of the local staff, issue legal opinions on all normative acts of the local
council and ensure their publicity. They are also obligated to remain at the dis-
posal of local authorities. The highest percentage of local authority staff mem-
bers belong to this category.
The rest of the staff is governed by the Labour Code, irrespective of their
position or function. Rules regarding open competition in the labour market
apply in terms of selection and recruitment, while career management is left to
local authorities. Contractual employees fulfil positions which do not directly
relate to the exercise of public authority (information and secretariat, mainte-
nance of infrastructure, IT, etc.).
A specific position called the «public (city) manager» was introduced in
2006 with the revision of Law no.215/2001, and many consider it an «institu-
tional transplant» in the Romanian legal background. Its main objective is to
introduce principles of economic management at the local level through effec-
545
simina tanasescu
tive execution and monitoring of local public services. Provided by law as a

mere option for any mayor, the position of public manager depends on the
availability of funds and the budget of local authorities. The public manager
signs a «contract of management» with the mayor (not with the local council)
for a given period of time, during which he/she must achieve the objectives and
indicators specified in the contract.
County councils (article 36 paragraph 3 letter b) of Law no.215/2001) can
decide on the organisational configuration of their service and staff, and those
of public services and institutions that they coordinate, while only the general
secretary has the power to employ staff. Mutatis mutandis also applies to the
local council, while mayors (article 63, paragraph 5 of the same law) appoint
and dismiss employees.
Financial resources of local authorities are guaranteed by article 27 of Law

no.215/2001, article 5 of Law no.273/2006, regarding income and expenditure
of the local budget, and article 16, paragraph 2 of the same law, according to
which «local public authorities have the power to determine the level of taxes
and local charges in accordance with the law». These principles were recently
supplemented by article 27 of the law on the «powers and responsibilities with
regard to the determination of taxes and tax rates».
A 1993 statute on local taxes introduced the concept of personal income tax,
which was controlled and collected by local authorities, making property taxes
the main source of revenue for local administration in Romania. The 1998 Law
on local public finance built upon this acquis, and following its revision in
2003, placed local and central budgetary processes on the same footing. It also
introduced the principle of «sharing» taxes, which enabled local councils to
receive a portion of the duties and taxes they collected. In addition, the transfers
between the central budget and local budgets eliminated (national) grants for
local public services. Block grants have been replaced by equalisation grants,
which are allocated to county councils for redistribution to local councils with-
in their territories. For instance, Chapter V of Law no.215/2001, on «the financ-
ing of local administrative authorities», allows administrative-territorial units
to receive amounts for specific purposes deducted from certain state income, to
guarantee the vertical and horizontal balance of local budgets. Arrangements
and criteria for the allocation of shares and the amounts to balance local budg-
ets are determined by the law on local public finances. The size of the amounts
needed to balance local budgets is determined by the annual law on public
budget. The national budget law also indicates the sums that county councils’
may have at their disposal.
The purpose of this body of legislation was to consolidate local self-govern-
ment through increased local control over the budgetary process. However, the
546
(all too) frequent changes (sometimes annual) in the rules concerning the shar-
ing of revenues between central and local government and the introduction and
subsequent cession of certain budgetary transfers from a central to a local level
(classic examples such as the heating grants for the population during particu-
larly hard winters, and road building and maintenance grants) have contributed
to a certain lack of clarity.
At the same time, some special funds for investments have been retained or
even established, but are managed at the central level, because they are largely
supplementary funds for investments. Quite often, funds that should go to local
government actually remain in the national budget and are allocated to various
line ministries. To mention an example, Parliament voted to amend the tax code
in January 2008, and alter the use of sums generated from duties and taxes on
property transactions, and this had an indirect but serious impact on local self-
government. While in 2007, the revenues from these duties and taxes were
shared out on the basis of 40% to local budgets, 50% to the consolidated na-
tional budget and 10% to land/property registries, in 2008, the whole amount
went to the national budget. In this context, article 9, paragraph 2, of Law
no.215/2001 provides that the financial resources at the disposal of local public
authorities should be commensurate with their powers and responsibilities.
The local budgetary process is an endless source of «skirmishes», because
its design causes major difficulties for local authorities. Specifically, local au-
thorities cannot adopt their annual budgets before the national budget is passed,
and sometimes not even before the start of the relevant fiscal year (beginning of
January), because they must first know the rules established in the national
budget before they can establish their own. Annual changes in general budget-
ary rules are still common practice.
Despite the efforts of national authorities to incorporate the principles of
the European Charter into legislation, the method of sharing resources be-
tween the central level and the regulated local level is criticised in terms of its
clarity and transparency. Inappropriate interventions by the central level in the
budgetary decision-making process or various attempts at political influence
at the local level are possible. As regards taxation, for example, most of these
powers remain the prerogative of the «centre». The delays in transferring
funds tend to impede territorial democratisation, and at an «intermediate» lev-
el, the county plays almost the same centralising role played by the state at the
highest level.
In practice, the county council remains strongly politicised, particularly re-
garding the budget, and the distribution of resources. The county council re-
ceives the county budget from the «centre» and shares it among the «comunes».
The criteria are fairly clear but the allocated budgets don’t always comply with
them.
On the other hand, local authorities continue to complain about the lack of
real self-government insofar as the allocation of responsibilities to local au-
547
simina tanasescu
thorities is not accompanied by the necessary allocation of resources. Central

government still exercises a significant degree of oversight regarding local re-
sponsibilities and activities and also maintains many forms of leverage. Moreo-
ver, there is evidence of (mutual) fears related to the decentralisation process as
it has been implemented to date. Thus, central government balks at local au-
thorities tendency towards ever greater local self-government, while the local
level, at times, seems to give the impression of not making the most of the self-
government it already enjoys.
A recent legislative evolution should be mentioned here. Under Govern-
ment Emergency Order no.51/2010, local councils can request loans from the
state, to pay their debts to economic operators, at an annual interest rate of
6.25% for a period of five years with interest payments not beginning until the
second year. To benefit from these loans, the Public Finance Ministry’s Com-
mission for the Authorisation of Local Authority Loans must first grant the lo-
cal authorities permission. According to the new provisions of Law no.273/2006
on local public finances, failure to comply with the obligation to request the
consent of the Ministry of Public Finance will make the representatives of local
authorities criminally liable and punishable with 3-10 year prison terms, and in
the case of serious consequences, 5-15 years of imprisonment plus the suppres-
sion of certain rights. Moreover, if the representatives of local public authori-
ties do not comply with the obligation to send the Ministry of Public Finance
the required information on loans raised and the local public debt, they will
incur a monetary penalty of 10,000 to 30,000 lei (approximately €2300 to
€7000).
Until 1998, there were no regulations on local and/or national ownership.

Following the adoption of Law no.213/1998 on public property and its legal
regime (Monitorul Oficial al României no. 448/24.11.1998) local authorities in
Romania may own public and private property.
Law no.213/1998 stipulates that public property belongs to the state or local
administrative units, and its legal regime is regulated by public law. Apart from
the rights granted to any property, local and/or national ownership is subject to
a range of special obligations regarding the right of disposition. Assets gener-
ated from public property cannot be disposed of according to common rules
(Civil code), because they must first be «declassified» and transformed into
«regular» or private property. This statute contains three annexes that list the
kinds of assets that are public property of the State, but can belong to local au-
thorities. Annex 2 refers to items of public property belonging to the public
domain of county councils (e.g. county roads, land and buildings where the
county council performs its activities, water supplies, etc.), and Annex 3 refers
to other items that are part of the public domain of «comunes», towns and mu-
548
nicipalities (e.g. communal roads and town streets, social houses, public mar-
kets, lakes and beaches that are not declared to be of national or county interest,
local statues and monuments, etc.).
State and local authorities can also own assets having the legal nature of
«private» property, which is governed by common civil law. The private do-
main of local authorities is defined in article 4 of Law no.213/1998 and consists
of assets belonging to the local administrative units which are not public prop-
erty assets.
Although article 12, paragraph 4 of the Romanian Constitution does not

expressly state that administrative monitoring and supervision of local authori-
ties is executed by the prefect, a combined reading of the provisions of the laws
on local public administration and the prefect demonstrates that this is true. In
the exercise of their functions, local councils and county councils issue deci-
sions that are submitted to the prefect for a review of their legality. In the event
the council refuses to set aside decisions considered illegal by the prefect, the
latter can bring the matter before the administrative courts. Although there are
some cases of abuses by prefects in their regulation and supervision of admin-
istration, generally, their decisions seem appropriate and proportionate.
The prefects’ tasks are established by government decision, and their pur-
pose is to monitor and ensure compliance with the Constitution, and other laws
and legal instruments, in the counties and in Bucharest. They oversee the im-
plementation of inter-ministerial measures to improve the quality of public
services. Prefects also foster cooperation with local authorities to identify pri-
orities for local development; check the legality of administrative acts issued by
county councils, local councils or mayors; and supervise the use of public funds
allocated to decentralise public services, etc. At the request of the General Sec-
retariat of the Government or, as the Prime Minister’s office, the prefect will
represent the Government before the courts. There is no subordination in the
relationship between prefects and local councils or mayors, and in their deal-
ings with county councils and chairpersons. Any of these local government
entities may, however, challenge a prefect’s actions or decisions before the
administrative courts if they consider it illegal. The act is suspended ex officio
while the case is pending final decision,
Prefects issue individual or regulatory orders that become enforceable once
they are communicated or publicised. Local regulations must be communicated
to the superior institution, which can propose that the government annul the
rule if it is considered unlawful or unfounded. As local government representa-
tives, prefects also act as liaisons between ministries in the territory. The head
of the central public administration is accountable to the Government, while the
head of the decentralised public service is subordinate to the respective prefect.
549
simina tanasescu
Ministers and heads of other central public administrations can delegate man-
agement and supervisory powers to prefects.
Mayors issue regulatory or individual orders and make unilateral adminis-
trative decisions. The secretary of the administrative-territorial unit communi-
cates these acts to the prefect within five days of their signature, thus allowing
the prefect to review their legality. If the prefect considers the act or measure
partially or entirely illegal, s/he can request that it be revised or revoked. If the
request is refused, the prefect can bring the matter before the administrative
tribunals and ask that the decision be set aside.
Law no.554/2004, on administrative litigation, also permits the following le-
gal entities to submit a complaint regarding the legality of an administrative act
issued by local authorities: the National Agency of Civil Servants (when rights
and interests of civil servants are at stake) and the Public Ministry or national
Ombudsman. These entities can initially ask that the illegality be corrected im-
mediately, or suspended while pending modification. In general, most plaintiffs
request suspension of the act, but the administrative court decision to do this is
discretionary. Regardless of the request, no legal act issued by a local authority is
suspended or withdrawn from enforcement without due process of law.
The Romanian constitutional and legislative framework does not clearly ad-
dress the issue of the «fundamental right» to local autonomy. On the one hand,
article 3 of the Local Government Act expressly provides that local self-gov-
ernment is «a right exercised by the local councils and mayors and by the coun-
ty councils», while on the other hand, article 9 states that «the «comunes, towns
and counties are entitled to their own financial resources». Furthermore, article
20 of the same legal rule states that «comunes, towns, municipalities and coun-
ties are administrative-territorial units in which local self-government is exer-
cised and the local public authorities are organised and operate». Finally, article
1(i) provides that «the administrative-territorial units are the comunes, towns
and counties; under certain conditions specified by law, towns are designated
municipalities». The legislator should clarify the legal regime of self-govern-
ment, particularly since the Constitution seems to be clear that its locus is at the
level of local councils.
Moreover, the principle of local autonomy is formally recognised in articles
120 and 121 of the Romanian Constitution. The chapter dealing with «Public
Administration» is dedicated to «Local public administration». Local self-gov-
ernment is referred to as a core constitutional principle, but the Constitution
does not stipulate its content or guarantees. These are established by «organic
Acts», as pointed supra. However, the practical distinction between «organic»
and «ordinary» acts is often unclear and creates situations in which «organic»
550
acts are revised through «ordinary» acts and vice versa. The fact that «organic»
acts address the content and guarantees granted to local self-government, does
not necessarily ensure that it will be stable or assigned an important status.
On the other hand, Romanian legislation does not grant local authorities the
right to lodge a legal remedy to secure the free exercise of their right to auton-
omy, because self-government in Romania is not conceived as a fundamental
right. Local authorities, however, can take legal actions before ordinary courts
to demand compliance with the provisions of the Constitution and/or domestic
legislation that affect them directly. Similarly, local public authorities may de-
fend their right to self-government through remedies involving their composi-
tion and internal organisation, although these remedies cannot be regarded as
effective legal protection for self-government within the meaning of the
ECLSG. Also, not all local authorities are entitled to a direct appeal before the
Constitutional Court, although there are several decisions in which the Consti-
tutional Court has ruled in favour of local authorities. The truth is that the Con-
stitutional Court has very rarely been asked to rule on issues pertaining to local
self-government (see, point 12.1, below).
The Romanian 30-member delegation to the Committee of the Regions of

the European Union is composed of presidents of county councils and mayors,
who are serving a term of office in their communities. The members of the
Romanian delegation were nominated by the Romanian Government and pro-
posed by the national associations representing the county administration and
the local administration (municipalities, towns and «comunes»).
On the other hand, and in accordance with the interpretative declaration is-
sued by Romania concerning Article 4, paragraphs 4 and 5 of the ECLSG (see
supra, point 3) the «regional» authority corresponds to the county authority
(judeţ). From this perspective, the current structure of the EU development re-
gions is established in Regulation (EC) no. 176/2008 of the European Parlia-
ment and Regulation (EC) no. 1059/2003 concerning the establishment of a
common classification of territorial entities for statistics (NUTS) following the
accession of Bulgaria and Romania to the European Union.
A first attempt to implement NUTS in Romania was embodied in Law
no. 151/1998,15 making it possible for county councils to voluntarily associate to
establish development regions, but this was repealed by Law no. 315/2004.16
15
Law no. 151/1998 on regional development in Romania (Monitorul Oficial al României
n°265/16.07.1998).
16
Law no. 315/2004 on regional development in Romania, (Monitorul Oficial al României
n°577/29.06.2004).
551
simina tanasescu
Development regions are delimited by law, on the basis of geographical and

population density criteria. They are identified as territorial entities, lacking legal
personality, while this legal personality corresponds to NUTS II level. Their two
main functions are (i) statistical reporting and (ii) managing EU regional funds.
According to article 5 paragraph 1 of Law no. 315/2004, the territory of Roma-
nia is divided into the following eight development regions: North-East, South-
East, South, South-West, West, North-West, Centre and the Bucharest Region.
Development regions in Romania are not administrative-territorial units,
nor are they legal entities. They are areas consisting of two or more counties,
established on the basis of an agreement between representatives of the county
councils and representatives of the General Council of the municipality of Bu-
charest. These regions have the following common objectives:
a) Reduce regional imbalances, by encouraging balanced development;
b) Link sectorial government policies and activities at the regional level by
fostering initiatives and exploiting local and regional resources to attain
sustainable socio-economic and cultural development;
c) Foster interregional, internal and international co-operation as well as
trans border cooperation.
In spite of this EU-driven phenomenon, regionalisation in Romania is ham-
pered by a historical legacy involving national minorities and by chief execu-
tives of counties who fear that they will lose their powers to the new regions.
With this backdrop, regionalisation is thought of as the alter-ego of ethnic self-
government, which is associated with the weakening of the unitary state instead
of its decentralisation and subsidiarity. It also suggests a lack of political will to
support effective decentralisation. Romanian authorities treat regionalisation as
an expectation imposed by European bodies and a precondition for accessing
structural funds. In fact, development regions are thought of as formal entities
that facilitate access to European funds and then direct them to stakeholders.
They are not legal entities, nor administrative-territorial units, and they have no
territorial political powers and responsibilities.
(A) Constitutional Court of Romania (CCR) - http://www.ccr.ro/

– Decision no.822/2008 of the Constitutional Court
(B) High Court of Cassation and Justice, Administrative Section: http://
www.scj.ro/s_contencios.asp
552
12.2. Bibliography
(A) Books
Iancu, Diana-Camelia: Uniunea Europeană şi administraţia publică, Iaşi : Po-

lirom, 2010.
Imbrescu, Ion: Elemente de ştiinţa administraţiei. Introducere în administraţia
publică, Bucureşti: Lumina Lex, 2007.
Mrejeru, Theodor & Mrejeru, Bogdan Constantin: Autonomia locală adminis
trativă şi ecologia : doctrină, jurisprudenţă, Bucureşti: All Beck, 2004.
Popa, Eugen: Autonomia locală în România, Bucureşti: All Beck, 1999.
Popa, Eugen: Corelarea principiului autonomiei locale cu alte principii de
drept, Arad: Servo-Sat, 1998.
Popescu, Corneliu-Liviu : Autonomia locală şi integrarea europeană, Bucureşti:
All Beck, 1999.
(B) Law reviews
Transylvanian Review of Administrative Sciences - http://www.rtsa.ro/en/

Revista de drept public - http://www.beck.ro/revista_de_drept_public-c25-p0.html
Revista romana de drept european - http://www.wolterskluwer.ro/article--re-
vista-romana-de-drept-european--1945.html
Romanian Government: http://www.gov.ro/content/descentralizare/l/1

Ministry of Administration and Interior: http://www.mai.gov.ro/index05.htm
Federation of Local Authorities of Romania: http://www.falr.ro/
Institute of Administrative Sciences «Paul Negulescu» (Sibiu) : www.isar.ro
Association of «comunes» : www.acor.ro
Association of Municipalities: www.amr.ro
Association of Towns: www.aor.ro
National Union of County Councils: www.uncjr.ro
Federation of Associations of General Secretaries of Local Authorities: www.
secretariuatr.ro
Association of County Chief Architects: www.aasj.go.ro
553
Chapter 23:
LOCAL GOVERNMENT IN SLOVAKIA
Milan BUČEK
Juraj NEMEC
The history of Slovakia as an independent country and of its public admin-

istration is relatively short. The Slovak Republic was established on 1 January
1993, as the result of the amiable break up of Czechoslovakia, following major
changes after the «Velvet Revolution» in 1989. The first important steps in
public administration reform were launched in the early stages of the transition
period to replace the old «socialist» system. The first democratic elections were
held in June 1990, and became the basis for most of the changes in the public
administration system in Czechoslovakia.
By virtue of the National Council (Slovak Parliament) Act 369/1990, a new
territorial system replaced former local administration authorities and estab-
lished 38 districts, local and state administration offices and 121 sub-district
offices. Local self-government, created by this act, was intended to have char-
acteristics similar to those of developed countries (see subsequent chapters).
In 1996, Slovakia implemented a second wave of public administration re-
form, characterized by parallel themes of radical change in the territorial and
administrative structure of the state, and the establishment of a uniform two-tier
system of territorial structure, with a broad range of tasks and responsibilities.
These important changes were reflected in two significant pieces of legislation:
Act No. 221/1996, on the territorial and administrative sub-division of the Slo-
vak Republic, and Law No. 222/1996, on the organization of local administra-
tion. The first of these laws had two parts: the territorial sub-division and the
creation of the legal framework that would establish the spatial distribution of
self-governmental functions. Municipalities occupied the highest level in the
hierarchy of territorial units, and their administrations were closely linked to
the principles of self-government. The second part defined the administrative
sub-division of Slovakia into 8 regions and 79 districts, and limited the author-
555
milan buček - juraj nemec
ity of state bodies in local areas, unless these bodies were given special powers
by other laws. Regional and district offices of state administration were given a
broad range of tasks within this structure. Other governmental units included
municipalities and military counties that performed state administration re-
sponsibilities under special laws. The «1996 reform» in Slovakia aimed to in-
crease the effectiveness and quality of public administration and to create a
customer-friendly and responsive system serving citizens. The costs of the re-
form were much higher than planned, and results were very limited (Audit us-
trednej statnej spravy, 2000).
After the general elections in 1998, the new liberal government returned to the
issue of public administration reform as a key goal. Accession to the EU required
that regional self-government authorities be created and operationalized as a first
step in reform. The later phases of this wave of reform (which took place after the
2002 elections) focused on decentralization, by executing a massive transfer of
competences from state to local and regional authorities and by promoting a radical
change in the state administrative structure, marked by a return to the specialized
system and the abolishment of the district offices. The administrative and fiscal
decentralization measures that occurred during 2000–2005 set the foundation for
Slovakia’s current system of public administration, where local and regional self-
government supply most public services (see budgetary data in Section 8).
Decentralization measures marked the last important change in the Slovak
self-government system. No important changes were introduced during Prime
Minister Fico’s coalition period (2006-2010) and those who were actually im-
plemented are no longer a priority today. Important problems such as excessive
financial deficits will likely be handled through savings rather than structural
changes. Table 1 below provides different economic indicators in Slovakia:
Indicator/year 2002 2003 2004 2005 2006 2007 2008 2009
GDP (bil. Sk current

prices, EUR from 2008) 1091.8 1189.1 1325.5 1437.6 1636.3 1822.5 67.3 63.6
Inflation 3.3 8.5 7.5 2.7 4.3 1.6 3.9 1.8
Unemployment rate 18.5 17.4 18.1 14.6 13.3 10.9 8.0 11.7
Public debt (% GDP) 43.3 42.6 43.6 36.7 30.9 30.8 33.8 42.0
Public deficit (% GDP) -7.5 -3.6 -3.3 -3.4 -2.9 -2.9 -6.5 -7.9
Source: www.finance.gov.sk. www.nbs.sk
The Slovak Constitution was ratified on 1 September 1992, and became effec-
tive on 1 January 1993. It was modified in September 1998, to allow for the direct
556
local government in slovakia
election of the President, and later amended in February 2001 to allow Slovakia
to apply for NATO and EU membership. The head of executive branch is the
President, who is elected by direct, popular vote for a five-year term. The head of
government is the Prime Minister. The Cabinet is appointed by the President on
recommendation of the Prime Minister. The legislative branch is represented by
the unicameral National Council of the Slovak Republic (Narodna Rada Sloven-
skej Republiky) with 150 seats; the members of Parliament are elected on the
basis of proportional representation and serve a four-year term. The judicial
branch is represented at the top by the Supreme Court (judges are elected by the
National Council) and by the Constitutional Court (judges are appointed by the
President from a group of nominees approved by the National Council).
Two tiers of self-government exist in Slovakia: municipalities («obce») and
self-governing regions («samospravne kraje»).1 Cities («mesta») are munici-
palities that are declared as «cities» by the National Council of the Slovak Re-
public. Today, there are 138 «cities» in Slovakia. Special laws regulate the le-
gal status of the city of Kosice and of the capital, Bratislava. By 2010, there
were 2,883 municipalities in Slovakia and 8 self-governing regions: Bratislava,
Trnava, Nitra, Trenčín, Žilina, Banská Bystrica, Prešov and Košice.
Territorial fragmentation is a problem on both levels. On the one hand, the
number of municipalities is extremely high, and has increased continuously since
1989. The most part are very small municipalities: 68% have populations of less
than 1000 inhabitants. On the other hand, regional authorities are not large enough
to fulfil the criteria for NUTS II (under the EU cohesion policy terminology) and
have been classified as NUTS III, which creates a potential to increase transaction
costs in managing EU funds and in executing other responsibilities.
3.1. The role of the European Charter of Local Self-Government (ECLSG)
The Slovak Republic adopted the ECLSG in 1999, with reservations, agree-
ing to adhere to only the following parts: Article 2; Article 3. Part 2 ; Article 4.
Parts 1, 2, 4 to 6; Article 5; Article 6. Part 1; Article 7. Parts 1, 2 , 3; Article 8.
1, 2 a , and 3; Article 9. Parts 2, 3, 4 a and 8; Article 10. Part 1; Article 11. By
1 November 2002, the Slovak Republic had also accepted Article 6. Part 2, and
on 7 September 2007, all the remaining parts were also accepted. The Charter
was incorporated as an «acceptance of an international treaty», and according
to the Slovakian Constitution, international treaties are approved by Parlia-
ment, and will superseded domestic laws. The full content of the ECLSG was
accepted once national legislation was in line with all parts of the Charter.
1
In Slovak, the closest translation of «local self-government» is «miestna samosprava».
557
3.2. Constitutional arrangements and provisions on local government
The main source of local and regional self-government law is the Constitu-
tion. Chapter 4 states that Territorial Self-Administration (articles 64-71) pro-
vides all of the main principles for the organization of territorial self-govern-
ment, especially:
– The municipality is the basic element of territorial administration. The
municipality is an independent territorial and administrative unit of the
Slovak Republic, comprised of persons who reside permanently in its ter-
ritory. The self-government of higher territorial units and their bodies will
be established by law.2
– The municipality is an entity with full legal personality that, under condi-
tions established by law, manages independently its own property and fi-
nancial resources. Financing to cover its needs is, first and foremost, de-
rived from its own revenues, and also from state subsidies.
– The municipality decides autonomously on matters of local administra-
tion. Duties and restrictions may be imposed on the municipality only by
law. Territorial self-government is implemented by meetings of commu-
nity residents, by local referendums or through community bodies.
– The municipality may issue overall binding decrees in matters of local
administration.
– Municipal bodies include the municipal assembly and the mayor.3 The
municipal assembly is composed of «deputies», who are elected by secret
ballot, on the basis of a general, equal and direct right to vote. The mayor
is elected by citizens of the community by secret ballot and under the same
rights and conditions as the elections for deputies. The mayor constitutes
the community’s executive body, implements community administration,
and represents the community in all public functions and acts.
– The execution of State administration tasks can be transferred by law to
the local community. The costs associated with the execution of State ad-
ministration, transferred in this manner, are covered by the State.
Other core legislative sources for local and regional self-government

3.3.
in Slovakia
The National Council (Slovak Parliament) Act 369/1990 on local govern-

ment units is the main legislative source for municipal level government. This
2
The Constitution includes direct provisions regarding municipalities, but not about region-
al bodies.
3
The highest ranking executive political official in cities is called the «primator» or lord-
mayor. In municipalities without city status, this figure is referred to as the «starosta».
558
Act states that the system of local government is constituted in municipalities,

which are territorial and legal entities. Regional self-government level is de-
fined in the National Council Act 302/2001 on territorial self-government. The
main aspects of these laws are discussed later. Other important legal sources
associated with the main duties and responsibilities of self-governments are:
– Act 138/1991, on municipal property
– Act 303/1995, on budgetary rules
– Act 211/2000, on free access to information
– Act 416/2001, on decentralization
– Act 42/1994, on civil protection
– Act 54/1994, on the citizen registry
– Act 50/1976, on territorial planning and building control
– Act 222/1996, on the organization of de-concentrated State administration
– Act 263/1999, on public procurement
– Act 346/1990, on election to municipal bodies
– Act 552/2003, on public service
– Act 502/2001, on financial control and audit
– Act 400/2009, on the Civil Service Code
– Act 303/2001, on the election of territorial authorities
– Act 446/2001, on the property of territorial authorities
– Act 523/2004, on budgetary rules for public administration
– Act 221/1996, on the territorial and administrative structure of Slovakia
– Act 71/1967, on the administrative procedure.
This list of core legislation clearly reflects the phases of public administra-
tion reform in Slovakia. The first basic set of laws was adopted soon after 1989,
and the succeeding pieces of legislation are linked to the decentralization proc-
ess that was initiated at the beginning of this century. There are two exceptions
to this, that refer to the Acts on administrative procedure and on territorial plan-
ning, since they were enacted under socialist rule and later modified by minor
amendments. It should be pointed that standard administrative regulations do
not constitute a source of law for Slovak local government.

AUTHORITIES
Within the limits set by the laws pertaining to municipal and regional
self-government, both levels of local government have their own budgets
559
and assets. Local governments may issue ordinances that bind all individ-
ual or corporate bodies within their jurisdiction. Only parliamentary acts
can supersede or invalidate these ordinances. In some cases, local authori-
ties may be delegated additional powers to administer for the State, with
State funds. Any modification of the powers of local authorities must be
decided by Parliament. Barring statutory exceptions, local authorities are
independent of State supervision. All valid decisions made by municipali-
ties and State authorities are reviewable by the courts, in application of the
«cassation» or repeal principle. The plaintiff must ask for redress in the
appeals stage of the procedure, without which the suit will not be allowed
to proceed.
Local key bodies are elected directly by the inhabitants. Elected mayors
head the municipal offices. As the highest executive officers, they summon and
conduct the sessions of the local representative bodies, represent the office and
the municipality, and decide in all matters of local administration, except those,
which pursuant to law, are decided by the municipal assembly.
Regional authorities are also elected directly by the local population. Elect-
ed «regional presidents» head regional administrative offices. As the highest
executive officer, the «regional president» summons and conducts the sessions
of regional representative bodies, represents the office and the region, and de-
cides in all matters of local administration, except those that are decided on by
the regional assembly, according to the Law.
Each municipality or region has a chief auditor, who is responsible to the
municipal or regional assembly and is elected by the said municipal or regional
assembly on the recommendation of the mayor or regional president. This of-
ficial inspects local finances and accounts, the management of local property
and assets, and reports on the budget and final accounts.
Local authorities may freely associate with other local bodies and form re-
gional or other interest group organisations, to decide on and organize matters
specifically transferred to them by the constituent authorities.
4.2. Competences and responsibilities of local authorities
As previously stated, municipalities discharge their own proper functions,

as well as delegated State administration functions. Prior to decentralization,
municipalities managed their owned movable property and real estate, and any
state-owned property that had been temporarily ceded to the municipality by
the State, under the Law.
Municipalities also compile and approve municipal budgets and final ac-
counts, and may promote public discussions on these issues. They administer
local taxes and fees. They guide economic activities in the municipality, includ-
560
ing investments and the use of local resources. They also control the new busi-
ness activities, and issue positions on business plans if they affect the interests
of the municipality’s population. They create and protect healthy living and
working conditions, they promote environmental protection and provide condi-
tions for education, culture, artistic hobbies, exercise and sports. Municipalities
also approve territorial planning and zoning documents.
Municipalities establish, incorporate, cancel and control their own budget-
ary sub-units and bodies, as well as other local legal entities, in compliance
with special regulations. They also provide an array of services, including
police and fire fighting, local public transportation in big cities (Bratislava,
Kosice, Zilina, Presov and Banska Bystrica), construction, maintenance and
management of public space, local roads and parking places, green areas,
public lighting, market places, cemeteries, local water resources and wells,
water purification plants in small municipalities, sewerage, construction,
maintenance and management of local cultural establishments, health service
establishments, leisure and tourist establishments, infant homes, basic social
services (day care), nature and heritage protection, culture and artistic hob-
bies, etc.
The Transfer of Competences Act is particularly important in that it defines
the competences to be transferred to regional and local authorities, most of
which were delegated in 2001-2002. Municipalities were given new responsi-
bilities in several areas including: roadways, water management, citizen regis-
tration, social care, environmental protection, education (elementary schools
and similar establishments), physical education and sports, theatres, health care
(primary and specialized ambulatory care), as well as regional development
and tourism. Several of these competences were reallocated from direct minis-
terial responsibilities (hospitals, education, etc.). The most important State
functions delegated to municipalities were the building permits and citizen reg-
istration.
Regional authorities are responsible for competencies in areas of roads and
highways, railways, road transportation, civil protection, social care, territorial
planning, education (secondary education), physical education and sports, thea-
tres, museums, galleries, local culture, libraries, health care (polyclinics and
local and regional hospitals), pharmacies, regional development and tourism.
When State administration delegates responsibilities to regional self-govern-
ments, these become the second tier in the decision–making process.
5. BASIC ORGANIZATION OF LOCAL AUTHORITIES
In this section, we briefly describe the main aspects of local and regional
bodies organization in Slovakia (except for these mentioned in the previous
section).
561
5.1. The Municipal Council and the Mayor
The municipal council and the mayor are elected by direct election. Their
term of office begins the day the newly elected council is sworn in. The number
of council members as defined by the law is as follows:
a) Up to 40 inhabitants: 3
b) 41 to 500 inhabitants: 3 - 7
c) 501 to 1,000 inhabitants: 5 - 7
d) 1,001 to 3,000 inhabitants: 7 - 9
e) 3,001 to 5,000 inhabitants: 9 - 11
f) 5,001 to 10,000 inhabitants: 11 - 13
g) 10,001 to 20,000 inhabitants: 13 - 19
h) 20,001 to 50,000 inhabitants: 15 - 25
i) 50,001 to 100,000 inhabitants: 19 - 31
j) More than 100,000 inhabitants: 23 - 41
The division of responsibilities between the council and the mayor may be
described as follows:
(A) The Mayor or Lord-Mayor:
– Calls and leads the meetings of the municipal assembly and signs the min-
utes of the meeting.
– Executes public administration in the municipality.
– Represents the municipality in relations with State administration and le-
gal and private entities.
– Decides on all municipal matters, except those reserved by law or regard-
ing the municipal statute, or topics reserved for the municipal assembly.
(B) The Municipal assembly:
This body decides on all major aspects of municipal life, especially those
delegated specifically to it, such as:
– Defining the rules of municipal financial management, management of
municipal ownerships and management of State property used by the mu-
nicipality. It approves all major acts concerning ownerships, and controls
the use of municipal ownerships;
– Approving the municipal budget and its amendments, and controls the use
of municipal funds. It also approves the final budgetary accounts and the
emission of communal bonds, and decides on credits and guarantees;
– Approving he territorial plan for the municipality or a part of it, and estab-
lishes priorities in the development of all areas of municipal life;
– Establishing or abolishing municipal taxes and municipal fees, and other
tax-related aspects;
– Calling a municipal referendum and public meetings;
562
– Issuing municipal directives;

– Approving international cooperation agreements and memberships of a
municipality in international bodies;
– Defining the structure of the municipal office;
– Establishing the post of municipal auditor/comptroller, and deciding on
the salaries of the mayor/lord mayor and the municipal auditor within the
framework provided by law (minimum salaries are defined).
5.2. The regional council and the head of a region
The regional body council and the head or President of a region are also
elected by direct election. Their term starts on the day the newly elected council
is sworn in. The number of deputies to the regional assembly is determined by
the region – one deputy per 12-15,000 inhabitants. The roles of the assembly
and the head/president are defined in a similar way as for municipalities (see
above).
5.3. Municipal and regional administrative offices
Core Acts 369/1990, on self-government, and 302/2001, on regional self-

government, define the general principles governing the internal structure of
the municipal and regional authorities and the organization of their administra-
tive departments, as well as the responsibilities and relationships among these
offices. Local authorities may establish their own budgetary and internal or-
ganizations, or transfer some tasks to the private sector. Municipal offices con-
sist of local public employees, who are responsible for the administrative and
organisational aspects in the work of the mayor, as well as other activities of the
municipal bodies. In larger municipalities, the municipal office may be run by
a «principal» appointed by the municipal assembly upon proposal of the mayor.
This person is responsible to the mayor.
Regional self-government offices include administrative officials responsi-
ble for administrating and organizing the work of regional self-government
bodies. The regional self-government office is run by a principal, appointed by
the regional assembly on the proposal of the mayor, and is responsible to the
«regional president».
The municipal office executes the administrative and organizational matters
decided upon by the municipal assembly, by the mayor or lord mayor, and by
other bodies (committees) established by the municipal assembly. Namely, the
office performs the following tasks:
a. It prepares expert materials and other background information for the
meetings of the executive bodies.
563
b. It prepares a written record of all the municipality’s administrative deci-

sions.
c. It executes all the decisions of the municipal assembly and the mayor or
lord – mayor.
The tasks of the regional self-government office are virtually identical.
The staff of the municipal or regional office normally consists of permanent
employees, governed by civil service law and labour code rules. Managerial
posts are filled by candidates who have passed competitive exams. However,
there is no carrier system established. The municipal comptroller supervises
employment issues.
Inter-municipal cooperation is very active in Slovakia, and crystallises in

many forms. One of the main reasons for promoting intensive cooperation is to
offset the high level of territorial fragmentation in Slovakia, as noted above.
The number of municipalities has risen to 2,883 since 1989, and many of these
(68%) are very small, with less than 1000 inhabitants. This is a significant trend
if one considers that Slovakia has a surface area of 49,034 km2 and a national
population of about 5.4 million.
(A) Joint municipal offices
Joint municipal offices are encouraged to serve small municipalities
(«Spolocny obecny urad»). In general, local authorities are restricted to act only
within their area, but in order to execute their competences, local governments
are allowed to set up joint municipal offices whose sphere of influence encom-
passes all of the self-government units of the joint municipal office. The office
deals mostly with the issuance of building permits for projects where demon-
strated qualification is a prerequisite to initiating an activity. Other joint activi-
ties include elementary education, citizen registry, etc.
(B) Micro-regions
Another common form of intermunicipal cooperation is the micro-regions
(«mikroregióny»), associated the use of EU structural funds. Micro-regions are
legal entities created by several municipalities for a given purpose. The follow-
ing is an example of a micro-region including. The Micro-region Terchovska
dolina, which includes 17 small municipalities in northwest Slovakia, is a good
example of such micro-region.4
4
The micro-region Terchovska dolina was created under Law 369/1990 on municipalities and
the laws that regulate associations. It represents the voluntary and independent interest of member
municipalities to associate. The goal of the association is to coordinate self-government activities
564
(C) Other forms

Other common forms of municipal cooperation are associations or joint
companies that are created to provide local public services. Once again, the
need for these associations is the result of territorial fragmentation that prevents
implementation of «scale economies». Several of these entities were set up to
provide waste collection and disposal. Municipalities may also establish joint
companies for different types of business activities.
6. HUMAN RESOURCES
Three different «types» of employment status are used today in municipal

and regional authorities: (a) genuine civil servants; (b) public employees; and
(c) contract employees. Civil servants represent a small group of personnel,
who administer delegated state administration functions. They are governed by
the Civil Service Code and have a genuine «civil servant» status. «Public em-
ployees» constitute the largest group in the local authorities staff. All employ-
ees of self-government bodies carry out tasks in the public interest and have the
authority to decide upon the rights and duties of legal or physical entities in
public administration areas. «Public employees» are governed by Act 552/2003
regarding the public service. Finally, other employees are personnel hired un-
der a contract, and they are governed by the Labour Code.
Table 2
Data on employment and salaries in local authorities
Employment and salaries
Number of
Average number Average monthly

units
of employees salary
2009 2009 EUR
Organizations owned by self-governments 10,914 193,989 665.32
Municipal offices 2,925 21,401 881.79
Regional offices 8 1,620 1,100.37
Commercial organizations 105 16,420 727.70
Classic budgetary organizations 7,262 122,926 618.59
Other budgetary organizations 583 29,262 648.54
Source: Statistics Office of Slovakia.
among members to carry out the «Clean river Vah» program, provide local public services, develop
tourism, protect and develop the environment on a local and regional level, and fundraise. To ac-
complish these tasks, the association has the right to establish companies and other legal bodies, or
to become a part of such bodies. The association represents all of its members in relations with state
administration bodies, international bodies and other legal subjects (for selected basic facts, see:
http://www.mikroregion-td.sk/content/view/29/29/).
565
6.1. Conditions of service
Administrative employees of self-government bodies are recruited and em-

ployed mainly under Law 552/2003. This means that public examinations are
held to fill positions of main managerial functions in the public sector on a
national, provincial or local level. All other positions are filled according to
the rules of the Labour Code. Normally, new employees receive indefinite la-
bour contracts following a three-month probation period. Job security is lim-
ited, however, because most employees in managerial positions are often re-
placed after local elections on the basis of discretionary decisions by new
mayors or assemblies. The only exception to this is the position of Municipal
or Regional Auditor, who is elected by municipal or regional assemblies. Staff
salaries are regulated, in part, by rules governing the remuneration of civil and
public servants. The minimum and maximum salary levels for mayors and
auditors are set by law.
Following the elimination of the Civil Service Office (2005), all human re-
source management processes were fully decentralised. There are no formal
rules governing career progression. Normally, a career plan and annual updates
are created for each professional employee. No specific training is needed to
become an employee of a municipality (except for those in civil service posi-
tions). During their career, employees may engage in many types of training
programs organized by the Association of Municipalities, the Ministry of Inte-
rior, some central Departments, and also by many private and non-profit bod-
ies, including universities.
The performance of the local employees is evaluated by the head of the mu-
nicipal office, but there are no fixed rules for this process.
There is no maximum age limit or any other restrictions including a specific

educational level, in order to be elected as representative of local government.
Retirement rules for administrative employees are defined by the Labour Code.
On the other hand, fixed contracts or temporary service are not standard instru-
ments and are reserved only for nominated positions, providing this condition
is announced in advance. In these rare cases, the person holding the position
must re-enter the competition for the post. If the person fails to pass the compe-
tition and is not re-appointed, he might still be offered a position in the general
local administration but this is never guaranteed.
The Labour Code defines very specific cases in which employment under
contract can be terminated (such as continuous non-fulfilment of obligations,
consumption of alcohol during the office hours. etc.). The code defines the
specific procedure for each case of termination. A final remark is here suitable:
too high a level of decentralisation of human resources management in local
authorities is the result of greater autonomy, but also a lack of central coordina-
566
tion. From this perspective, Slovakia was strongly criticised in the recent SIG-
MA OECD report on civil service (SIGMA OECD. 2008).5
In 2004-2005, the new fiscal decentralization system was established, and a

large proportion (about 65%) of self-government income consists of its own
revenues (including shared taxes); however, some mechanisms for equalization
are still missing. The current financial basis for local and regional self-govern-
ments is best described in the data from the state budget materials (www.fi-
nance.gov.sk).
7.1. Municipal finance
Table 3 relates the current financial status of municipalities in Slovakia: it

reflects actual figures for 2009, planned figures for 2010 (annual budget), and
projected figures for the following two years. Figures in thousand € (source:
www.finance.gov.sk).
2009 2010 2011 2012
Total Revenues 3,587,160 3,684,372 3,931, 287 4,135, 095
Revenues items:
– Tax revenues 1,780,436 1,544,678 1,793,176 2,002,670
– Other own revenues 494,589 507,867 511,186 516,829
– Grants and transfers 1,001,772 1,264,039 1,255,153 1,247,143
– Sale of bonds 8,298 9,294 9,958 9,958
– Transfers from previous periods 136,095 142,734 146 053 159,331
– Credits 165,970 215,760 215 761 199,164
5
The report stated that: «Slovakia is the country with a major gap in terms of civil service
management. Slovakia used to have a civil service office that was the strongest in the region. The
Civil Service Office not only played a standard role in the management of reform and in the control
of implementation, but it also had far-reaching powers in recruitment, examination, selection and
evaluation, as well as in the control of staffing and personnel costs (cf. «systematisation»). .. Since
the abolition of the Civil Service Office, civil service management in Slovakia has officially returned
to the Ministry of Labour, where it was located before the implementation of the Civil Service Act in
2002. …The Civil Service Department therefore lacks the capacity to prepare civil service reform or
to control the implementation of the Civil Service Act. .., the disintegration of the civil service and
heterogeneity in terms of management practices are rapidly increasing».
567
2009 2010 2011 2012
Total Expenditure 3,426,170 3,492,512 3,715,526 3,922654

Expenditures items:
– Salaries and social contributions 1,228,789 1,228,789 1,287,188 1,354,575
– Goods and services 847,995 846,213 984,085 1,022,241
– Transfers 327,823 345,072 351,494 388,369
– Credit repayments 36, 513 34,173 35,173 39,833
– Capital expenditures 835,677 862,337 901,575 961,624
– Providing credits 33,194 33,194 33,194 23,236
– Other financial operations 116,179 142,734 122,817 132,776
Ear-marked grants and transfers still represent an important part of munici-

pal revenues. The main sources of planned grants in 2010 are:
– Transfers from Budget Chapter of the Ministry of Education to finance
current expenditures (657,698 thousand €) and capital needs (56,804
thousand €). The transfer for education services is the most important
revenue transfer on the municipal level. Most elementary education costs
are a delegated responsibility. A part of current transfers will be used to
co-finance EU funded projects.
– Transfers from the Ministry of Interior amount to 15,809 thousand €. Of
this sum, 8,458 thousands EUR are allocated to cover the costs of local
elections. The rest represents transfers for delegated responsibilities perti-
nent to the citizen registry.
– The Ministry of Transportation provides 278,000 € to cover costs associ-
ated with the delegated responsibility of issuing building permits.
– The Ministry of Building and Regional Development is expected to pro-
vide 314,327 thousand €, of which, 6,008 thousand € are for delegated
responsibilities in the area of housing. The rest will be used to finance re-
gional development goals and cofinance EU funded projects.
– Transfers from the Ministry of Environment total 10,184 thousand €. A
small part of this sum (619,000 €) will cover the costs of delegated envi-
ronmental protection responsibilities, and the rest will be used to finance
various environmental projects.
– The Ministry of Economy provides resources to cofinance EU projects
(37,967 thousand €).
– The Ministry of Social Work transfers 11,681 thousand € to finance social
benefits.
– The Ministry of Culture covers the costs of reconstructing historical build-
ings and subsidizes cultural activities (122,000 €).
568
– The grant from the Office of Governments (4,334 thousand €) is targeted

to fund minority policies and provide subsidies for sports development.
– The State Housing Fund provides 266,000 € and the State Environmental
Fund 38,607 thousand €.
Table 4 lists municipal expenditures according to the local services provid-
ed (in thousand €).
SERVICE 2010 2011 2012
01 General public services 820,301 838,397 894,949

02 Defence 450 460 470
03 Security and public order 51,749 58,346 63,781
04 Economy 410,476 428,677 460,352
05 Environment 281,936 303,839 318,410
06 Housing 416,503 464,362 491,075
07 Health care 10,290 11,618 12,431
08 Recreations. culture a religion 227,903 235,277 249,627
09 Education 1,143,400 1,232,826 1,276,783
10 Social protection 129,503 141,724 154,776
Total 3,492,511 3,715,526 3,922,654
Source: www.finance.gov.sk
7.2. Regional finances
Table 5 summarizes the current financial situation of regional self-govern-

ments in Slovakia: actual amounts from 2009, planned amounts for 2010 and
projected amounts for the following two years (in thousand €).
2009 2010 2011 2012

Revenues total 1,120,108 1,110,182 1,142,337 1,234,658
Items:
– Tax revenues 595,326 502,002 583,287 651,402
– Other own revenues 59,749 75,337 73,027 81,325
– Grants and transfers 415,242 434,288 428,521 445,501
– Sale of property 996 996 0 0
– Transfers from previous periods 15,601 19,583 17,212 23,236
– Credits 33,194 77,976 40,290 33,194
569
2009 2010 2011 2012
Expenditures total 1,120,108 1,055,177 1,142,337 1,222,912

Items:
– Salaries and social contributions 379,864 359,765 374,146 401,020
– Goods and services 245,887 222,332 244,333 266,272
– Transfers 331,939 344,591 350,897 355175
– Credit repayments 4,647 7,958 13,278 14,937
– Capital expenditures 147,813 88,363 145,741 168,247
– Providing credits 664 664 664 664
– Other financial operations 9,294 31,504 13,278 16,597
The planned sum of grants is 434,288 thousand €. Most of grants are ex-
pected from the Ministry of Education to cover delegated responsibilities in the
secondary schooling (400,979 thousand €).
Table 6 lists regional self-government expenditures according to the func-
tional classification, that is, according to the services in which the monies are
spent (in thousand €).
2010 2011 2012
01 General public services 95,134 102,901 118,046

04 Economy 190,581 220,272 239,619
07 Health care 9,958 11,618 12,200
08 Recreation, culture and religion 60,861 65,533 72,100
09 Education 504,625 531,582 556,212
10 Social protection 194,018 210,430 224,735
Total 1,055,177 1,142,336 1,222,912
The laws on municipal and regional government property provide Slovakian

local authorities with fully exclusive power to own all kinds of property to
carry out its own and delegated responsibilities, and also to engage in eco-
570
nomic activities through municipal or regional firms whose objectives may not
be aimed specifically at public service (forest management, local business).
Municipal or regional property in Slovakia consists of assets, ownership
rights and ownership rights of all bodies established by municipalities or re-
gions. Municipal (and later, regional) property in Slovakia was established in
three main phases (see, for example, Papcunova and Balazova, 2006):
1. First phase, 1991-1993: municipalities received many property holdings
during the privatization and restitution process.
2. Second phase, 1994-2001: the most common way of obtaining new prop-
erty in this phase was to own constructions financed partly by transfers
and from municipalities’ own resources.
3. The third phase occurred after 2002, and is associated with the decen-
tralization processes: assets (such as schools and health care establish-
ments) were transferred with new responsibilities. Regional self-govern-
ment property was also constituted at this time. This phase ended in 2005
and today, the most common way to obtain new assets is to own or co-
finance investments (many of which are financed with EU funds).
Municipalities and regions can use their properties for the following pur-
poses: (a) Fulfilling their own administrative responsibilities and the State-del-
egated ones; (b) Supplying local public services; (c) Engaging in commercial
activities. Realty cannot be granted to any other legal entity, but can be sold or
rented, with the approval of the municipal or regional assembly.
Table 7 provides information about the value of the assets of municipalities
and regions in Slovakia (in thousand €). The most common asset is buildings,
especially school buildings.
2008 2009 Variation

Municipalities
Long term non-tangible assets 17,649.0 19,971.0 +2,322.0
Long term tangible assets 8,750,281.0 9,418,244.0 +667,963.0
Regions
Long term non-tangible assets 12,000.0 9,099.0 -2,901.0
Long term tangible assets 857,503.0 943,747.0 +86,244.0
As indicated above, local authorities are fully autonomous bodies that man-
age their own responsibilities. Citizen initiatives and internal control and audit-
571
ing systems are the tools that ensure proper functioning of self-government. As
a general rule, only the courts have the power to alter decisions made by self-
governments. The state prosecutor can only challenge decisions of municipal
assemblies in courts and request they be revised.
9.1. Citizens’ control and oversight
According to the Law, citizens have the right to participate in local or re-
gional referendums, lodge complaints, present proposals or other issues to the
municipal and regional bodies, and participate in municipal meetings. Local
and regional referendums and municipal meetings are also instruments of self-
government. Municipalities and regions regulate specific aspects of public par-
ticipation by issuing decrees.
The legal scheme on local government does not limit the range of affairs that
can be decided upon by local or regional referendums. The Constitution states
that a referendum cannot be called to decide on basic human rights, the na-
tional budget or taxes. Local or regional elected Councils can call a referendum
at will or be obliged to do so under the following conditions: (a) It will be called
automatically, if the purpose is to decide about the name of the municipality or
to split or merge municipalities; (b) It may also be called in accordance with a
signed petition of at least 30% of the inhabitants if its purpose is to dismiss the
municipal or regional elected president or to decide on other issues named in
the petition. Local or regional referendums are valid if a minimum of 50% of
the eligible voters participate and more than half of them vote in favour of it.
Local democracy and control are also exercised through complaints. A com-
plaint against a regional or local council and its office begins with an evaluation
of the issue and a decision by the «Petitions Committee». The formal rules for
establishing the committee are described in the authority’s internal directives.
All such decisions are reviewed by the municipal auditor, on a local level, and
by the Office of the Regional Auditor, on regional level. The number of com-
plaints varies. For example, the Office of the Regional Auditor in Banska
Bystrica region reviews about 200 complaints yearly. Reports on these reviews
are included in the annual auditor’s report.
9.2. The Ombudsman
Slovakia, as a small country, and has only one Ombudsman, who is respon-
sible for citizen grievances lodged against all levels of government (state, re-
gional and local), unless otherwise specified by law. This public defender of
rights may act on his own initiative or in response to a complaint by a person or
legal entity. A complaint can be filed in writing, made verbally and incorpo-
rated into the minutes of a meeting, or by telegram, fax or e-mail.
572
10. PROTECTION OF LOCAL SELF- GOVERNMENT
As indicated above, local and regional governments are provided with a very
comprehensive level of autonomy. The Constitution guarantees that duties and
restrictions to self-governments can only be imposed by parliamentary legisla-
tion. Moreover, prosecutors and the Ombudsman can only request that local deci-
sions and measures be revised, but they cannot issue orders revoking such deci-
sions and measures. There are very few standards established for central services
(for example educational curricula), so for most local public services, local au-
thorities can freely decide on how and in what form the service is to be provided.
Such a wide span of self-government capacities can be advantageous, but at
the same time, it can cause drawbacks, particularly in the inefficient use of
public funds. Indeed, economic problems have emerged, and starting in 2006,
the National Audit Office (NKU) was given the right to audit local authorities,
including areas in which these bodies have exclusive responsibility. All local
authorities must cooperate with NKU to provide support for its activities, de-
liver the necessary information or materials on time, provide explanations, and
conduct «ordered» audits and control of all bodies within their sphere of re-
sponsibility. NKU has the right to direct access to any information system used
by self-government bodies.
Slovakia is represented in the EU Committee of Regions by five delegates

(as of early 2011). Three of them come from the local and regional world: two
lord-mayors and one head of a regional self-government.
According to the Constitution and other legislation, self-government bodies
do not have direct legislative role on the national or international level. How-
ever, this does not mean that they are not active in this area. The main channel
to influence legislative changes and developments on the national but also in-
ternational level is via voluntary associations, namely the Association of mu-
nicipalities (ZMOS), the Association of lord-mayors and the Association of
heads of regional self-governments. These bodies are consulted by the central
government or the National Council, as a rule, for all proposals influencing
self-government rights, tasks and responsibilities. They have also a very good
lobbying position towards Slovak deputies in the European Parliament (for ex-
ample in 2011 one of Slovak deputies in the European Parliament was simulta-
neously also the head of self-governing region).
11.1. Local authorities and the use of EU funds
As one of the new member states, Slovakia has complete access to EU structural
funds. Table 6 summarizes the uses of resources for the previous planning period.
573
Table 6
Use of allocated resources from EU funds
Allocation 2004-2006
in € Funds not used as Funds not used
(including automatic of as of
Program document reductions 2004 and 30.06.2008 in € 30.06.2008 as %
2005)
EU resources
SOP Industry and Services 151,211,000 41,074,330 27.16
SOP Human Resources 284,480,923 84 766 646 29.80
SOP Agriculture and Rural 182,987,987 23 128 538 12.64

Development
OP Basic Infrastructure 422,363,453 89 639 582 21.22
Bratislava Objective 2 37,032,713 10,444,727 28.20
Bratislava Objective 3 37,118,134 19,758,128 53.23
IS INTERREG IIIA Austria 8,051,928 2,402,987 29.84

– Slovakia
IS INTERREG IIIA Poland 9,500,000 1,163,180 12.24

– Slovakia
IS INTERREG IIIA Slovakia- 4,667,299 722,845 15.49

Czech Republic
IS INTERREG IIIA Hungary– 9,500,000 2 441 454 25.70

Slovakia-Ukraine
IS EQUAL 22,266,351 7,315,725 32.86
Total 1,169,179,788 282,858,140.49 24.19

Source: Ministry of Finance
The seven Slovak regions (except Bratislava) are eligible to use all the gen-
eral funding instruments, while the capital Bratislava (a self-governing region
in itself), with a much higher income level (above average), is limited to spe-
cific instruments. Municipalities and regions are recipients of large sums of EU
funds to support all kinds of investments such as building and reconstruction of
roads, reconstruction and improvement of schools, construction of sewage sys-
tems and waste disposal facilities, environmental enhancement and support for
services involving sports, culture, and minorities.
Another important source of international aid is the Norwegian fund.
574
The Slovak legal system is based on the «German» written law tradition,
meaning that previous court decisions, on any level, are not a sufficient source
of law. Moreover, no such important decisions influencing local government
rights and duties are noticeable.
Adamaschek, B. (2000): Efektivita vo verejnej správe. Bratislava: Vydavateľstvo

Bertelsmannovej nadácie.
Benco, J.; Bercik, P. & Makara, Š.: Organizácia a riadenie verejnej správy.
Banská Bystrica: Ekonomická fakulta UMB. 1995
Berčík, P.: Ekonomický systém miestnej samosprávy. Dizertačná práca. Eko-
nomická fakulta Univerzity Mateja Bela. Banská Bystrica. 2003.
Bercik, P. 1999: Financovanie miestnych samospráv v Slovenskej republike.
Banská Bystrica: Ekonomická fakulta UMB. 1999.
Nemec, J. & Wright, G.: Verejné financie. Teoretické a praktické aspekty vere-
jných financií v procese transformácie krajín strednej Európy. NISPAcee.
End. spol. s r. o. Bratislava. 1997.
Papcunová, V. & Balážová, E.: Majetok obcí. Nitra : Slovenská akadémia
pôdohospodárskych vied. 2006.
Svantnerova, L. a kol.: Ekonomika obcí (vybrané kapitoly). Banská Bystrica:
EF UMB. 1995
Svantnerova, L.: Predpoklady rozvoja municipálnej ekonomiky. Banská
Bystrica: EF UMB. 1997
Zarska, E. a kol.: Komunálna ekonomika a politika. Bratislava: Vydavateľstvo
Ekonóm 2007.
Bibliography in English
Bouckaert, G.; Nemec, J.; Nakrosis, V.; Hajnal, G. & Tonnisson, K.: Public
Management Reforms in CEE. Bratislava, NISPAcee. 2008.
Klimovský, D.: Reform of the Public Administration System at the Local and
Regional Levels in the Slovak Republic. Centre for Small State Studies Uni-
versity of Iceland, February 2008.
575
Nemec, J.; Bercik, P. & Kuklis, P.: Local governments in Slovakia. In the col-
lective book: Horvath. T. M. ed.: Decentralisation: Experiments and Re-
forms. Budapest: OSI/LGI 2000.
Nemec, J.: «Decentralisation Reforms and their Relations to Local Democracy
and Efficiency: CEE Lessons». In: Setnikar Cankar S. and Ševič. Ž. eds.
Decentralisation and regionalisation: the Slovenian experience and an in-
ternational perspective, Greenwich University Press, 2008.
Nemec, J.: «Local government finance in Slovakia». In: Ševič Ž. ed.: Local pub-
lic finance in the EEC. Cheltenham UK : Edward Elgar. 2008, p. 391-413.
12.3. Internet resources6
Slovak Government web pages: www.governmnet.gov.sk.

Ministry of Interior and its Section on State Administration: www.minv.sk.
Slovak Association of Cities and Towns. (ZMOS): www.zmos.sk
Webs of universities with programmes in public administration:
– Economic University Bratislava. Faculty of National Economy (www.
euba.sk)
– UMB Banská Bystrica. Faculty of Economics and Faculty of Political Sci-
ence and International Relations (www.umb.sk)
– UPJŠ Košice. Faculty of Public Administration (www.upjs.sk)
– Comenius University Bratislava. Faculty of Social and Economic Science
(www.uniba.sk)
– TnU AD Trenčín. Faculty of Socio-economic Relations (www.tnuni.sk)
– Technical University Košice. Faculty of Economics (www.tuke.sk)
– SPU Nitra. Faculty of European Studies and Regional Development
(www.uniag.sk)
6
Almost all municipalities and all self-governing regions have their own web pages, and
some of them are in English. The quality of these pages has improved significantly in the last few
years.
576
Chapter 24:
LOCAL GOVERNMENT IN SLOVENIA
Franc GRAD
In Slovenia, local government was established in the middle of the 19th

century, when its territory was a part of the Austro-Hungarian monarchy. After
World War I, when Slovenia became a part of the Kingdom of Serbs, Croatians
and Slovenians (later the Kingdom of Yugoslavia), the system of local govern-
ment was established by Yugoslav legislation. During that period, local govern-
ment consisted solely of municipalities. There were also larger territorial units
similar to districts, but they had only an administrative character. Nevertheless,
the system of local government did not differ much from that of other European
countries. The situation changed radically after World War II, when Yugosla-
via became a socialist country and a federation. Local government took a very
different turn, following at first the Soviet model and later forming its own
model based on the so-called communal system.
After World War II, the uniform vertical organisation of State power was
introduced in the Yugoslav Constitution of 1946 and the Constitution of Slov-
enia of 1947. At the local level, this was apparent in the multi-tiered organisa-
tion of the people’s committees. These were established at the levels of villages,
quarters, towns and districts. Two principles were characteristic for relations
among them: that of hierarchy and that of accountability of the lower people’s
committees to the higher ones. But all committees were subordinated to higher
State authorities.
After 1952, a different development took place. First, a two-tiered system
of local government with municipalities and districts was established, and the
autonomy of local authorities increased. In 1955, the so-called communal sys-
tem was introduced. Municipalities assumed the central role, and districts
were shortly abolished. Municipalities were supposed to be the basic socio-
economic social cells in a given territory, and at the same time a basic unit of
State power, as they were charged with the execution of the majority of State
577
franc grad
regulations. This soon meant that municipalities became too small for the ex-
ecution of all their duties, which is why they grew more and more big and fi-
nally they came near to the size of the former districts. At the same time, the
overloading of municipalities with State duties caused neglect of their local
responsibilities, since - as the first tier of State authority- they were focusing
mainly on those of the State. In performing State duties, however, municipali-
ties enjoyed considerable independence from State authority and acted princi-
pally in accordance with local interests; in so doing, they quite successfully
avoided its control.
The end results were that municipalities were too large to perform the usual
local tasks, but at the same time too small to carry out the functions of a real
second tier of local government. For this reason, smaller territorial units—local
communities—were established within municipalities. These communities
dealt with local needs, but their position was too weak to be compared with
modern European municipalities.
The Slovenian Constitution, adopted in 1991, introduced a new system of
local government which, according to the original concept, should follow the
pattern of contemporary European municipalities. In many ways, however,
the system differed from this original idea, later causing numerous problems
in adopting local legislation and in establishing the system of local self-gov-
ernment.
According to the Constitution, local government is to be exercised through
municipalities and other local communities. Until that time, only municipalities
had been established, since (according to the Constitution) wider self-govern-
ing local communities (including provinces) were not obligatory and should not
be created by the State, but should be the consensual creation of the munici-
palities themselves. In 2006, the Constitution was amended, making «provinc-
es» obligatory. Therefore, this constitutional amendment in the area of local
government has enabled Slovenia to create a two-tiered system of local au-
thorities. Nevertheless, «provinces» have still not been established, since po-
litical agreement as to the number of the future provinces and their territories
has not yet been reached.
2.1. Local government bodies
According to the Slovenian Constitution, local government is two-tiered in

structure, with the municipality (občina) as the lower tier and the «province»
(pokrajina) as the upper. As stated above, provinces have not yet been estab-
lished. Apart from the ordinary municipalities, the Constitution provides for
the existence of the «urban municipality» (mestna občina) which, according to
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local government in slovenia
Art. 141 of the Constitution, may be allocated specific duties and functions
related to urban development. There are 11 such urban municipalities in the
country.
According to the Local Government Act (see below, point 3), the mu-
nicipality, with at least 5,000 inhabitants, is the basic self-governing local
body; an «urban municipality» must have at least 20,000 inhabitants. A mu-
nicipality may be comprised of a single community or of a number of com-
munities whose inhabitants are linked by common needs and interests. It
may be established by statute, following a favourable vote in a popular ref-
erendum held in the area affected. Thus, the National Assembly (the Slove-
nian Parliament) decides on the boundaries of a municipality on the basis of
a non-binding referendum of the inhabitants, but usually acting in accord-
ance with its outcome.
The same process is followed both for the establishment of a new munici-
pality and for various changes of the municipal territory. The latter may occur
if two or more municipalities merge into a single new one, or if a municipality
splits into two or more, or if one part of a municipality separates from the rest
and establishes itself as a new municipality or joins with one already existing.
In all these cases, the will of the residents of the affected territories must be
determined by referendum. A municipality may therefore not be established
without a referendum: its celebration is obligatory.
The Local Government Act regulates the conditions that a municipality

must meet in order to carry out its basic functions. Accordingly, a municipal-
ity must guarantee the conditions enabling it to provide primary education
and health care, essential goods, and postal, library and other municipal serv-
ices; it must also dispose of the premises for local community administration.
In addition, and as explained above, a municipality must consist of at least
5,000 inhabitants. Exceptionally, a municipality may have fewer than 5,000
inhabitants for reasons related to geography, border location or ethnic com-
position, or for historical or economic reasons. Despite the legal minimum of
population for founding a municipality, currently more than half of Slovenian
municipalities (111) fail to fulfil this basic criterion. Many of them were po-
litically enforced and created on the basis of one of the abovementioned ex-
ceptions.
On the other hand, the Slovenian system does not distinguish between «ru-
ral» and «urban» municipalities; it does, however, allow for the possibility of a
town acquiring a special status as an «urban municipality» (mestna občina).
Specifically, Art. 141 of the Constitution states that a town may attain the status
of «urban municipality» in keeping with the procedures and under the condi-
tions set by law. As part of its original competences, an «urban municipality»
also carries out particular duties related to urban development, as established
by law.
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An «urban municipality» (mestna občina) is a compact settlement or group

of settlements linked in a unified geographic area in which the people in the
periphery commute daily into the centre. A town may acquire such status if it
has at least 20,000 inhabitants and at least 15,000 jobs, of which at least half
must be in tertiary and quaternary activities. In addition, this town must be the
geographic, economic, and cultural centre of its gravitational area. An urban
municipality is founded by the National Assembly in the same way as an ordi-
nary municipality. The law determines the territory and name of the urban mu-
nicipality.
As stated in the Local Government Act, in addition to meeting the condi-
tions for establishing ordinary municipalities, «urban municipalities» must
guarantee the following services:
– vocational schools and colleges
– university college departments and faculties
– a hospital
– a network of civil services
– a telecommunications centre
– university and specialised libraries
– specialised information documentation centres
– cultural activities (theatres, museums, archives)
– local radio and television stations and press
– sport and recreation areas and facilities
– scientific and research activities.
In addition to these, an urban municipality also carries out other tasks spe-
cifically related to urban development, as provided by law.
The Local Government Act also provides for the special status of «city»,
which can be obtained by a larger «urban settlement» (if it meets certain statu-
tory conditions) through a decision of the National Assembly; this does not
mean, however, that such an urban settlement also acquires the status of an ur-
ban municipality. Finally, the Law provides for the establishment of special-
status municipalities, due to specific conditions related to location, level of
development, etc.
In 1994, when the reform of local government took place, 147 new munici-
palities were created; since then, many more new municipalities have been es-
tablished. Consequently, in Slovenia there are now 210 municipalities, of which
11 are «urban» ones: Celje, Koper, Kranj, Ljubljana, Maribor, Murska Sobota,
Nova Gorica, Novo mesto, Ptuj, Slovenj Gradec and Velenje.
Although municipalities in Slovenia vary greatly in terms of population,
the majority of them are quite small. More than half have fewer than 5,000
inhabitants. The largest is the urban municipality of Ljubljana, with a popula-
tion of 276,313, and the smallest is the municipality of Hodoš, with only 371
inhabitants.
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The following table provides a breakdown of municipalities by population:
Inhabitants Nº of municipalities % of municipalities
Under 5,000 110 52.38

5,000 to 10,000 47 22.38
10,000 to 50,000 50 23.80
50,000 to 100,000 1 0.48
Over 100,000 2 0.96
Total 210 100
2.2. Territorial subdivisions of a municipality
A municipality (which is otherwise territorially unified and constitutes the

basic local self-governing community), may be subdivided into smaller units,
which are the subject of regulation by municipal statutes, as are their organisa-
tion and their mode of functioning. Under the Local Government Act, these
subdivisions may be organised as «local», «village» or «quarter» communities.
In practice, they are organised mainly as «local» communities, which for the
most part are carryovers from the former socialist system. All are self-govern-
ing communities with their own bodies, including directly elected councils.
When establishing such smaller units, the municipal council must take into
consideration the characteristics of the area, particularly those which are geo-
graphic, economic, historic, administrative and cultural in nature. The initiative
for subdividing the municipality may be taken by the assembly of residents or
by a certain number of residents of a part of the municipality. Prior to the sub-
division, the municipal council must determine whether such an action will be
in the interest of the residents of the part of the municipality in question. Ac-
cording to the Local Government Act, such interest must be determined through
the assembly of residents or by referendum.
3.1. The European Charter of Local Self-government (ECLSG)
In 1996, Slovenia ratified the ECLSG with no reservations or declarations.

The Charter has been formally transposed into Slovenian domestic law with the
ratification act adopted by the National Assembly (the Parliament). The effects
of the reception of the Charter are direct. Specifically, Art. 8 of the Slovenian
Constitution provides that ratified and published international treaties must be
applied directly, thus becoming a part of the Slovenian legal system. By Slov-
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enian constitutional law, international treaties are ranked between constitution-

al and ordinary statutes, i.e., statutes must be in conformity with ratified inter-
national treaties (Art. 153). Also, Slovenian courts must apply ratified
international treaties as a legal basis for their rulings.
3.2. Constitutional regulation
The fundamental regulation of the Slovenian system of local self-govern-

ment has been established by the Constitution. This regulation is detailed fur-
ther, in particular by the Local Government Act, and also by other laws and
regulations in this area. In addition to these bases of local autonomy, it is also
necessary to mention the decisions of the Constitutional Court, which in this
area are especially numerous and significant (see infra, point 12).
In its general provisions (Art. 9), the Constitution guarantees the right to lo-
cal self-government, thus raising it to one of the most important of constitu-
tional values. Specific provisions on local government are laid down at Arts.
138-144 of the Constitution, but it is also mentioned in other articles. Until
2006, the Constitution made only single-tier local government obligatory, while
the second tier (which would allow for broader self-governing local communi-
ties that could also be established as regions or «provinces») were not obliga-
tory and depended entirely upon the will of the municipalities. This explains
why no region or «provinces» (pokrajina) could have been established until
2006; nevertheless, not a single pokrajina has been established since then, in
spite of the aforementioned constitutional changes, as noted at point 1, supra.
With reference to the historical relations between the State and local au-
thorities, a general characteristic of the Slovenian system was that the State
could not transfer any duties within its jurisdiction to municipalities without
their prior consent. This was changed with the aforementioned constitutional
amendments in 2006: as a result, it is now possible for the State, for reasons of
rationality and economy of management, to vest some of its powers in munici-
palities and provinces without their prior consent, if the State provides financial
resources for this purpose.
3.3. Parliamentary legislation
As ordained by the Constitution, local administration is regulated by several

pieces of legislation, principally the Local Government Act of 1993, which has
since been modified and amended several times. Other important legal rules are
the Municipalities Finance Act and the Local Elections Act. In addition, many
other laws deal in part with local authorities.
In comparison with corresponding legislation in other States, the Slovenian
legislation on local self-government is rather general, leaving considerable
582
room for local regulations, particularly by municipal by-laws, ordinances and

statutes. In principle, this may be beneficial for the strengthening of local self-
government; on the other hand, the introduction of the new system in 1993
gave rise to problems which have resulted in very frequent changes and amend-
ments to the legislation in this area, particularly to the Local Government Act.
In its general provisions, this statute defines some of the fundamental regula-
tory bases. In these provisions a municipality is defined as the basic unit of
local self-government, which independently regulates and manages its affairs
and discharges the duties vested in it by law. Municipalities may independ-
ently decide to join into regions and other, broader self-governing local com-
munities. Under a provision of the Law, regions may regulate and manage lo-
cal affairs of wider importance which exceed the capacity of municipalities. In
addition to these forms of connection, local self-governing communities may
also cooperate in other, more flexible forms of collaboration, without formally
uniting themselves.
With respect to financing of local communities, it must be emphasised that
the Local Government Act contemplates that these communities will be com-
pletely self-financing, a provision that is exceedingly important for their au-
tonomy. On the other hand, the Law also considers it a duty of the State to en-
sure additional necessary resources for those municipalities which, due to their
poorer economic development, are not themselves able to guarantee the execu-
tion of all their duties.
The Constitution makes no reference to the bodies of a municipality and
leaves this question completely to the Local Government Act. In a special
chapter, the statute regulates the bodies of municipalities, determining them to
be the municipal council, the mayor and the supervisory board. In addition to
these basic municipal bodies, some special laws also determine others, includ-
ing the municipal election commission. An important principle for the demo-
cratic management of local communities, upheld by the Local Government
Act, is that of indirect democracy, by which the citizens of these local com-
munities decide on matters of local self-government through the municipal
councils, composed of members elected by free and secret ballot and on the
basis of the universal, equal and direct suffrage. However, the statute also
provides that members of local communities may decide on matters of local
self-government directly at their assemblies, by referendum and through pub-
lic initiative.
3.4. Administrative regulation
In the constitutional system of Slovenia, administrative regulations have no

higher legal rank than local regulations and may only implement the statutes.
All regulations from the areas of local competences are important for the func-
tioning of municipalities.
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3.5. The Capital City
Art. 5 of the Constitution of Slovenia designates Ljubljana as the nation’s

capital. The status of the capital, however, is also regulated by law—specifi-
cally, by the Law on the Capital of the Republic of Slovenia, adopted in 2003.
As befitting Ljubljana’s role as the capital, all the most important State au-
thorities, foreign embassies and other foreign and international institutions are
located there.
Apart from its constitutional designation as the Slovenian capital, Ljubljana
has no other special status in the system of local government. That is to say, it
is a municipality—more precisely, an urban municipality—, which in the Slov-
enian system of local government has very few special powers compared to
other municipalities. Thus, Ljubljana has no distinctive administrative and le-
gal status of its own.
In principle, as well, the relationship between the capital city and the State
is the same as that between the State and other municipalities. Some particu-
larities of the relationship between the State and the capital city are regulated
by the aforementioned Law on the Capital of the Republic of Slovenia. This
law determines that Ljubljana, as the capital city, is the administrative centre of
Slovenia. Furthermore, it determines the forms and methods of cooperation
between the capital city’s authorities and those of the State in order to guarantee
the conditions for the work of State authorities and those of embassies, etc., as
well as the specific tasks of a capital city.

AUTHORITIES
According to the Constitution of the Republic of Slovenia (Art. 140), the

municipality is responsible for local affairs, which it can regulate autonomous-
ly and which affect only its residents. Since the Constitution does not further
define which local affairs are within the competence of a municipality, this has
been done by the Local Government Act and also in part by other laws. The Act
provides that a municipality independently performs local affair of public im-
portance, which are determined by law or by a general rule of the municipality
(municipal statute). In addition to these tasks, municipalities also perform indi-
vidual tasks by State jurisdiction, i.e., they are also vested with certain State
competences.
The basic needs of the population, that the municipality is obligated to ad-
dress, include in particular:
– primary education
– primary health care
584
– provision of essential utilities

– municipal services
– postal and banking services
– library facilities
– premises for local administration
– public transportation
– space maintenance and use.
In addition to the duties of municipalities, those holding a «city» status (ur-
ban municipalities) must specifically:
– regulate local public transportation;
– regulate public spaces and the construction of facilities;
– administer a public network of primary, secondary, vocational and higher
education institutions and libraries in their territories;
– ensure secondary public health service in their territories, including the
administration of hospitals;
– provide a network of civil services; establish telecommunications centres
and specialized information documentation centres, as well as local radio
and television stations and press;
– support cultural activities (theatres, museums, archives) and sport and rec-
reation facilities;
– manage all housing matters in accordance with the Housing Law, includ-
ing maintenance of registers and contracts, rent control, issuance of con-
struction permits and building inspections.
Moreover, a municipality must guarantee the performance of locally-deter-
mined public services and those determined by law. The latter are, specifically, to:
– provide or develop of all kinds of social services and activities;
– regulate and maintain water and power supply facilities;
– protect air, soil, and water resources;
– protect against noise pollution;
– provide for waste collection and waste disposal in urban municipalities;
– preserve natural and cultural monuments of local interest;
– provide public transportation (where feasible);
– construct and maintain local roads and public spaces;
– manage community assets.
Local public services may be delivered by means of the following ways: (a)
local bodies for social public services; (b) administrative offices; (c) public
companies; (d) granting concessions to private persons; and (e) joint companies
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by investing public money into the activities of private organizations that pro-
vide certain public services.
The tasks of a municipality can be divided into the regulation of social rela-
tions in the municipality (hence its normative competence) and the implemen-
tation of regulations, whether its own or those of the State. In substance, the
tasks of a municipality are, above all, to manage municipal property, ensure
peace and order and ensure the performance of communal, social and environ-
mental tasks. The Local Government Act defines municipal tasks only in a ge-
neric way, thus allowing for their definition by other laws from particular fields,
as well.
Within the framework of its tasks, a municipality may possess, acquire and
use freely all kinds of property; it may establish and manage public companies
and, within public finance, determine its own budget.
The State may delegate to municipalities the exercise of individual tasks
within its jurisdiction. It must provide the local bodies with sufficient financial
resources for the exercise of these vested or delegated tasks.
5.1. Local authorities
Under the former socialist system, the structure of local government was
very specific, since municipalities were very large and their organisation fol-
lowed that of the Republic of Slovenia. Thus, it consisted of a tri-cameral as-
sembly, elected on the basis of the so-called delegate system, and an executive
council. Also, various forms of direct participation were provided for, includ-
ing at the constitutional level, and used in practice for different local decisions;
nevertheless, the nature of the political system did not allow their use on the
basis of political pluralism.
Since 1993, local democracy in Slovenia has been based on political repre-
sentation and direct citizen participation. Political representation is the rule,
while different forms of direct democracy are used under the conditions deter-
mined by the Local Government Act and by the regulations adopted by mu-
nicipal councils. Specifically, the present Constitution does not provide for the
forms of the institutional organisation of local democracy. Direct citizen par-
ticipation does not in any case replace the powers of an elected council: citizens
may only confirm or reject the decisions previously adopted by a council.
The main bodies of the municipality are the municipal council, the mayor
and the supervisory board. The municipal council is the highest decision-mak-
ing body. The mayor, a directly-elected official, represents and acts on behalf
of the municipality and presides over the municipal or town council. The super-
586
visory committee supervises the disposal of municipal property and public ex-
penditures.
The municipal council is the representative body of a municipality. In ac-
cordance with modern democratic practices, it is elected directly by the resi-
dents of the municipality for a period of four years on the basis of universal and
equal suffrage by direct and secret ballot. The Italian and Hungarian national
communities (minorities) are directly represented in representative bodies of
local self-government, as are the members of the Romany community.
In local elections, the systems of both plurality voting (relative majority)
and proportional representation are used. The former method is used in smaller
municipalities having no more than 12 members on the municipal council,
while the latter is used in larger municipalities. In the case of plurality voting,
the municipality is usually divided into single-member electoral units. Mem-
bers of the municipal council who represent the Hungarian or Italian minorities
and those who represent the Gypsy ethnic community are, in any case, elected
by plurality voting. When proportional representation is used, the voters elect
representatives from the lists of candidates, having also the right of preference
voting. The allocation of seats is based on the d’Hondt method.
Political parties play an important role in local elections, since they nominate
candidates for members of municipal councils and candidates for mayors. Main-
ly national parties participate in local elections, but in some parts of Slovenia the
role of local parties is quite important. In any case, candidates may also be pro-
posed by citizens’ groups of citizens. Voting has traditionally been optional be-
cause it has been understood as a citizen right and not as a duty. The turnout at
local elections is lower than at general elections, and its rate has been falling.
As of 2002, foreigners are entitled to vote in local elections, while as of
2004, according to the rules of the E.U., citizens of its member states are enti-
tled to vote for the members of a municipal council and to be elected to the
same. Voters who are absent on election day may vote before this date at spe-
cial polling stations. Voters who are under temporary care in senior citizens’
homes and those undergoing treatment in hospitals may vote by post.
As the fundamental political rights of a citizen, the right to vote and the right
to be elected are protected by legal means. The transparency of local elections
is controlled primarily by the municipal electoral commission and secondarily
by the Administrative Court. Every candidate or his representative and every
voter has the right to object the irregularities of the work of electoral committee
conducting the voting to the municipal electoral commission and to appeal
against its decision to the Municipal Council and ultimately to the Administra-
tive Court. In both procedures there is also the final recourse of filing a com-
plaint before the Constitutional Court.
As previously stated, the municipal council is the highest body of decision-
making on all matters within the rights and duties of the municipality. In addi-
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tion, it decides on other matters provided by law and statute. The most impor-
tant powers of the municipal council are stipulated in the Local Government
Act. Along with the tasks arising from this Law, the statute of the municipality
may, on the principle of municipal autonomy, also define other tasks, all in ac-
cordance with the Constitution and the Law.
Within the framework of the rights and duties of the municipality, the mu-
nicipal council has, above all, regulatory, electoral and supervisory competenc-
es, as well as decision-making authority on concrete matters. Within the scope
of its regulatory powers, the municipal council approves the general rules of the
municipality, such as the municipal statute, decrees and other municipal acts,
spatial and other plans of development and the budget and its final accounting.
Municipalities as autonomous bodies have the right to regulate with their own
legal acts their internal organisation and social relations, in accordance with the
Constitution and the Law. The self-regulating position of a municipality in the
constitutional system is also manifested through the fact that the rules of mu-
nicipalities are not subordinated to regulations by State bodies, but only to the
Constitution and laws.
In addition to the municipal council, which adopts fundamental decisions in
the municipality, another municipal body is the mayor, who, like the municipal
council is elected directly. The mayor’s main duties are to direct the municipal
administration and to represent the municipality. Furthermore, the mayor is the
guardian of the legal functioning of the municipal government. In addition to
the mayor, a municipality may have one or more deputy mayors, depending
upon the size of the municipality and its needs. The deputy mayor assists the
mayor at his work and substitutes him, as required.
In Slovenia, the mayor is elected directly by the residents of the municipal-
ity for a four-year term of office. The candidate who receives the majority of
votes cast is elected mayor. But as it seldom happens that a candidate receives
the required majority in the first round of voting, the second round may be held
between the two candidates who have received the greatest number of votes.
At the national level, the main problem is that the electoral legislation al-
lows the compatibility of the office of mayor with that of a member of Parlia-
ment (the National Assembly). The result is that approximately one-third of the
members of Parliament are simultaneously mayors. This fact has a very great
impact on their work in Parliament and on their relations with the voters, in
particular with their respective municipal constituencies, in that they often rep-
resent local rather than national interests.
5.2. Citizen participation
The forms of citizen participation are prescribed by law, but the municipal
councils are free to establish certain other forms of popular consultation. In ad-
588
dition, the Local Government Act regulating the municipal council’s method of
functioning provides for the municipal council to establish a number of com-
missions and committees, the members of which the council may appoint from
among either its own members and/or other citizens. The main task of such a
body is to advise the municipal council.
The legal regulation of direct democracy makes to a great extent possible
citizens’ participation in municipal decision-making. The forms of direct citi-
zen participation are the citizens’ assembly, the referendum, people’s initia-
tives and popular consultations. It must be stated, however, that in practice di-
rect democracy does not often take place, due especially to the lack of influence
of citizens’ organisations on the functioning of local authorities and to the real
predominance of political parties in local politics. The popular assembly as a
form of popular consultation is a carry-over from the former socialist system
and has been preserved in the present system of local government. It can be
held in all municipalities. A popular assembly may be called for the entire mu-
nicipality or for a part of its territory. Individual matters may be presented be-
fore the citizens, who then may form standpoints, give proposals, initiatives
and opinions, and make decisions at municipal meetings in accordance with the
law or with the municipal statute.
The popular initiative is the form of citizen participation by which the peo-
ple request the municipal council or other municipal bodies to adopt a decision
or regulation within the latter’s power, or by which they demand the nullifica-
tion of some decision or regulation previously adopted by the municipal coun-
cil. A popular initiative in a municipality must be held by no less than five
percent of the voters in the municipality. The body to which is the initiative is
presented (the municipal council or other municipal bodies) is obliged to make
a decision on the request within the period determined by the statute of the mu-
nicipality, but in any case within a maximum of three months.
According to the Local Government Act, a referendum is facultative, i.e., it
must not be used for any particular local decision. In any case, the referendum
may be called only upon a decision previously adopted by the local council,
thus confirming or rejecting this decision. Matters excluded from referendums
are those related to the budget, municipal taxation and other fiscal contribu-
tions. The referendum may be called by the municipal council at its discretion,
or at the proposal of the mayor or a member of the municipal council, but the
municipal council must call it on the demand of no less than five percent of
voters in the municipality. The referendum must also be called if so determined
by law or by the autonomous municipal regulations. A referendum decision is
adopted by the majority of voters taking part in the referendum.
The municipal council is bound by a decision adopted through referendum
until the end of its term of office. The manner of conducting the election cam-
paign is not regulated by law, and the election campaign must not be financed
by local authorities. Otherwise, municipalities are entirely autonomous in con-
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ducting the referendum procedure; nevertheless, in case of complaints concern-

ing the legality of the procedure, each voter has the right to make an objection
to the Central State Electoral Commission and the right to appeal against its
decision to the Administrative Court. The referendum may also be a form of
popular consultation. According to the Local Government Act, a municipal
council may call a consultative referendum on some issues within its powers to
find out the will or attitude of voters concerning the particular issue. A con-
sultative referendum may be held before or after a municipal council’s decision
has been adopted.
The Local Government Act also guarantees the right of citizens to a popular
initiative. A minimum of five percent of voters may demand that the municipal
council adopt some decision or regulation within its power or demand the nullifi-
cation of a decision or regulation previously adopted by the municipal council.
The longstanding tradition of inter-municipal cooperation existed in Slove-

nia before local government reform was introduced in 1993. Even in socialist
times there was close cooperation among municipalities. It was a practice not
only within the nation but also in conjunction with municipalities in other coun-
tries. Inter-municipal cooperation takes place especially in the areas of regional
development, public services, investments, culture, etc., as well as among joint
administrative bodies, in the case of smaller municipalities. In addition, ap-
proximately 70% of municipalities cooperate with those in other countries, es-
pecially in neighbouring countries, for which cooperative agreements do not
need to be authorised.
The Local Government Act provides for some forms of inter-municipal co-
operation. Thus, municipalities may establish single-purpose or multi-purpose
interest associations (interesne zveze), with the objective of jointly regulating
and performing individual administrative duties and of implementing common
development and investment programmes. The association has a council com-
posed of mayors of founding municipalities and representatives from their mu-
nicipal councils.
Two or more municipalities may also establish an association (združenje) in
order to represent and promote local self-government and to coordinate and
jointly ensure their interests. The association represents interests of its mem-
bers before national bodies when the latter draft or adopt laws or regulations
stipulating the tasks, rights, obligations and liabilities of municipalities, or
when regulations interfere with interests of the members in any other way. The
association may acquire representational capacity. The Government determines
the criteria and procedure for the composition of a permanent mission of repre-
sentative associations of municipalities for cooperation with national bodies, as
590
well as the composition of their delegations at international organisations of

self-governing local communities and other international organisations. Fund-
ing for delegations of the representative associations within bodies of the Coun-
cil of Europe and the EU is provided by the national budget.
6. HUMAN RESOURCES
The municipal administration is made up of one or more departments of the

established municipal administration, based on the mayor’s proposal and
through a general act adopted by the municipal council, which also determines
its composition and sphere of work. The head of the administration is the may-
or; the administration’s work is managed directly by the municipal secretary,
who is appointed and recalled by the mayor via public competition. The same
holds true for other employees of the administrative body.
Local officials are recruited by local authorities, as per the procedures laid
down by the Civil Servants Act, i.e., under the same conditions as State officials.
The municipal secretary has a mandate of five years; others can be employed on
a permanent or temporary contract basis. This takes the form of a special labour
law contract, since the municipal secretary and the employees of the administra-
tion are civil servants, not functionaries. There is a special Ministry of Public
Administration, which is responsible for the improvement of the efficiency and
good practice of public administration, including at the local level.
The performance of the administrative body is subject to supervision by the
mayor. Additionally, State bodies (i.e., the Government and the ministries) su-
pervise the legality, appropriateness and quality of the work of municipal bod-
ies and of matters vested in them by the State.
According to the Slovene Constitution, municipalities are financed from

their own resources (Art. 142). Only those municipalities that are unable to
provide completely for the performance of their duties due to insufficient eco-
nomic development are assured additional funding by the State, in accordance
with principles and criteria provided by law. Local governments also have the
right to borrow. The Constitution also provides that each municipality shall
raise its own revenue.
The Local Government Act determines that local matters of public interest
are to be financed by a municipality from its own sources, from State funds and
from loans. A municipality’s own resources are:
– taxes and other obligatory contributions
– revenues from municipal assets.
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The revenues which the municipality may use for the financing local matters
of public interest proceed from taxes on:
– property
– inheritances and donations
– gambling profits
– sale of immovable property
– other taxes, as provided by law.
The municipality may levy these taxes under the conditions determined by law.
The Local Government Act also determines the State’s obligations to mu-
nicipalities. According to the Law, municipalities are guaranteed financial
equalisation by the State in the amount determined by a special statute. In addi-
tion, the State must provide each municipality with additional funds for certain
municipal duties and functions, specifically for the:
– performance of urgent municipal duties and functions
– performance of State-delegated duties and functions
– co-financing of local matters of public interest when of special importance
to municipal development
– adjustment with investment input, in accordance with the programme in
municipalities with the lowest standard of municipal services.
The quantity of the above funding allocated to an individual municipality
must be determined primarily by the number of inhabitants and population den-
sity of the municipality, its geographic characteristics and the status of the mu-
nicipality with respect to the special interests of the State in its development. In
practice, the most important revenue sources of local budgets (approximately
42% of total local revenue) are the shared personal income tax and the tax on
fixed property (approximately 9% of the total). The Law on the Financing of
Municipalities determines the detailed regulation of methods and criteria for
the financing of municipalities.
On the whole, municipal budgets are funded mainly by State budget trans-
fers (in 2006, 79.3%), compared with their own tax revenues (6.8%) and other
revenues, including other obligatory contributions, such as fees and duties
(13.9%). Local expenditure represents only approximately 11% of total public
expenditure in Slovenia. Local budgets therefore depend heavily on State trans-
fers and financial equalisation.
The assets which can be owned by local authorities in Slovenia can be clas-
sified into several types: on the one hand, movable and realty assets; on the
other hand, tangible and non tangible.
592
In Slovenia, local authorities are entitled to own assets but they have the same
form of property as the State. Nevertheless, there are no different forms of prop-
erty. The property of all subjects (public or private) belongs to the same form of
property and has the same legal status. Consequently, there are no special rules
concerning the municipal property. Thus, there is not any legal difference be-
tween the legal status of the State property and that of the municipal property.
In general, all forms of goods and assets are regulated by the Law on Prop-
erty. Thus, the property of public-law bodies (such as the State or a municipal-
ity) has in principle the same legal status as the property of private persons. The
difference lies only in the purpose of the property, i.e., the property of public
legal persons is used solely and exclusively for public benefit. Moreover, there
is a special regulation for the acquisition, management and disposition of State
or municipal property. There are different limitations determined by several
statutes adopted by Parliament, which regulate different aspects of the use of
property owned by the State or by municipalities.
Local authorities may acquire property in the same way as other public and
private persons. Expropriation may be employed for the benefit of the local
authority if it is necessary for public benefit. In addition, local authorities have
the right of pre-emption when a cultural monument or building is about to be
conveyed.
As explained before, municipal assets have the same legal status as those of
other legal organisations. Thus, in principle, they can be the object of all kinds
of legal transactions. However, a municipality may alienate its property under
legally-determined conditions in accordance with the purpose of the assets in
question. Municipal assets can be expropriated by the central Government if
this is done for public benefit. Any expropriation must be followed by an equi-
table compensation, as guaranteed by the Constitution.
The sale of individual parts of municipal assets is permitted against payment
of their full value, which becomes a part of the municipal assets unless it is
donated for humanitarian, educational, scientific or research purposes or for
other purposes of this kind. The decision to convey parts of the assets can be
adopted only by the municipal council. The mayor, however, may be author-
ised to decide on the acquisition or disposal of movable property and on the
acquisition of immovable property by municipal statute or by a decree of the
municipal council.
Finally, it should be pointed that municipalities are obliged by law to state
the value of its assets on the corresponding balance sheet.
Although, in principle, local authorities function in an autonomous way,

the bodies of local communities (as those of the State), are obliged to act in
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conformity with the Law, something which is supervised by State authorities.

It is possible, however, that, in addition to its original local competences, a
municipality also performs duties vested in it by the State. It is understandable
that in the latter case the control by State authorities be more rigorous than in
the former.
State authorities’ control over the activity of local bodies is in general regu-
lated by the Constitution (Art. 144). This article provides that, in reference to
matters which are within the original competence of local authorities, State
authorities supervise only the legality of the work of local bodies. In other mat-
ters, the State also supervises the suitability and expertise of the activities of
local authorities.
The Local Government Act provides that the control over the functioning of
local authorities is performed by the Government and the ministries. If a minis-
try believes that a municipal rule is unconstitutional or illegal, it must notify the
body of the municipality that adopted the rule and propose appropriate solu-
tions. If the local authority does not correct such rule, the ministry must propose
to the Government to initiate the proceedings before the Constitutional Court
for the assessment of the compliance of the controversial rule with the Consti-
tution or with the law.
Decrees by which a municipality regulates State-delegated matters must be
presented immediately or, at the latest, simultaneously with their publication
(for which the mayor is responsible) to the central Government or to the com-
petent minister. The Government or the competent minister may suspend the
execution of decrees which are considered unlawful and submit them to the
Constitutional Court for judicial review.
Moreover, and under the Local Government Act, the mayor may withhold
the publication of a regulation adopted by the municipal council if he considers
that it is unconstitutional or illegal. If the municipal council does not change
such act, the mayor may file a request to the Constitutional Court for the assess-
ment of the constitutionality or the legality of the said act.
On the other hand, the Parliament (the National Assembly), on the proposal
of the Government, may dissolve a municipal council and dismiss a mayor.
Before issuing an order for the dissolution of the municipal council or for the
dismissal of the mayor, the National Assembly must issue a warning to the
party in question.
A municipal council may be dissolved if:
– it adopts acts that are in conflict with the Constitution or the law;
– it fails to implement the decisions passed by competent courts;
– it does not carry out the tasks with which it is legally charged;
– it adopts decisions which violate laws in any other way and, despite being
warned by ministries, it fails to rectify its illegal action;
594
– in the year for which the budget has not yet been adopted, the municipal
council fails to adopt the said budget for its retroactive entrance into force;
and/or
– despite having been convened three times in six months, the municipal
council fails to hold a session.
A mayor may be dismissed if he does not implement the legal decisions is-
sued by the municipal council or any other legal tasks, or if he adopts decisions
which violate laws and, despite being warned by ministries, fails to rectify the
illegal action.
In the event of the dissolution of a municipal council, the National Assem-
bly may, at the proposal of the Government, also remove the mayor if it deter-
mines that the reasons mentioned above are applicable. In such a case, the Na-
tional Assembly must appoint a temporary manager. It must also call early
elections for the municipal council and, in the event of the simultaneous re-
moval of the mayor, elections to fill that position, as well.
Municipalities are entitled to request the Constitutional Court to decide on

the compliance of any statute or administrative regulation with the Constitution
and with ratified international treaties. Such a request may be submitted by
representative bodies of municipalities, if the rights of the municipality in ques-
tion have been violated. In addition, according to the Constitution, the Consti-
tutional Court alone may determine whether local authorities’ regulations com-
ply with not only the Constitution but also the law. A municipality may also
request the administrative court to decide on the legality of specific acts of the
State.
Under the Local Government Act, before the National Assembly adopts a
law affecting the benefits and interests of local authorities, it is obliged to con-
sult their opinion on that law. Thus, without the preliminary opinion of local
authorities, such a law may not be adopted. This procedure is strictly respected
in practice.
The upper house of the Slovene Parliament, called the National Council,
has an important role related to the interests of local authorities, since it repre-
sents different social interests, including theirs. Local interests make up the
strongest representation in this body: out of 40 members of the National Coun-
cil, 22 are elected by municipal councils and therefore represent local authori-
ties and their interests and opinions. The role of the National Council, how-
ever, is limited due to its much weaker position compared to that of the
National Assembly.
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Slovenia has seven representatives on the EU Committee of Regions. The

members from Slovenia and their substitutes are appointed from among the
mayors and members of municipal councils. Municipalities are quite active in
the implementation of E.U. structural funds.
On the other hand, municipalities have a certain impact on national policy
through the Government and the second chamber of Parliament, in which rep-
resentatives of local authorities are dominant.
12. ADDITIONAL SOURCES OF INFORMATION: TO KNOW MORE
Landmark Constitutional Court rulings on local governments

12.1.
– U-I-13/94, 21. 1. 1994 (Official Gazette of the Republic of Slovenia, no.

6/94): Review of constitutionality of the Local Government Act.
45/94): Review of constitutionality of the Local Government Act, and le-
gality of the Ordinance on determination of a referendum area for the es-
tablishment of Koper Municipality.
– U-I-118/94, 1. 12. 1994, unpublished (Constitutional Court of Slovenia,
http://odlocitve.us-rs.si/usrs/us-odl.nsf/o/3A8237ACEAC0C898C
1257172002807ED): Review of constitutionality of the Local Govern-
ment Act.
67/98 and OdlUS VII, 157): Review of constitutionality of Founding of
Municipalities and Determining their Regions Act.
59/99 and OdlUS VIII, 146): Review of constitutionality and legality of
the Financing of Municipalities Act and other related statutes.
84/2010): Review of constitutionality of the Local Government Act.
101/2007 and OdlUS XVI, 74): Review of constitutionality of the Financ-
ing of Municipalities Act.
72/2010 and no. 99/2010): Review of constitutionality of several statutes:
The Foundation of Municipalities and Determining their Regions Act; the
Act on Calling Regular Elections to Municipal Councils and the Regular
Elections of Mayors Act.
596
Grad, Franc: Lokalna demokracija (organizacija in volitve) (Local democracy

(organisation and elections)), Ljubljana 1998 (summary in English)
Grad, Franc.: Les debats constitutionnels sur la regionalisation en Slovenie,
L’Annuaire des collectivite locales, 2002.
Šmidovnik, J.: Lokalna samouprava, Ljubljana, 1995.
Vlaj, Stane: The Introduction of Local Self-government in the Republic of Slov-
enia: Current Situation and Outlook. Ljubljana, 1995.
Vlaj, Stane: Lokalna samouprava, Ljubljana, 2006.
Government Office for Local Self-Government and Regional Policy Munici-

palities in Slovenia: http://www.svlr.gov.si/fileadmin/svlsrp.gov.si/pageu-
ploads/lok-sam05/angl/munici/munici01.htm
Local Finances: http://www.svlr.gov.si/fileadmin/svlsrp.gov.si/pageuploads/
lok-sam05/angl/munici/locfin.htm
Legislation: Law on Local Self-government: http://www.svlr.gov.si/en/legisla-
tion/legislation_on_local_self_government/
597
Chapter 25:
LOCAL GOVERNMENT IN SPAIN
Angel-Manuel MORENO
As in many other European countries, local government has been in Spain a

key feature in the political evolution of the Nation. Municipalities can be traced
back to the Roman domination (as the word «municipality» itself comes from
Latin), at times when the country was called Hispania. During the Middle
Ages, several towns and cities were granted charters and privileges by the King,
which received different names (cartas de población, franquicias, fueros, etc.).
Other towns and cities had their own by-laws, (ordenanzas), respected by the
Crown. During the centuries of absolutism (XV-XVIII), those privileges (fuer-
os) were progressively abrogated by the Monarchy, but still remained respected
in some parts of the country.1 In the modern sense, though, one can only speak
of «local government law» or of «local autonomy» from the XIXth century,
when the constitutional period started.2 During the XIXth and the XXth centu-
ries, Spain went through a convulsed history. Different constitutions were ap-
proved (1812, 1834, 1837, 1845, 1869, 1876, 1931 and 1978). Several turbu-
lent political crises took place, including cruel civil wars, endless military
putsches and two «soft» revolutions, each one leading to the establishment of a
Republic in the country (in 1873-74 and 1931-1939).
Within this scenario, it is easy to understand that both the historical evolu-
tion of local self-government and the law on the matter have followed an un-
easy and erratic pattern. During the XIXth and XXth centuries, different pieces
of legislation on local government were approved, each one responding to di-
verging political orientations and constitutional grounds. However, a basic al-
1
For an account of the historical evolution of towns and cities in Spain, see: Orduña Re-
bollo, E.: Historia del municipalismo español. Iustel, 2005.
2
For an explanation of the legal and institutional evolution of municipalities during the XIXth
century, see: INAP: El municipio constitucional, 2003.
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angel-manuel moreno
ternative can be identified within this legislative evolution, as two vigorous and
conflicting trends opposed: on the one hand, the conservative model (the domi-
nant one from a temporal point of view), inspired by a centralist approach to
local government, which favoured a system of control of cities and provinces
from the State bureaucracy and departments; and on the other hand, the «pro-
gressive» (progresista) approach, that was supportive of a greater autonomy for
the local bodies.
As an example of this «pendular» historical evolution, it is important to
point that, during the XIXth century, local elections were alternatively intro-
duced and eliminated, according to the dominant political trend of the moment.
When they were called, the right to vote was restricted to the wealthy or quali-
fied people (sufragio censitario), and the first «general» and «open» local elec-
tions did not take place until 1869. Even on that occasion, only men had the
right to cast ballots. The vote for women in local elections was only recognised
(in a partial way) in 1924,3 and in a general way in the 1931 Constitution.4 Thus,
during the period 1812-1975, different general rules on local government were
promulgated in 1812/1823, 1840, 1845 (inspired by a centralist model), 1870
(following a progressive model) 1877 (centralist model), 1924 («estatuto mu-
nicipal de Calvo Sotelo» following a progressive model, but largely unimple-
mented), and 1935 (progressive and democratic model).
The regime of General Franco (1936-1975), reinstated a centralist model of
local government. Three main pieces of legislation on local administration were
approved in 1945/1950, 1953/1955 and 1975, which lasted in force until the re-
introduction of Democracy. A system of direct control over local government
was performed by the national government, both at the central level (Ministries,
Ministerios) and at the territorial one, by means of the «civil governor» (Gober-
nador civil, a political delegate of the central Executive in the province). Mayors
(in municipalities) and Presidents of the councils (in the provinces), were directly
appointed by the civil governor in each Province. Free and direct elections were
suppressed at all levels (local, regional and national). At the local level, though,
some forms of quasi-electoral procedures were maintained by the abovemen-
tioned legislation. In fact, local elections took place at different times, but the
right to vote was restricted to male «heads of family», who could only designate
a portion of local council members (the so-called «family» representatives).
After the death of General Franco, a broad and comprehensive political
process, conducted personally by the King, known as the «political transition»
(la transición política), took place in 1975-1978 and eventually allowed the
3
The Act of 8 March, 1924 (estatuto de Calvo Sotelo) recognised the right to vote for all
women from the age of 23, as long as they were emancipated from parental or marital control and
they had «a house open in the town», that is, that they had a household of their own. The provi-
sions of this act on local democracy were, though, never put into practice.
4
At local level, the provisions on universal suffrage were put into practice for the first time
in the local elections of 1933.
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local government in spain
recuperation of Democracy and the promulgation of a modern Constitution

(voted by the people on 6 December, 1978). This Constitution represents a
clear and radical shift in the historical evolution of local government in Spain:
it clearly recognises local autonomy and regulates the essential nutshell of some
types of local authorities (see point 3, below). For what concerns democratic
procedures, the Constitution reinstated direct, open and free elections for all
level of territorial government.5 In 1985, a national statute was enacted (the
«7/85» Act), which still forms the backbone or «framework» legislation for all
contemporary Spanish Law on local government. Several amendments have
taken place afterwards. At different times during the last four years, legislative
initiatives to change the system have been announced by the central govern-
ment, but did not come to an end.6
One streaking feature of this process of local government decentralisation is
that it was accomplished at the same time as regional devolution.7 The politi-
cians of the time, though, were capable to frame these two processes in a sepa-
rate way, although both radical transformations had many points of contact,
whose actual definition remained the source of political controversy. The com-
bined result of this two-fold political decentralisation process is that, at present,
Spain presents a territorial structure which is totally different to the one that
was in force in the seventies, and there is a neat division among three different
layers of government: local government, regional government (Comunidades
Autónomas) and the national level.
In the last decade, local government has continued to trigger many debates
and political discussions. The hottest issues are the following ones: (1) the ex-
cessive number of municipal units (more than 8100, many of them having less
than 1000 inhabitants, see point 2, below). Amalgamation of neighbouring
towns has frequently been suggested as a solution, but never tried seriously; (2)
which is the right role and profile of the province as a local government unit,
placed between the municipal level and the regions (Comunidades Autónomas);
(3) in the context of devolution, the allocation of powers between the State and
the Regions in the field of local government is still a matter of political and
constitutional discussion, as the 2010 ruling of the Constitutional Court on the
Statute of Autonomy for Catalonia has showed (see below, point 3); and (4) the
5
At the local level, universal and open elections took place after the promulgation of the
Constitution, in 1979.
6
In 2010, the competent department of the national Executive announced the preparation of
a draft statute on local government (Ley de Gobierno Local). It remains to be seen whether the
expected planning and the present political situation allows this document to go through the leg-
islative decision-making procedure.
7
Political decentralisation led to the establishment of seventeen «Comunidades Autóno-
mas», or regions. They enjoy a large degree of administrative and political autonomy. In this
contribution we use the word «region» instead of «comunidades autónomas» because this is an
English word that is easily recognisable. Comunidades Autónomas are not analysed in this con-
tribution, which focuses on local government stricto sensu.
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angel-manuel moreno
structural, unsatisfactory situation of local government finances and resources

is a recurrent topic. Moreover, it has been aggravated by the economic crisis
and the explosion of the construction and housing «bubble» (2007-2010) ,
which was a key source of funding for municipalities (see, below, point 7).
From the point of view of their historical, political and social importance, in
Spain there are three main types of local authorities (Entidades Locales, in
Spanish): Municipalities (municipios), Provinces (provincias) and Islands
(islas).8 Municipalities make up the «first tier» of local government. In a col-
loquial way, municipalities are seldmon characterised as towns (pueblos) or
cities (ciudades) according to their size and population, but this difference
(apart from being imprecise) has no legal implications whatsoever (taking apart
the case of the formal «big cities», see below, point 5.2.3). Provinces and Is-
lands form the «second tier» of local government.
The State, Basic Act on Local government (hereinafter, «the 7/85 Act»)9
identifies these bodies as «territorial local entities» (entidales locales territori-
ales). They enjoy something called «institutional guarantee» (garantía
institucional),10 which means, grosso modo, that they are recognised and pro-
tected by the Constitution as a integral part of the territorial structure of the
Country. This constitutional characterisation of those local government units
implies two important consequences: (a) their existence is guaranteed by the
Constitution, which means that neither the national Parliament nor the regional
ones can pass legislation providing for their suppression;11 and (b) the core le-
gal regime of these bodies may be regulated by the State, not by the regions
(Comunidades Autónomas).12 The regions may «develop» or approve rules and
regulations on specific aspects of local entities, as long as they respect the
«ground» or «basic» rules laid down by the State (see point 3.2.1). This situa-
tion means that the core system of local government –at least in the domain of
these «essential» local entities- is more or less uniform in the whole kingdom
(especially in the case of municipalities), but the regions may introduce varia-
8
The country has two archipelagos, the Canary Islands and the Balearic Islands. Each major
island is considered to be a distinct local authority.
9
Ley 7/1985, de 2 de abril, reguladora de las bases de régimen local.
10
This concept has been taken from German public law. The Spanish Constitutional Court
adopted this concept in one of its earliest rulings involving local autonomy: ruling 32/1981, of 28
July 1981.
11
We talk here about the suppression of the «abstract category» of Municipalities, Provinces
or Islands, not about the elimination or suppression of one town or city, which is perfectly possible.
12
This rule is only partially true in the case of the Islands, whose governing bodies are
mainly regulated by regional law (for instance, Act of the Parliament of the Balearic Islands No.
8/2000, of 27 October). In fact, the 7/85 Act only contains a couple of substantive provisions on
these local authorities.
602
tions and special provisions. Therefore, the Spanish regulation on this type of
local administration is not monolithic: it is heterogeneous, but respects a com-
mon, basic regulation.
Apart from Municipalities, Provinces and Islands, there are other local gov-
ernment bodies, which will not be analysed in depth in this contribution. As op-
posed to the «essential» local bodies, these units share some different features:
– They are not explicitly mentioned by the Constitution;
– Their name and legal status may be entirely regulated by the Regions, as
State legislation only provides for broad general principles in the matter;
– They do not enjoy the «institutional guarantee» that protects Municipali-
ties, Provinces and Islands: the regional legislature may decide at any mo-
ment to create or to terminate those types of bodies;
– They keep up relations mainly with the regional Administration, not with
the State departments and agencies;
– Their territory may be bigger or smaller than the territory of a municipal-
ity. They may have an infra-municipal scope, like the «parishes» (parro-
quias), to be found in some parts of Spain, or they may embrace a supra-
municipal territory in a way similar to an anglosaxon «county». In this
latter category, different types of entities may be mentioned, like the «dis-
tricts» (distritos) or the «comarcas».
– They can be established by the regional legislative (example: comarcas or
counties) or by the initiative of other local entities: for instance, the asso-
ciations of Municipalities (Mancomunidades, see below, point 4.1.2).
Therefore, the legal regime on these types of local government units is high-
ly heterogeneous, as there may exist up to seventeen different legal schemes on
the matter, one for each region.13
The following table provides aggregated figures for the most important
types of local government in the country14:
Municipios Provincias Islas Mancomunidades Comarcas Infra-

(Municipalities) (Provinces) (Islands) (Municipal associations) (counties) municipal units
8,114 50 11 1,024 81 3,722
An important and critical point in the Spanish system of local government is

the average population living in cities and towns (pueblos y ciudades), that is,
13
This regulatory variety prevents us from providing substantial attention to these bodies in
this contribution, for evident reasons of lack of space.
14
These data have been taken from the National Register of Local Government Units, which
is run by the Ministry of Territorial Policy and Public Administration (2010 edition).
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angel-manuel moreno
in Municipalities (Municipios). This information is also helpful to understand

other features of the system and its current problems:
Less More
100- 1,001- 2,001- 5,001- 10,001- 20,001- 50,001-
Inhabitants than than
1,000 2,000 5,000 10,000 20,000 50,000 100,000
100 100,000
Number of
municipalities 1,074 3,789 928 1,019 554 356 249 83 62
This simple information shows one of the most important and recurrent
problems of local government in Spain: the number of municipalities is very
high. There is a huge proportion of little towns, with a small number of inhabit-
ants. This situation, which has a purely historical justification (based on the
inception of the French model of legal regulation of human settlements) trig-
gers different problems: many municipalities are incapable of providing the
essential public services that are obligatory under the law (see, below, point 4)
since they lack the necessary resources to do so (not only economic, but also
technical and personnel resources).
On the other hand, Municipalities are not distributed in an even or balanced
way across the nation. Some Regions have a high number of municipalities
(usually, small and underpopulated towns), while other Regions have a smaller
figure due to its extension or to other patterns of human settlement. The follow-
ing table, with selected data concerning seven representative Regions, will help
understanding the situation:
Region Extension Total number of

Total inhabitants
(Comunidad Autónoma) (in km2) municipalities
Castilla y León 93,892 2,563,521 2,248
Galicia 29,564 2,796,089 315
La Rioja 5,027 321,702 174
Madrid 8,022 6,386,932 179
Cantabria 5,106 589,235 102
Cataluña 30,025 7,475,420 946
Andalucía 87,581 8,303,923 770
3.1. Local autonomy: definition and legal elements
The cornerstone element underlying the whole system of local government in

Spain is the idea of local «self-government» or «autonomy» (in Spanish, au-
604
tonomía local). Broadly described, this concept means that the local administra-
tion units (as identified supra) have the right to take decisions for the running of
local interests and services and for the well-being of their citizens, without politi-
cal interference from Regions or from the State agencies and departments.15 «Lo-
cal autonomy» involves the idea that local authorities are fully empowered to
frame policies, programs and measures to solve the local problems and to carry
out long-term planning of different aspects of community life (land use and zon-
ing, culture, transportation, environmental protection, transit, etc.). Beyond this
vague idea, however, the concept of «local autonomy» is difficult to encapsulate
in a precise and detailed legal way. To do so, different legal elements must be
taken into consideration: (a) the Spanish Constitution; (b) the European Charter
of local self-government (ECLSG); (c) the case-law of the Spanish Constitu-
tional court; (d) the laws and regulations approved by the national and regional
Parliaments and executives; (e) the case-law of the Supreme Court.
To begin with, constitutional provisions on local government must be con-
sidered. Thus, the Spanish Constitution of 1978 explicitly recognises local self-
government (autonomía local) and devotes several provisions to it: section 137
identifies the basic local government units that are present in the country, and
recognises them as constituent parts of the State.16 Separate provisions lay
down the constitutional foundations for the municipalities (section 140)17 and
for the provinces (section 141).18 Finally, local finances are dealt with by sec-
tion 142.19
15
For a comprehensive analysis of the concept of «local autonomy», see: Fanlo Loras, A.:
Fundamentos constitucionales de la autonomía local, Madrid, 1991; Font i Llovet, T: Gobierno
local y Estado autonómico, Barcelona, 2008; García de Enterría, E.: Problemas actuales del
régimen local, Madrid, 2007; Parejo Alfonso, L.: Garantía institucional y autonomías locales,
Madrid, 1981.
16
Section 137: «The State is territorially organized into municipalities, provinces and the
Self-governing Communities that may be constituted. All these bodies shall enjoy self-govern-
ment for the management of their respective interests»
17
Section 140: «The Constitution guarantees the autonomy of municipalities. These shall
enjoy full legal personality. Their government and administration shall be vested in their Town
Councils, consisting of Mayors and councillors. Councillors shall be elected by residents of the
municipality by universal, equal, free, direct and secret suffrage, in the manner provided for by
the law. The Mayors shall be elected by the councillors or by the residents. The law shall lay
down the terms under which an open council of all residents may proceed».
18
Section 141: «1.- The province is a local entity, with its own legal personality, arising
from the grouping of municipalities, and a territorial division designed to carry out the activities
of the State. Any alteration of provincial boundaries must be approved by the Cortes Generales
in an organic act. 2.- The government and autonomous administration of the provinces shall be
entrusted to Provincial Councils (Diputaciones) or other Corporations that must be representa-
tive in character. 3.- Other groups of municipalities other than provinces may be formed. 4.- In
the archipelagos, each island shall also have its own administration in the form of Cabildo or
Insular Council.»
19
Section 142: «Local treasuries must have sufficient funds available in order to perform the
tasks assigned by law to the respective Corporations, and shall mainly be financed by their own
taxation as well as by their share of State taxes and those of Self-governing Communities».
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Secondly, Spain has signed and ratified the European Charter on Local Self
government (ECLSG).20 In the field of international treaties, Spain is a country
with a moderate monist model and tradition. Therefore, the Charter, after the
deposit of the instrument of ratification and the full publication of its text in
the national Official Journal (Boletín Oficial del Estado, commonly known as
«BOE»)21 became «the law of the land» and enjoys the legal protection and
specific normative strength of any other international treaty, under section 93
of the Constitution. At the time of ratification of the ECLSG, Spain made only
one declaration stating that it does not consider itself bound by art. 3 par. 2 of
the Charter, which declares that the system of direct election should be imple-
mented in all local authorities falling within the scope of the Charter. This
declaration reflected the view of Spain not to extend the direct election princi-
ple to the councils of the Provinces (diputaciones), whose members are not
elected directly by the voters, but in an indirect way (see infra, point 5.3.1).
The Charter is an important rule in the Spanish system of local government.
From a historical point of view, it inspired the national basic legislation on the
matter. On the other hand, it has frequently been used as an interpretative au-
thority by the courts. Nevertheless, the fact that most of its provisions do not
have a self-executing nature prevents the charter to be applied directly in
courtrooms.22
Thirdly, the case-law of the Supreme Court and, especially, that of the Con-
stitutional Court is an essential element of Spanish local government law. As
the Constitution merely states general formulae as regards local autonomy (and
does not provide a definition of it) one can perfectly support the proposition
that the Constitutional Court is the ultimate recipient of the idea of local au-
tonomy that is embodied in the Spanish Carta Magna. Since 1981, the Court
has issued key rulings in the field, and has built, stone by stone, the actual con-
stitutional concept of local autonomy (see the rulings listed at point 12.1, infra).
Some of the most important rulings in this area are:
– Ruling («STC») 4/1981, of 2 February 1981: local autonomy is a general
principle of the territorial organisation of the state. This implies, among other
elements, the right of the local government units to participate y the govern-
ance and decision-making on matters that affect the local citizens. The organs
of the said units must have powers and competences. On the contrary, the
legislator (either national or regional) can not minimise or reduce this au-
tonomous domain of decision making below a recognisable level.
– Ruling 35/1982, of 14 June 1982: local government autonomy is construed
as the capacity of local bodies to formulate their own public policies.
20
Instrument of ratification of 20 January 1988.
21
The ECLSG was published in the «BOE» on 24 February 1989.
22
Scholars, of course, have paid due attention to the Charter and to its significance in the
whole Spanish legal scheme on local government. See, among others: Lasagabaster Herrarte, I.:
La Carta Europea de la Autonomía Local, Madrid, 2007.
606
– STC 240/2006, of 20 July: Local self-government is identified as a guar-

antee, involving a constitutional protection of the minimum content of
local decision-making.
Last, but not least, attention must be paid of course to the flesh-and-bones
legislation, which together with their implementing regulations, does define the
nitty-gritty of local government and local autonomy in Spain. This issue is ad-
dressed in the next point.
3.2. Main domestic legislation on local government
Before identifying the most important laws and regulations in the field of lo-
cal government, it is essential to clarify a preliminary question: in Spain, legisla-
tive powers in the domain of «local government» (administración local) are
shared between the State (el Estado) and the regions (Comunidades Autónomas).
This issue is depicted in Spain by saying that local government is a «dual-front»
matter (régimen bifronte). The main reason for this situation of shared regula-
tory responsibilities is the fact that the system stemming from the 1978 Constitu-
tion frames Spain as a country whose territorial structure stands between a «fed-
eral» and a «unitary/centralist» model. The regulatory powers of the regions are
very wide, and the national legislature can only set the basic rules governing
Municipalities and Provinces. Islands and other types of local authorities (as
presented at point 2, supra) can be regulated extensively by the regional parlia-
ments. Regions, thus, enjoy a wide domain of political discretion to regulate lo-
cal government, but they must respect the «baseline» of the basic legislation of
the State. The details of the dividing line for this allocation of regulatory powers
between the State and the Regions is far to be clear, and has often been the sub-
ject of political discussion, as well as of constitutional adjudication.23
National legislation may be divided into statutes24 and administrative regu-
lations. Among the statutes are worth mentioning the key Act 7/1985, of April
2nd, 1985, on the basic provisions on local government25; «Organic» Act
5/1985, of June 19th, concerning the general electoral system (it governs also
local elections); Royal legislative-decree 2/2004, of March 5th, 2004, concern-
ing local finances, and Royal legislative-decree 781/1986, of April 18th, 1986
(consolidated set of legal provisions on local government). The most important
23
The last episode of the Constitutional case-law on this issue is represented by its ruling
31/2010, of 28 June 2010, on the constitutionality of the Statute of Autonomy of Catalonia, as
amended.
24
In Spain, the Executive may pass, under certain conditions, legal rules having the same
binding force as an Act of Parliament.
25
This legal rule is the most important one in the domain of local government, its very «legal
backbone». It has been amended several times. The most important recent amended was per-
formed by the Act of 16 December 2003.
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administrative regulations26 are: Royal decree of 17 June 1955, on the public

services provided by local government; Royal decree 2568/1986, of November
28th, on the organization and functioning of local authorities; Royal decree
1372/1986, of June 13th, 1986, on the property and assets of local authorities;
and Royal decree 1690/1986, of July 11th, on the local population and the terri-
tory of the local authorities.
As regards regional legislation, for reasons of space we cannot provide an ex-
haustive list of the different laws and regulations on local government that have
been enacted by the seventeen Spanish regions. After more than three decades of
devolution, nowadays all regions have a comprehensive set of legislation about
local authorities, headed by a general law on the subject. A selection of some rep-
resentative regional statutes should include the following ones: (a) Catalonia: Leg-
islative decree 2/2003, of 28 April 2003; (b) Galicia: Act of 22 July 1997; (c)
Aragón: Act of 9 April 1999; (d) Madrid: Act 2/2003, of 11 March 2003; (e) An-
dalucía: Act 5/2010, of 11 June 2010; (e) Valencia: Act 8/2010, of 23 June 2010.

AUTHORITIES
All local authorities have the legal nature of bodies governed by public law
(entes de derecho público). Therefore, their decision-making processes, their
activities and the actions they take are mainly governed by regular Administra-
tive Law. In this capacity, local authorities do carry out a huge array of activi-
ties to satisfy the general needs of their citizens and to advance the well-being
of the local community. From a technical point of view, though, a difference
can be drawn between three different legal concepts:
a) Legal powers enjoyed by the local authorities as governmental bodies (in
Spanish public law: potestades administrativas);
b) Local services provided by those authorities (in Spanish: servicios públi-
cos locales);
c) Competences, in the narrow sense (competencias).
Each one is considered separately below, for the two basic types of local
authorities: municipalities and provinces. The analysis is limited to the legal
scheme stemming from national, basic legislation for reasons of space, but it is
important to note that regional statutes and administrative regulations on local
government may attribute additional powers and services to «their» local bod-
ies. Therefore, the picture on local services and competences is far from being
uniform throughout the kingdom.
26
In Spain, the State Executive (Gobierno de la Nación) has a strong regulatory power to
approve implementing regulations («reglamentos») which precise and detail the general provi-
sions of parliamentary legislation.
608
4.1. Municipalities
4.1.1. Legal powers
Municipalities (as well as provinces and islands), enjoy several powers and
prerogatives which are usual for public, governmental bodies:
– They enjoy the power of eminent domain, that is, they can expropriate
private property for different justified purposes, for instance for the sake
of urban policies or for the construction of public infrastructures.
– They have rulemaking capacity. The rules approved by Municipalities
(ordenanzas municipales) regulate important aspects of human social be-
haviour, and can establish administrative sanctions for those individuals
and firms who contravene them.27
– They can impose taxes, levies and special contributions, with due respect
of the requirements laid down by national or regional legislation.
– They can approve comprehensive and detailed plans in many fields, such
as land use, environmental protection and transports.
– They have the power to impose administrative sanctions and fines on the
wrongdoers.
– They have the capacity to determine their internal structure, with due re-
spect to national and regional laws and regulations (see, below, point 5).
4.1.2. Public local services
The 7/85 Act (Art. 26) establishes a set of minimum, mandatory public serv-
ices, which must be provided by all municipalities, in accordance with their
legal population. Thus:
(a) All municipalities must provide the following services: public light-
ning, cemetery, waste collection, street cleaning, supply of drinking wa-
ter; road access to the municipality; law and order; sewer system; pave-
ment of the streets and control of food and drinks sold in town.
(b) Municipalities having more than 5,000 inhabitants must, in addition,
provide the following public services: public park; public library; mar-
ketplace and waste treatment.
(c) Municipalities with more than 20,000 inhabitants must, on top of the
previous ones, provide the following public services: Civil protection;
social services; prevention and extinction of fires; public sport facilities.
27
On this regulatory power of Municipalities, see: Embid Irujo, A: La potestad reglamen-
taria de las entidades locales. Iustel, 2010.
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(d) Municipalities having more than 50,000 inhabitants must, in addition,

provide the services of urban public transportation and environmental
protection.
On top of this list of «mandatory» services, municipalities may of course
provide (within their financial and operational capabilities) any other «com-
plementary» service or activity which is not awarded on an exclusive basis to
other levels of government, and which satisfies the needs or the well-being of
the local community, especially in the domains of culture, environmental pro-
tection, education, gender equality, housing and health protection (Art. 28,
7/85 Act).
Municipalities are free to choose the way in which they deliver their
services: either using their own means and resources (gestion directa) o by
having recourse to contracts with private companies, following the rules of
public procurement. They may also set up local autonomous bodies (organ-
ismos autónomos locales) or even establish local public companies (em-
presa pública local) which, externally, will act like any other private firm
and will be governed by commercial law. One municipality may be the only
shareholder, but different shareholders combinations are usual: several mu-
nicipalities, municipalities and private investors, etc. The usual domains
where local companies are established are urban development and urban
services, economic development, environmental services and cultural ac-
tivities.28
When it comes to satisfying the array of public, local services, inter-munic-
ipal cooperation plays a key role. The basic form of cooperation is by forming
an association of municipalities, called in Spain «Mancomunidad de Municipi-
os». As indicate above (see, point 2), currently there are more than 1000 such
Mancomunidades in the kingdom. These local authorities regroup municipali-
ties from one or more provinces. With this device, municipalities share and
pool their resources, so that the «Mancomunidad» is the organisation that actu-
ally provides a given service in all the associated cities and towns.
These associations are considered by the Law as genuine local authorities by
themselves, with their own legal personality (distinct from the associated mu-
nicipalities), assets and personnel. They are brought into life by an agreement
of the interested municipalities, following a decision taken by a majority of the
respective local councils. The intervening municipalities also agree the by-
laws, organisation and institutional matters of the Mancomunidad. Although
municipal associations may be established for the provision of any of the sev-
eral local services, they are most frequent in the domain of environmental pro-
tection, which involves several different services: depuration of residual wa-
28
For a general overview of the different forms and organisational techniques for the deliv-
ery of local services, see: García Rubio, F.: La organización administrativa de las fórmulas de
gestión directa de los servicios públicos locales. La Ley, 2011.
610
ters; provision of potable water; collection of municipal waste; construction

and running of environmental infrastructures for the treatment of waste, like
landfills, etc. Other associative structures include the «consortium» (consorcio)
which regroups local authorities and other governmental bodies (regional de-
partments, universities, etc.).
Apart from associative structures, it should be stressed that many munici-
palities (especially the small and medium-sized ones) receive an intensive tech-
nical and economic assistance from the provinces, without which the provision
of local services would be virtually impossible. As a final remark in the domain
of local services, it has to be noted that municipalities may ask the Region to be
exempted from the provision of some mandatory public services, when provid-
ing such services is very hard or even impossible, for technical or economic
reasons.
4.1.3. Competences
Identifying the actual competences of local authorities units in Spain is not

an easy task, since there is no systematic regulation or codification thereof. In
reality, State legislation (Act 7/85, section 25) does not precise which are
those competences. It rather identifies «matters» (materias) in which local
government bodies must have competences, those matters being considered
to be those pertaining to the interest of the local government. Among those
matters stand the following ones: public safety, street crime; transit of vehi-
cles and pedestrians; civil protection, fire prevention and extinction; land use
and urban development; housing; environmental protection; slaughterhouses,
marketplaces, fairs, consumer protection; primary health care; cemeteries and
funeral homes; social services; delivery of drinking water, cleaning of streets
and public places, sewers, etc.; transportation; cultural and sport activities,
tourism.
The competences of local authorities are not identified by the laws and reg-
ulations on local government, but by sectoral legislation: they are supposed to
be established by the national or the regional Parliaments, each time they enact
statutes dealing with the above referred «matters». Let us put the example of
zoning, land use and urban policy. As stated above, this domain is a «matter»,
in which municipalities must have «competences». But if one would like to
know which are the actual competences of Spanish municipalities in this do-
main, she should check eighteen sets of laws and regulations dealing with land
use law: the national legislation and the seventeen different statutes and regula-
tions enacted by the regions on this matter. There is, then, a multiplying factor
in this arena, with the consequent fragmentation and lack of uniformity of com-
petences. Moreover, this diversity makes possible that municipalities in Region
A might have different, or more competences on a given matter than munici-
palities in Region B.
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4.2. Competences and services of the provinces
The Province is the traditional second-tier type of local government unit in

Spain, and also a territorial division for the provision of State services, a feature
which is here irrelevant. Although the concept of the province as a supra-mu-
nicipal territory is very old in the country (going back to the roman provinciae)
and some parts of the national territory had a neat and recognisable provincial
division for centuries (for instance, in the Basque country), the current division
of the kingdom in provinces was established in 1833. Nowadays, and after the
devolution process (1979-1983) several provinces were transformed in Re-
gions. Therefore, those «one-province Regions» have superseded and absorbed
the competences and activities of the original province.
The most important and foremost feature of the province as a local govern-
ment unit is that it was incepted to ensure that municipal public services were
delivered by towns and cities in an efficient and integral manner, in all the ter-
ritory of the province. It is, thus, supposed to provide assistance and help to
municipalities in discharging their services, duties and activities. Besides, there
is also a «provincial» dimension of social life, and even a «provincial» identity
felt by many citizens (especially in some parts of the country) which may equal-
ize or even be stronger that the «regional» identity, namely in those regions
who are «new» from a historical point of view (Castilla-La Mancha, Extrema-
dura), and where the provincial division is a traditional feature or is deeply
rooted in the collective psychology (Basque Country). There are, then, «provin-
cial» interests which are distinct from the «municipal» ones.
The competences and services of the provinces are discharged by their own
governing bodies (diputaciones provinciales, see below). In this domain, the
national legislation is not as detailed and exhaustive as it is when it deals with
municipalities. Therefore, the role, services and responsibilities of the prov-
inces are mainly regulated by regional legislation.29
However, national legislation establishes a set of minimum competences to
be discharged by the provinces:
(a) coordinating the provision of municipal services, in order to ensure that
those service are duly provided, and in an integrated way;
(b) providing technical, economic and legal assistance and cooperation to
municipalities, especially to small towns and cities30;
29
In the case of the Basque country, the three historical provinces do enjoy a very large do-
main of powers and competences, much larger than the regular «provinces». They even have
powers in taxation and fiscal matters (each province has it own fiscal system, separate from the
national system), which are even of higher degree and importance than those of the region to
which they belong.
30
For instance, since most small municipalities lack the adequate personnel and operational
capability to collect their own taxes, they usually asks the Provincial government (Diputación
612
(c) providing public services having a provincial31 or supra-municipal di-

mension32;
(d) fostering and encouraging the social and economic development and
planning of the territory of the province;
(e) managing and enhancing the general interests of the province (eco-
nomic, cultural, urban, environmental, heritage, etc), as a separate do-
main from the municipal interests.
5.1. General remarks
In Spain, the organisation of local authorities is determined by up to four

different types of legal rules:
(a) the key provisions of the Constitution on this matter33;
(b) the basic provisions of State legislation in the matter, as well as the im-
plementing regulations approved by the national Executive;
(c) the provisions of regional legislation in the matter, as well as the imple-
menting legislation approved by the regional Executives;
(d) the organisational by-laws (reglamento orgánico) approved by munici-
palities and provinces, which may respect the abovementioned rules
basic provisions of State legislation in the matter, as well as the imple-
menting legislation approved by the national Executive.
In this chapter, we will limit our analysis to first tier (municipal) authorities
(cities and towns). A broad reference to the provinces (second-tier units) will be
also provided.
Provincial) to do so. The province collects the local taxes and keeps an agreed percentage as a
service fee. Another usual cooperation is the domain of land use and zoning activity (building
permits), where the province provides for an Architect and other qualified civil servants, who
check the legality and opportunity of building permits applications, etc.
31
Among other services, it is worth mentioning that they run the Provincial Official Gazette
(Boletín oficial de la provincial), which is an important official journal where all municipal regu-
lations, ordinances and plans must be published. The territorial State offices also publish their
decisions in that journal.
32
Historically, provinces have provided a large number of supramunicipal, provincial
services: provincial museums, libraries, hospitals, bullfight rings, roads, marketplaces, etc.
Also, many important public infrastructures belonged to the Provinces: the provincial hospi-
tal, the provincial museum, the provincial library, the provincial orphanage, etc. Many of
these infrastructures have been absorbed by the regions (for example in the domain of
health).
33
See Sections 140 (on municipal organisation) and 141 (on provincial organisation) of the
Spanish Constitution, reproduced in footnotes at point 3.1, supra.
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5.2. Basic organisation of municipalities, under the national legislation
5.2.1. Common organisation
In municipalities, the most important deliberative body is the Council (Pleno

del ayuntamiento). The members of the council (Concejales) are directly elect-
ed by the citizens of Spanish and other nationalities34 every four years, in the
framework of the general local elections (the last local elections in Spain took
place in May, 2011).35 The number of councillors36 and the electoral procedures
are regulated by the General Electoral Act (Ley Electoral General).
For what concerns the «executive» organs of municipalities, these are the
mayor (alcalde), the executive committee (Junta de Gobierno), and the vice-
mayors (tenientes de alcalde). The mayor is the political leader of the city and
its visible head. Contrary to what happens in other European countries, in Spain
the Mayor is not elected directly by the citizens: he is appointed by the council
and may be removed by it, following a motion of censorship (moción de cen-
sura). This feature, though, should not lead to the wrong assumption that the
mayor is a subordinate political figure. All the contrary: in Spain, the mayor is
by far the most important and key political official in the city, beyond legal
formalism. He is usually the real political leader in the city or town and the only
politician who is really accountable. «Simple» or «regular» Council members
remain largely unknown and ignored by the people at large, by «the man in the
street», and have a limited weight in the electoral decisions of the voters. The
mayor is always (or almost) the running head of the local section of the political
party, something which gives him an extra «auctoritas» and a real domain of
political decision and leadership at the local level. What is more, in most cases
the local leader of each political party has a decisive importance in the decision
of whose name will be written down in the electoral ballot, and in which posi-
tion on the list she will be. This is a determining factor in properly understand-
ing the political «de facto» pre-eminence of the mayor.
This important feature should be added to the fact that the Spanish electoral
system (based on the so called «D’Hondt rule») provides usually stable majori-
ties (since small parties are under-represented by that system). The combined
force of these two factors (over-representation of large parties, plus political
«de facto» leadership of the local running candidate) produces the result that, in
a big portion of Spanish local authorities, the Mayor is the decisive political
ruler, and the council is in fact a subordinate organ, dominated by his will and
34
Apart from the nationals from the other 26 member states of the European Union, the right
to vote belongs also to nationals coming from the following countries: Norway, Ecuador, New
Zealand, Colombia, Chile, Perú, Paraguay, Iceland, Bolivia and Cabo verde.
35
For an overview of the results, see: http://elecciones.mir.es/locales2011/.
36
The number of Municipal Council members depends on the legal population of the city or town:
from 3 (in the case of small towns with less than 100 inhabitants) to 41 in Barcelona, or 67 in Madrid.
614
by his priorities. The situation is very paradoxical: a «parliamentarist» system

produces, at the end of the day, a «presidentialist» working system, with the
mayor as the prevailing and dominant figure.
The mayor has the most important executive functions: he is the legal repre-
sentative of the municipality and the director of its human resources; he deter-
mines the political agenda of the council, he is the chief of the police force, he
is in charge of the treasury and cash&bank services, etc. As a rule in the Span-
ish system of local self -government, the mayor is at the same time the president
of the council: it calls for its meetings and chairs them, establishes their agen-
das, oversees the discussions, etc. The vice-mayors (tenientes de alcaldes) take
the place of the mayor in the case of travels, long absences, physical problems,
etc. They are freely appointed and removed by the mayor, and they must be
members of the Council. Finally, individual council members (concejales del-
egados) may receive broad delegations and decisional powers on specific sec-
tors of the local life from the Mayor. As a result, they take the responsibility for
running a concrete department of the local administration
On the other hand, the municipal steering committee (Junta de Gobierno Lo-
cal) does exist in all local bodies having more than 5,000 inhabitants, and in those
who, below that figure, decide to establish it by means of a City council decision.
This multi-member organ is composed by local council members,37 who are freely
appointed by the mayor for this additional position, and may be removed by him.
The number of steering committee members must not exceed one third of the total
number of members of the municipal council. The steering committee is basically
an organ for the assistance to the mayor, and has numerous executive compe-
tences, for instance: approval of the draft budget, and of draft municipal regula-
tions and ordinances; management of contracts, direction of the economic man-
agement of the city; the power to sanction and to impose fines for the infringements
of municipal regulations and ordinances; issuing permits and licenses, etc.
5.2.2. Other special organisational models
The municipal organisation in «big cities».- As indicated above, in 2003 the

7/85 Act was amended (Act of 16 December 2003)38 in order to introduce spe-
cific provisions for some cities, which are referred as «big cities» (grandes
ciudades). This special status is an optional one, and can be voluntarily attained
by large municipalities complying with certain requisites (for instance, if they
have more than 250.000 inhabitants). Apart from having, like in the general
system, a Mayor and a local Council, «big cities» present specific organisa-
tional features which, for reasons of space, can only be mentioned here.
37
In «big cities» (see below, point 5.2.3) the Mayor may appoint as a member of the steering
committee someone who is not an elected member of the council.
38
Ley 57/2003, de 16 de diciembre de medidas para la modernización del gobierno local.
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angel-manuel moreno
Small towns. At the other extreme of municipalities stand those very small
towns (having less than 100 inhabitants). They may organise themselves ac-
cording to specific rules (a regime called Concejo Abierto, or «open council»).
The key point is that there is certainly a mayor, but decisions are taken by
means of assemblies (there is not a «city council» as such»), which all citizens
may attend and where they may express their positions.
Ceuta and Melilla. These two cities situated in the northern coast of Africa,
also enjoy a special regime, which stands in between a «true» local government
unit and an Autonomous Community. In fact, this cities, like the rest of the re-
gions, do have their own «estatuto de autonomía» (statute of autonomy) and
their legal name is that of «autonomous city» (Ciudad Autónoma).
Madrid and Barcelona. Since 1606, Madrid has permanently been the cap-
ital of Spain. Currently, the Spanish Constitution of 1978 simply recognises
this situation (article 5). However, the Constitution does not establish a specif-
ic, special or privileged regime for the city, since this matter must be handled
by a regular statute. The peculiar features of Madrid, not only as the capital of
the country but also the most populated and prominent city in the country, have
justified for years a special legal regime, which was highly demanded, but nev-
er concretised. In 2006 and after several political attempts, a specific regime
was eventually approved by means of a bespoke statute of the national Parlia-
ment: the Act 22/2006, of July the 4th 2006. This piece of legislation lays down
specific provisions for Madrid in the domain of institutional framework, ad-
ministrative structure, powers, competences of the mayor, etc, which can only
be briefly mentioned here.39 Barcelona, the second largest city in the kingdom
has also specific institutional and organisational features, laid down in Act
22/1998, of 29 December 1998, on the municipal charter of Barcelona, and Act
31/2010, of 3 August 2010, on the metropolitan area of Barcelona.
5.3. Basic organisation of the provinces
5.3.1. Common organisation
The provincial council (Diputación Provincial) is the representative body of

the province. It is composed of a chairman (presidente de la diputación) and of
members of the said provincial council (diputados provinciales, provincial dep-
uties), in a number which is proportional to the province’s population.40 Those
deputies are not directly elected by voters, but designated by the political par-
39
An analysis of this special legal regime of Madrid city, in: Parejo Alfonso, L. (dir.): Estu-
dios sobre la ley de capitalidad y de régimen especial de Madrid, Tirant lo blanch, 2006.
40
In provinces with less than 500,000 residents, the number of «deputies» is 25. This figure
increases in proportion with the number of residents: in provinces having more than 3,500,001
residents, the number of «deputies» is 51.
616
ties, among those persons who have been elected as city council members (con-
cejales) in the local elections, in any of the municipalities of the province.41
Thus, the same person may discharge at the same time two positions: the posi-
tion of mayor or member of the municipal council, and the position of «deputy»
or President of the provincial council. Proportional rules here apply, and usu-
ally the political party who has managed to obtain the highest number of city
council members (concejales) among the different municipalities of the prov-
ince, also get the Chairmanship of the Provincial Council.
The foremost executive organ of the Province is the president of the provin-
cial council, (Presidente de la Diputación Provincial), who is elected by the
Provincial Council and assisted by vice-presidents and by the executive com-
mittee (junta de gobierno). The latter is composed by the President and by a
number of members equal to one third of the legal number of deputies, and are
freely appointed and dismissed by the president. This body assists the President
in exercising his functions. As in the case of municipalities, individual provin-
cial deputies may receive delegations of decisional powers from the President,
to run specific departments or services of the provincial administration (public
works, personnel, etc.).
5.3.2. Special types of organisation
There are three special regimes for some provinces in Spain, which deserve
just a summary mention here: (a) In the Basque Country, the three constituent
provinces (territorios históricos) enjoy a specific regime, which is regulated by
regional law; (b) those provinces who transformed themselves in regions in the
period 1979-1983 (seven) do not have a «provincial» organisation as such, but
are completely structured as a regular region (comunidad autonóma); (c) In the
Canary Islands, the two constituent «provinces» do not have a truly «provincial
organisation» as such, since there the second tier type of local government is
the Island, with the governing body called «cabildos» (council of the island).
These bodies are also regulated by regional laws and regulations.
6. HUMAN RESOURCES
As a part of their autonomy, local authorities do have their own personnel,

and they have the power to recruit and to manage their own human resources.
41
When Spain ratified the ECLSG, it included a declaration saying that «this charter is ap-
plicable to the local administration bodies which are mentioned at sections 140 and 141 of the
Constitution, with the exception of a section 3, § 2 since the system of direct election should be
implemented in all local authorities included in the scope of the charter. This statement was ap-
plicable to local second-tier bodies such as provinces and islands.
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angel-manuel moreno
According to the data published by the Ministry of Territorial Policy and Public
Administration,42 currently there are roughly 658,000 public employees work-
ing at local government level (including all local authorities ), which represents
almost 24,5% of the total number of public employees in the Spanish public
administration. This share is even higher than the number of employees work-
ing at the national administration (only 22%).
From a legal point of view, local government personnel may be of two dif-
ferent kinds: civil servants (funcionarios) and contractual employees (personal
laboral). Civil servants are considered to be «administrative law» personnel,
enjoying a special legal status (in principle, they cannot be fired or made redun-
dant). The recruitment of this type of employees, their rights, services, duties
and responsibilities are regulated by Administrative law. On the contrary, con-
tractual employees are governed by «private» employment law. Their salaries
and working conditions are regulated in a different way: they sign individual
contracts and they do bargain and negotiate collective agreements with the cor-
responding local authority (usually the big ones). In overall quantitative terms,
the number of contractual employees is much higher than that of «civil serv-
ants» in Spanish local authorities. This is especially clear in small towns and
villages, where almost all employees are usually «contractual» personnel. Only
medium and large-scale cities and provinces have their own groups and ranks
of civil servants (cuerpos y escalas de funcionarios). In terms of personnel
management, each local authority is supposed to work like an independent
«company», with its own personnel.
Notwithstanding this general situation, it is important to stress that, in Spain,
there is a special type of local employees, who have traditionally been recruited
and managed by the national government. They are called «civil servants hav-
ing a state qualification» or being «statewide qualified» (funcionarios con ha-
bilitación de carácter estatal). These local civil servants are the only ones en-
joying «professional mobility» across the Spanish territory. That is, during
their career they may obtain positions in different local authorities across the
country, by participating in «ad hoc» staffing procedures. The status of this
special type of civil servants is also regulated by the State (the essential rules
and elements) and by the regions.
The creation of this type of civil servants goes back to the Local Govern-
ment Act of 1924 (see, supra, point 1). For decades, these civil servants were
recruited by the national executive. Regularly, nationwide competitive proce-
dures were called by the competent central Department, which allowed those
civil servants to change and get positions in other local authority, in a structured
way which formed a professional «career» (carrera administrativa). Key regu-
lations on this special group of civil servants were approved by the State: Roy-
al Decree 1174/1987, of 17 September 1987, and Royal Decree 1732/1994, of
42
Boletín estadístico del personal al servicio de las Administraciones públicas, 2010.
618
29 July 1994. Currently, and after a 2007 national statute on Civil Service (Act
7/2007), this type of personnel is not recruited by the State administration any-
more, but by the regions, as a consequence of devolution. The new regulatory
scheme has slightly changed the name of this group of civil servants: funcion-
arios con habilitación de carácter estatal, where the word «national» has been
replaced by «state».
The role of these special civil servants is essential in every local authority,43
because they discharge (in an exclusive way) important legal and managerial
functions:
(a) that of Secretary (Secretario) of the local authority bureaucracy: in this
capacity, they provide legal advice to the different local bodies and or-
gans; they keep the records of all decisions of the mayor and the discus-
sions at the Town Hall meetings; they are the natural attorneys-at-law of
the local authority; they are in charge of the overall local administration,
etc. Local government secretaries also play a key role in the organisa-
tion and logistics in all electoral processes and they are delegates of the
electoral administration.
(b) That of accountant and comptroller (tesorero, interventor) of the local
treasury and of the local budget, revenues and expenses. The Account-
ant-comptroller is in charge of checking that the expenses made by the
local authority do comply with substantive and procedural requirements
established by the law.
In small towns, this «statewide qualified» civil servants discharge functions
(a) and (b) simultaneously. In medium and large-size authorities, each function
is discharged by different civil servants, who follow «specialised» professional
tracks and promotion echelons. According to official data, in 2010 there were
5.584 of these «statewide qualified» civil servants working in the whole king-
dom. This number only represents 0,8% of the total number of local govern-
ment employees.
These civil servants are supposed to ensure that local authorities measures
and decisions follow the procedural and substantive standards established by the
Law and, although they are «statewide qualified» they cannot be considered
stricto sensu as State employees, but genuine local government civil servants.
They are not paid neither by the State nor by the region, but by each local author-
ity where they work. An important issue to be considered in this contribution is
whether the very existence of this group of civil servants (traditionally recruited
and staffed by the State) and, especially, the control that they perform over the
activities of the local authorities, is consistent not only with the essential content
43
This type of civil servants is not exclusive of Spain, and may be found in other European
countries which follow the «Napoleonic» model of local administration (for instance, France,
Belgium, Italy, etc.).
619
angel-manuel moreno
of «local autonomy», but also with the principles of devolution. These questions
were strongly discussed in the eighties, but currently they are settled: on the one
hand, the Constitutional Court has clarified that the existence of these civil serv-
ants is compatible with the notion of self-government. Therefore, it has upheld
the existence and exclusive functions of these civil servants.44
7.1. Introduction
The domain of financial resources is certainly one of the most critical issues
in local self-government in every country. Without financial resources, local
autonomy is largely more theoretical than actual. In Spain, this field is so im-
portant that the Constitution contains specific provisions stressing the principle
of financial sufficiency, by establishing that: «Local treasuries must have suf-
ficient funds available in order to perform the tasks assigned by law to the re-
spective Corporations, and shall mainly be financed by their own taxation as
well as by their share of State taxes and those of Self-governing Communities»
(Section 142). Besides these specific constitutional provisions, Act 2/2004, of
5 March, on local finances provides a comprehensive regulation of this matter.
As a rule, all decisions concerning the revenues and the distribution of resourc-
es are taken in an autonomous way by the local authority and must be decided in
the municipal budget, which must be approved by the plenary session of the Coun-
cil. Local authorities do approve their own budgets, without the need of a prior
approval by the regional or State agencies. However, for some budgetary opera-
tions local authorities require such approvals, for instance when the local entity
envisages having recourse to borrowing, above a given ceiling. As for expenditure,
it is also decided in an autonomous way.45 The local Comptroller (interventor)
takes care that the expenses comply with procedural and substantive legal require-
ments. The revenues of local authorities may come from different sources (own
taxes and fees, transfers, other sources), and they are summarily presented here.
7.2. Own revenue
«Own revenue» (recursos propios) include all the different types of income
generated by the activity of local authorities either of a fiscal or non fiscal na-
ture. Within this group we may distinguish between fiscal income (taxes,
44
The main ruling in this area are: ruling 214/1989 and ruling 25/1983, of 7 April 1983.
45
In 2009, the total expenditure of local authorities represented 13,6% of the total public
spending in the country, while regions were accountable for 35,6%, the State for 20,9% and So-
cial Security for 29,9%.
620
charges and fees) and non-fiscal income. As a measure of financial autonomy,

it should be stated that, according to information released by the national tax
administration, and corresponding to 2009 figures, own resources amount to
46,3% of the total income of municipalities and 21,7 in the case of provinces.46
(1) Taxes, charges and fees: As stated above (point 4.1.1), municipalities
enjoy taxing powers.47 In reality, municipalities cannot «create» or establish
freely those taxes (impuestos), but it is necessary a piece of legislation from the
state or the regional parliament, which establishes such tax. Municipalities may
decide to «set» or to «impose» the taxes created in the Law (namely, Act
2/2004) and, in addition, may regulate key aspects of such taxes. Municipalities
enjoy a large domain of regulatory discretion in the concretisation of those
taxes, since they (usually medium and large cities) approve specific regulations
for each type of local taxes, called «Ordenanzas fiscales». These rules contain
all the necessary legal and operational information for the organisation and the
collection of the tax. For instance, each municipal council determines the rate
of the local tax in its municipality, within a legal limit.
According to the Local Finances Act, municipal taxes are divided into «manda-
tory» and «optional» ones. Mandatory taxes are: (a) the tax on real estate, which is
the most important local tax; (b) the tax on motor vehicles; (c) the tax on eco-
nomic activities. Optional local taxes include the tax on constructions and installa-
tions and the tax on capital gains in urban areas. According to information released
by the national tax administration, and corresponding to 2009 figures, local taxes
amount to roughly 27% of the total income of municipalities.48 As stated above,
small towns lack the organisation and resources to collect their own taxes, so these
activities are performed by the tax collection service of the province.
On the other hand, local authorities may establish a number of charges and
fees (tasas, precios públicos) for the use of municipal or provincial properties
(sidewalks, squares, facilities and infrastructures), or for the provision of certain
services (for instance, depuration of residual waters, collection of waste, planning
application fees, use of local sport facilities, etc.). Finally, they can impose spe-
cial contributions (contribuciones especiales) for the financing of public works
(improvement of sidewalks and streets, etc.) payable by the beneficiary citizens.
(2) Other sources of own revenue: Besides the above mentioned sources of
revenues, municipalities get income from different sources:
(a)
Sanctions and fines. Municipalities may impose administrative sanctions
of different sort on individuals and firms, for the contravention of stat-
46
Ministerio de Economía y Hacienda: Haciendas locales en cifras. Avance 2009.
47
Provinces do not have «taxes», but they may establish a surcharge (recargo) on the mu-
nicipal tax on economic activities, plus they may collect charges and fees, and special contribu-
tions.
48
Ministerio de Economía y Hacienda: Haciendas locales en cifras. Avance 2009.
621
angel-manuel moreno
utes or the breach of local regulations and ordinances. The most impor-
tant ones are monetary fines. This source of income is especially relevant
in big cities (transit and parking fines, environmental fines, etc.).
(b)
Sale of property and assets. Within certain limits, municipalities may
sell the goods and assets that do not belong to the public domain (see
infra, point 8), such as old and abandoned facilities, shares of private
companies, etc.
(c)
The results of economic activities. Municipalities and provinces may car-
ry out economic activities, usually by means of public, local companies.
Special attention should be given to the income generated by urban ac-
tivities. During many years, this has been a key source of income for munici-
palities, especially for those located in areas that have experienced the devel-
opment and housing «boom» (touristic cities on the seaside, Madrid and
Barcelona, etc.). Municipal income derived from land development and con-
struction activities came basically from two sources: on the one hand, the
municipality participated in the land development process, by expropriating
rural land and selling it as a «buildable» or «suitable for development» land,
thus making a huge profit (difference between the compensation paid for ru-
ral land and the price obtained from selling the transformed «urban» slots to
the private market). Second, all development and building activities generat-
ed different sources of income for municipalities, in form of different taxes,
charges and fees that hit different aspects of the building process. When the
housing «bubble» suddenly exploded in 2008-9, the whole development and
housing sector got paralysed, and the income for municipalities sank dra-
matically, which aggravated the already chronic problem of financial insuf-
ficiency of municipalities.
7.3. Transfers
An important portion of municipal and provincial revenues still comes

from transfers awarded by the State (which grants 63, 5% of all transfers), and,
to a minor extent, by the regions.49 The main amount comes from a specific
transfer awarded by the national government, by which municipalities partici-
pate in the tax revenues of the State («partipación en los tributos del estado»).
This grant, which is not earmarked, is calculated according to a complex statu-
tory formula, which is reformulated over the years. In 2009, the total sum al-
located to this transfer amounted to 13,900 million €.50 In addition, munici-
palities over a certain population, or meeting certain requirements, receive a
49
According to the source mentioned at the previous footnote, transfers represent roughly
45% of the total revenues of the municipalities. This proportion is much higher in the case of
provinces: 67%.
50
Source: Min. de Economía y Hacienda: Haciendas locales en cifras. Avance 2009.
622
portion of the collection of some State taxes (cesión de recaudación de im-

puestos del Estado).51
Apart from that, there are different State and regional funds whose monies
are partially or totally aimed at financing or co-financing local works and serv-
ices (earmarked grants). Here, again, the most important funds are run by the
national government (for instance, the State fund for local investment, Fondo
estatal de inversión local).52 There are also a number of «ad hoc» cooperative
or multilateral arrangements for financing local authorities’ plans and projects,
either at the regional or state level, usually co-financed by the EU structural
funds. In this domain, it should be stressed that some EU funding schemes are
implemented by means of «Community initiatives» and specific programs that
are addressed directly to local authorities (like the «Urban» program). Spanish
local authorities have received substantial amounts of these programs over the
last two decades.
7.4. The public deficit and the debt of the local sector
As a general rule, local authorities may have recourse to the private sector,
to ask for loans and credits from the banking system, and they may also issue
bonds. The Local Finances Act establishes several prudential control mecha-
nisms on this source of financing, to prevent an excessive debt of the local sec-
tor, among others: (a) some statutory caps on the local debt: for short-term
loans, they cannot exceed 30% of the previous year operating revenue; (b)
Prior authorisation from the State of from the autonomous communities is re-
quired whenever annual repayments of long-term loans and credits exceeds
125% of the operating revenue in the previous year; (c) long-term credit opera-
tions are severely limited (art. 53, Local Finances Act).
In spite of these prudential rules, one critical aspect of current local authori-
ties’ finances is represented by the accumulated debt they drag along. The fact
is that local authorities have been increasing their debt with private contractors
and banks (short and long-term loans) over the last decades, due to expansive
budgetary policies linked to electoralism, excessive borrowing and the housing
bubble which dominated the Spanish economy during the last twenty years. In
the wake of the current economic and financial crisis, the figures have become
a matter of national political concern. Thus, by the end of 2009, the whole
group of local authorities accumulated a debt of 34,594 million €.53 This
51
See: arts. 111 et seq,, Local Finances Act.
52
Also noticeable was the State «Program E», which in 2010 transferred several million €
to municipalities, to fund public works with the aim of revitalizing the economy.
53
Source: Report of the Central Bank of June, 2010. The Central Bank of Spain (Banco de
España) carries out regular reports on the aggregated figures of the deficit of the different levels
of government in the country.
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angel-manuel moreno
amount represented 3,3% of Spain’s GDP. More than 80% of such figure
(28,770 millions) corresponded to municipalities and municipal associations,
while the rest (5,825 millions) corresponded to Provinces and Island councils.
Municipal companies accumulated a debt of 7,885 million €. In the first quar-
ter of 2011, the figures were even worse. The total accumulated debt of Spanish
local authorities amounted to 37,352 million €, which represented an increase
of 3,2% over previous figures.54
This situation has triggered the enactment of different rules. For instance, a
2007 statute on budgetary stability55 introduced provisions to combat local au-
thorities’ deficit and imposed further budget discipline. Later, Royal Decree-Law
8/2010, of 20 May 2010 has established exceptional measures for the reduction of
the public deficit. What is more, and in the wake of growing political concern
about this state of facts, the Constitution itself (art. 135) was amended in Septem-
ber 2011, to introduce further limitations on the public debt and to stabilise the
public budgets, which affect all governmental bodies, including local authorities.
From the perspective of local autonomy, local property does not present
noticeable of unsatisfactory features in Spain. Local authorities are entitled to
own and use any kind of property, goods and assets (tangible and non-tangible,
moveable and non moveable) for the discharge of their responsibilities and the
delivery of local services. What is more, local property may be the source of
substantial revenue for the local body, by charging fees and public prices for
their use (see point 7, supra). Local authorities may acquire property through
any legal way, including the use of eminent domain. Therefore, the legal scheme
of local property (Act 7/85, Royal Decree 1372/1986, of 13 June 1986 and ad-
ditional regional rules) provides a fair and sufficient room for the development
of local policies and programs. In fact, local authorities own a considerable
amount of property and assets, even more than regions.
Like in other European countries with a «continental», droit administratif
tradition, local property is regulated by a special legal regime, to which regular
Civil Law applies in a subsidiary way. Also, local property may be divided in
two main groups of goods and assets: (a) public domain property (dominio
público); and (b) private property (bienes patrimoniales). The first group is
constituted by those goods and assets which are linked to a specific local ser-
vice (for instance, the town hall, and other local infrastructures and facilities
such as slaughterhouses, marketplaces, museums, schools, cemeteries, etc.), or
which are open to the general use of the public at large (the streets, squares,
54
Source: Report of the Central Bank of June, 2011.
55
Royal Legislative Decree 2/2007, of 28 December 2007.
624
parks, bridges, etc). This type of local property is especially protected by the
Law, as it cannot be sold, transferred or be subject to mortgages. It cannot be
seized or executed, neither. What is more, local authorities enjoy special rights
and unilateral prerogatives for protecting these goods: they can investigate the
legal situation of these goods; they can impose sanctions and fines on those
who damage or use them improperly; they can recuperate the possession of
these goods and they can even evict unlawful users of the said property. All
these powers may be exercised by the local authority without the need of going
to court, although the affected citizen may of course challenge the local deci-
sions if they are illegal. Public domain property may be used by citizens and
firms in a free way, or under certain legal schemes (licenses, authorizations,
etc.) which grant them more or less exclusive (although limited in time) rights,
the strongest being the «administrative concession». Again, in these legal fig-
ures the local authority is not considered just as a «regular landlord», but its
position is qualified and is plenty of governmental prerogatives, alien to regular
civil law relationships.
On the other hand, local «private property» (bienes patrimoniales) is
formed by those goods and assets which are neither connected with a public
service nor open to the public enjoyment. The shares of corporations owned by
local authorities have this legal nature, as so do the slots of land which mu-
nicipalities are supposed to keep in order to influencing the local real estate
market (patrimonios municipales de suelo). Local private property is regulat-
ed, as a rule, by private law, but Administrative law devices and procedures
apply, too. Even in this case the local authority is not depicted by the Law just
as a regular «private» owner, since it enjoys a set of special rights and pre-
rogatives for the protection of the public interest, although in an attenuated
manner. Contrary to public domain goods, local private property may be sold
or transferred. Some limitations, again, here apply: local authorities need to
obtain the approval of the regional competent body if they want to sell goods
and assets whose value exceeds of 25% the regular annual income of the local
budget.
9.1. Introduction
The wording of this chapter suggests different types of «control» or over-

sight on local authorities’ activity, performed by different actors and institu-
tional players (other levels of government, the courts, the Ombudsman,56 etc.).
56
In Spain, the Ombudsman may be found in the three levels of territorial government: (a) at
the State, national level; (b) at the regional level; and (c) at the local level. The national Ombuds-
man («Defensor del Pueblo», literally, «defender of the people»), was the first to be incepted.
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angel-manuel moreno
Under the Spanish constitutional system (see above, point 3.1) local autonomy
means, above all, a realm of decision-making in the hands of local authorities,
which can be exercised free from intervention, «authorisation» of «approval»
by the upper levels of government (the regional and the national agencies). This
basic assumption does not mean that each municipality is an «independent»
entity, or a «city-state» in the old Greek historical meaning. Local autonomy
does not mean absence of external control. In fact, lato sensu, the activity of
local authorities may be «checked», controlled or supervised by different types
of bodies, with a different degree of scrutiny.
First of all, local authorities, as units of the executive branch, may be control-
led by the courts. The most important judicial control is performed by the admin-
istrative courts (jurisdicción contencioso-administrativa), which, as in other Eu-
ropean countries, constitute a specific jurisdictional track within the judicial
power.57 Any affected person, company or organisation may file a lawsuit chal-
lenging a Local authority’s decision, a regulation or a plan, if they comply with
the general requirements (i.e. locus standi) established in the applicable 1998
procedural law. What is more, other governmental authorities (either the regional
or the state ones) may also sue the local body in courts, if the local body’s action
is illegal or there is a discussion on competences (see point 9.2, infra).
Second, the national court of auditors (Tribunal de Cuentas) also performs
a «post facto» control on the lawfulness and regularity of the expenses made by
local authorities, on the basis of the applicable law on budgeting and account-
ancy. If the municipality or the province is located in a Region which has its
own Court of Auditors, then they are also controlled by that body. However,
this control is rather slow, and, because of their workload, the control takes
place several years after the end of the fiscal year that is controlled. When il-
legalities or irregularities are found, responsibilities may follow on the part of
the mayor, the deputy-mayors, etc. Thirdly, there is a complex and delicate set
of inter-administrative controls, which is analysed below.
9.2. Inter-administrative control by the Regions and by the State
As in other countries, the Spanish system has established some mechanisms

by which either the region of the State (the «higher levels of government») may
Later, many regions have established their own ombudsmen (13 out of 17 in total). On the other
hand, some local authorities have also established an office which holds the name of Ombudsman
or «defensor del pueblo» (cities of Barcelona, Cornellá, provinces of Córdoba and Málaga) , but it
is hard to know where this figure exists, since there is no official account of this development, each
local authority decides in a free manner, and there is no clear or common pattern whatsoever.
57
However, the Spanish situation is different to that in Holland, France, Greece, Belgium or
Luxembourg, in the sense that the Council of State (Consejo de Estado) does not have any juris-
dictional powers. The highest court in administrative litigation is the Supreme Court (Tribunal
Supremo).
626
exercise a «control», supervision or just an «information-gathering» activity58

over what local authorities do or decide. Local authorities are autonomous un-
der the Constitution, but by no mean «independent» or watertight administra-
tive compartments. Local autonomy does not exclude decisional interventions
of the region or of the national agencies. The key point is that, as a general rule,
the type of control over the activities of local government bodies that can be
exercised by regional or State authorities is a control of legality, not a control
of opportunity or expediency. Contrary to countries such as Belgium or Lux-
embourg, the Spanish system does not recognise the administrative «tutelle» on
local authorities, as it is understood as incompatible with local autonomy.
Local autonomy excludes the possibility for the region or the State to annul
or modify the decisions, rules and plans of local authorities on grounds of ex-
pediency or opportunity, but they can implement a control of legality, whose
correct exercise is in any case controlled by the courts. In other words, inter-
administrative control over local authorities is: (a) as a rule, limited to questions
of legality; (b) submitted to the scrutiny of the administrative courts. However,
although the «theory» is clear, the practice is complex, and the inter-adminis-
trative litigation is abundant. The following principles should be here briefly
presented:
(A) As a general principle, local authorities are free from external interven-
tion to take any adjudication, rule, by-law, ordinance, plan or initiative
in the domain of their competences and responsibilities (as presented
above). This is considered to be the heart of local autonomy.
(B) However, in some sectors of governmental action, sectoral legislation
establishes the need for the municipality to get the approval from either
the regional or State agencies and departments. The cases are few, but
important. Thus, for example, in the domain of land use and planning
policy, the approval procedure for municipal land use plans is two-
fold: municipalities are free to decide and to approve their own plans,
but their approval is just a sort of «preliminary» or «initial» one. To be
fully binding and executive, the plan needs the «definitive» approval of
the regional agency59 on land use and territorial policy.60 Theory still
tells that regional control over municipalities is restricted to legality
issues, but in practice the border between «legality» and «expediency»
is murky.
58
All municipalities and provinces must communicate the decisions or legal measures that
they adopt to the regions and to the respective regional offices of the State administration. This
duty to just «communicate» has been found compatible with local autonomy, in the constitu-
tional court case-law.
59
In the cases of the cities of Ceuta and Melilla, this «final» approval must be awarded by
the State Department.
60
Municipalities, however, may approve more detailed or restricted plans, and construction
projects, without the control or approval of the region.
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angel-manuel moreno
Apart from this open «yes or no» decision of approval by the Region,
regional agencies have other indirect ways to determine the content of
the local authority measure. For instance, and under the legislation on
strategic assessment for land use plans, every municipal master land
use plan needs a Strategic assessment, which is performed by the re-
gion. In this environmental assessment, several questions and aspects
must be evaluated, which are not purely «legality» matters.61 In any
case, the municipality has to introduce in the master plan the «re-
marks», the «suggestions» and «recommendations» expressed by the
regional agency; otherwise, the plan will not get the «final» regional
approval required by the law.
In other cases, municipalities do require the plain approval of the re-
gion or the state to take a decision. Theses cases are, of course, excep-
tional. For instance, in financial matters, municipalities must obtain the
approval of regional or State finance&budget authorities if they want
to take loans or to engage in public debt beyond certain ceilings, or if
they want to convey property (see point 7). Finally, the performance of
popular consultations («local referendums») must also be approved by
the Council of Ministers (art. 71, Act 7/85).
(C)
Supervision and control by central and regional authorities on grounds
of expediency is increasing during the last years, although in an indi-
rect, subtle or «disguised» way. This control has been introduced by
several techniques. On the one hand, certain recent laws and regula-
tions have established criteria, guidelines and rules in the domain of
budgeting and expenses, which must be followed by local authorities.
The second mechanism to conditioning or determining the «free»
choice of local authorities comes from the «inter-administrative coor-
dination», where the regions (preferentially) or the State (very rarely)
have the power to coordinate different local plans or programs. This
happens especially in the domain of public infrastructures, local police,
education, etc.
(D) The system of inter-administrative control of legality is mainly regu-
lated at arts. 65 and ff. of the Act 7/85, on Local government. Different
possibilities must be considered:
(1st) The Region or the State believes that a local authority has taken a
measure (either an individual decision, a rule or a plan) that is il-
legal. In this case, the regional or State agency issues a warning to
the local body, asking for the annulment of the contested meas-
ure. The local authority has a one-month period for either rectify-
61
For instance: does the plan provide for a sufficient protection of soils? Is the path of urban
growth sustainable?, etc. When the regional agency identifies these questions, it may arrive to
different conclusions and interpretation of these murky concepts.
628
ing the measure or sustaining it. In the latter case, the regional or
State agency may sue the local body in the administrative courts.
A direct judicial claim (without the need to issuing a warning) is
also possible. Although this is not explicitly regulated by the legal
scheme on local government, the general law on judicial control
of administrative action allows the State/region attorney to ask
the court to issue an injunction (suspension of the execution of the
contested measure).
(2nd) The region or the State believes that a local authority has taken a
measure (either an individual decision, a rule or a plan) for which
the local body does not have competence, or which encroaches
with competences of the «higher» administrations. In this case,
the regional or State agency, without the need of issuing a warn-
ing, may sue the local body in the administrative courts. In the
complaint, the region/state may ask the court to suspend the ex-
ecution and enforcement of such a measure. However, that sus-
pension is not automatically granted by the court. The adminis-
trative judge is free to decide whether the suspension is justified
or not. If granted, the suspension lasts until the case is adjudi-
cated on the merits. The state agency has the duty to provide ar-
guments and evidence that the suspension is necessary.
(3rd) The State (through its territorial delegates) understands that a local
authority has taken a measure (either an individual decision, a rule
or a plan) that endangers seriously the general interest of Spain: in
this case, the delegate of the national government must address a
warning to the local body, which has a ten-day period to either
rectify or to sustain the contested measure. In the latter case, the
national government’s delegate has the power to suspend the con-
tested decision by its own power, but he must immediately sue
(within a ten-day period) the local authority in the administrative
court. In this litigation, thus, the State delegate will ask the court
to affirm the suspension that he has already declared. However,
the central government holds the burden of persuading the court
that the suspension already declared must be sustained.
(E)
Substitution: in exceptional cases, the region or the State may take ac-
tion or adopt measures in place of the local authority, if the local body
consistently and unlawfully refused to adopt a measure which is ob-
ligatory under the law. Substitution is an extraordinary mechanism.
Therefore, it has to be time-limited, and restrained to a given file or a
concrete decision.
(F)
Dissolution: in very extreme cases, the Council of Ministers, which is
the top central government agency, may decide to dissolve the govern-
ing body of a local authority, when the local body runs the local affairs
629
angel-manuel moreno
in a way which seriously damages the general interest and which con-
stitute a violation of a constitutional duty. This has happened only a
couple of times in the last 35 years (for instance, dissolution of the city
council of the city of Marbella in 2006, due to massive corruption
linked to land use and housing construction practices).
For the sake of this paragraph, «protection of local self-government» ad-

dresses the procedural and legal devices established in the Spanish legal system
against any encroachment or reduction on local autonomy that might be per-
formed by the executive or legislative branches of the national or regional gov-
ernments. In Spain, local autonomy is not merely a rhetoric idea: it is a consti-
tutional element, protected by legal and procedural devices. In this sense, local
self-government represents a limit to the decisional powers of the State or the
Regions. This key idea means that local authorities use local autonomy as a
claim, or as a shield, to challenge decisions or rules adopted by the two other
levels of government. In the litigation scenario of such protection, there is a
likely violation, encroachment or disregard of local self-government, crystal-
lised in a legal rule or an administrative decision taken by the national or the
regional powers. For the sake of a better presentation, two different legal de-
vices must be examined here: (a) – «ordinary protection», which is enforced by
regular or administrative courts; and (b) – «constitutional protection», carried
out by means of a special appeal before the Constitutional Court.
(a)
Ordinary protection: Whenever the national or regional agencies adopt
a decision or an administrative regulation which may impinge upon the
local competences or on the legal realm of local self-government, the
local authority that is affected by that measure may sue the State or re-
gional agency in the Administrative courts, claiming that local autono-
my has been violated. These courts may set aside and quash the con-
tested State or regional measure, if they think that the violation of local
autonomy is clear and evident. Therefore, this potential inter-adminis-
trative litigation is adjudicated by the administrative courts, which cul-
minate in the Administrative Chamber of the Supreme Court. The case-
law of this court of justice is consequently very important, and constitutes
an unavoidable element of the legal idea of «local autonomy».
(b)
Constitutional protection: The protection of local autonomy against vio-
lations performed by statutes (passed either by the national or the re-
gional legislatures) presents additional difficulties. The key point is that
regular Administrative courts do not have powers to annul Acts of parlia-
ments. This function is in Spain reserved to the Constitutional Court.
However, locus standi in this Court has been traditionally very restricted
and was not recognized to local authorities. Therefore, when the national
630
or the regional parliaments passed a statute involving some type of viola-

tion of local autonomy (for instance, an expediency control over local
government’s activity on the part of the regional or national agencies)
the local administration could not react and could not bring a constitu-
tional challenge against that piece of legislation. This situation changed
dramatically in 1999, when the Constitutional Court Act (Ley orgánica
del tribunal constitutional, of 1979) was amended to provide for a spe-
cific procedural way, which allows local authorities to protect their au-
tonomy. This litigation device is called «Conflict in defense of local au-
tonomy» («Conflicto en defensa de la autonomía local», in Spanish).
This device may only be triggered against legal rules consisting of «acts of
parliament» (national or regional) or other types of rules having the said nature.
As for the locus standi, it is enjoyed by different types of local authorities:
(a) one Municipality or Province, if the challenged statute affects solely
that body.
(b) a minimum number of Spanish Municipalities and Provinces, when the
statute is addressed to all said units, in abstracto or in a general way (for
instance, an Act of the national parliament providing for a specific form
of control over the activity of all Spanish towns and cities). This mini-
mum number varies according to the type of affected local authorities:
(b.1) one seventh of the total number of municipalities affected, which
means: one seventh part of the total number of Spanish munici-
palities if the statute is approved by the national Parliament, or
one seventh part of the total number of municipalities present in
the Region, if the statute is approved by the regional Parliament.
(b.2) half of the provinces affected by the statute, which means: half of
the total number of Spanish provinces if the statute is approved by
the national Parliament, or half the number of provinces present in
the Region, if the statute is approved by the regional Parliament.
The decision to trigger the «conflict» must be taken by the councils of the
concerned local authorities. This specific litigation follows some procedural
steps which are regulated by the 1979 statute governing the Constitutional
Court (mentioned supra). The said court may eventually declare that local self-
government has been actually violated by the challenged statute and, in some
cases, may even decide that the statute is unconstitutional for the said reason.
Until 2011, only two «conflicts» have been adjudicated on the merits by the
Constitutional Court, and in both cases the claim was rejected:
– Ruling 240/2006, of 20 July 2006, concerned the power of the central
government to approve the land use plan of the autonomous city of Ceuta.
– Ruling 47/2008, of 11 March 2008 dealt with a regional statute, which
eliminated a second-tier unit of local government, namely the metropoli-
tan area of l’Horta, in Valencia.
631
angel-manuel moreno
Other claims have not been admitted by the Court for different reasons and
thus have not been adjudicated on the merits. In a nutshell, there is a «constitu-
tional» protection of local autonomy in Spain, which may be used under strict
procedural requirements by local authorities. However, so far this device has
but rarely been triggered, and has not produced one single declaration of uncon-
stitutionality.
In Spain, local government has a clear connection with the European Union.
On the one hand, Spain has 21 representatives in the Committee of the Region.
Under a 1993 motion of the national Senate, it was decided that seventeen of
those representatives belong to the regions and four should represent the local
authorities (only big cities). These four full members are complemented by four
additional alternate members. The said representatives of the local government
are proposed by the national association of municipalities and provinces
(«FEMP»), usually according to the political power of each major political
party after the local elections. On the other hand, the Spanish delegation rotates
every two years. In spite of this «organic» representation of the local world in
the EU institutions, it has to be said that the actual weight of local authorities in
the EU decision-making process is very reduced. The hottest issue in Spain is
how to give the Regions an input in the voice and the positions of Spain as an
EU member state, while providing for a bigger municipal voice has never been
a major issue. In contrast with this weak representation of local governments
interests in the EU, it has to be said that local authorities in Spain play an im-
portant role in the execution and implementation of several rules and EU poli-
cies, such as environmental protection.
On the other hand, special attention should be given in this point to EU
structural funds and regional policy. Since the accession of Spain to the Euro-
pean Communities in 1986, many municipalities and provinces have been re-
cipients of huge amounts of funds coming from the different European pro-
grams and plans. In general, they participate actively in the design and
(partially) in the implementation of eligible projects for financial help, which
are mainly framed, proposed and managed by the Regions. Moreover, some EU
funding programs have been specifically designed for the local authorities, like
FEDER62 and the Cohesion fund.63 Moreover, some programs are implemented
by means of European Commision «Initiatives» (example: the URBAN
62
Actions under the FEDER program are managed by the Ministry of Territorial Coopera-
tion and Public Administration, and they are addressed to municipalities under 50,000 inhabit-
ants. The current phase of this fund (2007-2013) plans an overall amount of 346,77 million € for
Spain. The cities of Ceuta and Melilla are entitled to an additional financing of 50 million €.
63
The current phase of this fund (2007-2013) plans an overall amount of 3,543 million € for
Spain (Decision of the Europan Council of 16 December 2005)
632
initiative).64 In those cases, municipalities may apply directly to the funds,

without taking part in a more comprehensive, regional plan. In conclusion, EU
funding is an important element for carrying out many projects of infrastruc-
tures and municipal services.65 Therefore, the world of local authorities has
been so far an enthusiastic supporter of the European integration. This situation
might change starting 2012, when Spain will no longer be a neat receiver of
funds, but a neat contributor, in favor of the new Central and Eastern European
member states.
12.1. Landmark constitutional court rulings
Ruling of the Constitutional Court («STC») 4/1981, of 2 February 1981: local

autonomy is a general principle of the territorial organisation of the State.
STC 32/1981, of 28 July 1981 and STC 27/1987, of 27 February 1981: local
self-government is protected by the Law, as an «institutional guarantee» of
the constitutional system. Local self-government cannot be diminished or
disregarded by regional legislation
STC 4/1981, of 2 February 1981, STC 14/1981, of 29 April 1981 and STC
11/1999, of 11 February 1999: some forms of control on the activity and
administrative decisions of local government units (discharged by other lev-
els of government) are constitutionally admissible.
STC 35/1982, of 14 June 1982: the concept of self-government implies for the
local government units the capacity to formulate public policies of their own.
STC 84/1982, of 23 December, 1982: the matter of «local government» is
shared between the State and the regions: local government is a «dual-front»
matter
STC 27/1987, of 27 February: local autonomy is an underlying technique of the
constitutional model of the state
STC 159/2001, of 5 July 2001
STC 240/2006, of 20 July 2006: the statutory provision according to which the
land use master plan of the city of Ceuta must be approved by the central
government does not violate the Constitution.
64
Since 1994, URBAN promotes integrated projects on sustainable local development in Span-
ish cities that are capitals of the province or have more than 50,000 inhabitants. The third phase of
URBAN (now renamed «URBANA») covers the period 2007-2013 and plans and overall assistance
of 344,66 million € for Spanish local authorities. 138 authorities are eligible under this scheme.
65
For more detailed information, see the website of the General Directorate of European
Funds: http://www.dgfc.sgpg.meh.es
633
angel-manuel moreno
STC 25/1983, of 7 April 1983, 214/1989, of 21 December 1989 and STC

76/2003, of 23 April 2003: on the constitutionality of the activity of civil
servants having a national accreditation. The national Parliament may de-
cide to reserve some basic and key administrative tasks to those civil serv-
ants. This fact does not diminish the regulatory competences of the regions
in this field.
STC 31/2010, of 28 June, 2010: the regulatory powers of the regions (in this
case, those of Catalonia) must respect the limits represented by the national,
basic legislation (in the matter of the provinces).
(A) Books66
Ballesteros Fernández, A.: Manual de Administración Local. El consultor,

2006.
Fuentetaja Pastor, J. A. & Fernández Rodríguez, Carmen (directors): Man-
ual de Derecho Local. Iustel, 2010
Muñoz Machado, S. (coord.): Tratado de Derecho Municipal. 3rd. Ed., Iustel,
2011 (4 Vols).
Parejo Alfonso, L.: Derecho básico de la Administración local, Barcelona,
1988.
Rebollo Puig, M. & Izquierdo Carrasco, M. (directors): Comentarios a la
Ley reguladora de las bases de régimen local, Tirant lo Blanch, 2006. 4
Vols.
Rivero Ysern, J.L.: Manual de Derecho Local. 6th ed., Civitas, 2010.
Sosa Wagner, F.: Manual de Derecho Local. 9th ed., Thomson-Aranzadi,
2005.
Yearbooks:
Sainz de Baranda Foundation: Anuario Aragonés del Gobierno Local. A
yearly review of the most relevant developments in the domain of local gov-
ernment in Spain (with a focus on the Region of Aragon). 2nd edition, 2010.
Instituto de Derecho Local: Anuario de Derecho Municipal (4th edition,
2011).
66
Due to the high amount of specialised bibliography on local government, reference is
herein made to treatises and manuals only.
634
(B) Law and public policy reviews
«Revista de Estudios de la Administración local y autonómica». Four-monthly

review published by the National Institute of Public Administration (INAP):
www.inap.es
«Revista de estudios locales». Bi-monthly review published by the national as-
sociation of Local government Secretaries and comptrollers (Cosital): www.
revistacunal.com
«Carta Local», a monthly review published by the National Association of
Towns and Provinces (FEMP: www.femp.es).
(A) National Departments and bodies:

– www.mpt.es: State Department of Territorial Policy and Public Ad-
ministration (with useful information and data about local authorities).
– www.inap.es. National Institute of Public Administration
(B) National and regional associations of local authorities:
– www.femp.es: Spanish associations of cities and provinces
– Each region has at least one association of towns and cities and prov-
inces: www.fmmadrid.es: federation of towns and cities of the region
of Madrid
(C) Research institutes and foundations:
– www.idluam.org: Institute of Local Government Law, Autonomous
University of Madrid
– www.gobiernolocal.net («Democracy and local life» Foundation, at-
tached to the provincial council of Barcelona)
– www.cemci.es: Center for studies on municipal affairs, attached to
the provincial council of Granada.
(D) Local governments websites:
– Each province has its own website, with useful information on the
Province’s activitities and services. Example: www.dipucr.es, web-
site of the governing council of the Province of Ciudad Real
– Each major city has its own website, with useful information on the local
activities. Example: Madrid: www.madrid.es; Barcelona: www.bcn.es
(E) Other references:
– www.cosital.es: National professional association of local govern-
ment secretaries and comptrollers
– The Constitutional Court rulings cited in this contribution are acces-
sible in the court’s website: www.tribunalconstitucional.es
635
Chapter 26:
LOCAL GOVERNMENT IN SWEDEN
Tom MADELL
1. A BRIEF INTRODUCTION
1.1. The history of local self-government
Sweden has a very long history of local decision-making. During the middle
ages, there was a well-developed system of local self-government, both in rural
areas and cities, but during the 17th century, the monarchy strengthened its cen-
tralised power. However, during the 18th century some local self-government
issues were extended to the Church, which was organised in local units, the
parish (socken), and to city governments (stad). Both parishes and cities be-
came responsible for poor relief.1 «In rural areas, local self-government as-
sumed rather clear shape as a result of ordinances issued in 1807 and 1843,
while city governments remained unregulated. The concept of municipality
(kommun) as an independent legal person had not yet emerged. Instead, inhabit-
ants of a parish or a city were regarded as the actual subjects of self-government.»2
An important cornerstone of local self-government was laid with the lo-
cal government reforms in 1862. Ecclesiastic and secular affairs were sepa-
rated and the cities and rural municipalities – which had the same geograph-
ic boundaries as rural parishes – became responsible for secular affairs. At
the same time, elected county councils with a rather broad range of powers
on the regional level (landsting) were established. Since the 1977 Local
1
The information in the introduction basically comes from John Olsson: Svensk kommu-
nalförvaltning, Stockholm 1957; Sören Häggroth, Kai Kronvall, Curt Riberdahl & Karin Rude-
beck: Swedish Local government, Traditions and Reforms, The Swedish Institute, Stockholm
1993, pp. 7–11; Gunnar Wetterberg: Kommunerna, SNS Förlag, Stockholm 2000, pp. 17– 22,
and http://english.skl.se/web/Municipalities_county_councils_and_regions.aspx.
2
Sören Häggroth, Kai Kronvall, Curt Riberdahl & Karin Rudebeck: Swedish Local govern-
ment; Traditions and Reforms, The Swedish Institute, Stockholm 1993, p. 8.
637
tom madell
Government Act, the same rules apply for all municipalities and county
councils.To some extent, the historical heritage of the legislation of 1862
still can be found in the 1991 Local Government Act. First of all, the Swed-
ish municipalities are based on a competence of power between a directly
elected municipal assembly and an executive committee. Secondly, already
in 1862 the municipalities and county councils were granted the right to levy
their own taxes and to set their own tax rates when they adopted their local
budgets – without the approval of any central government. A third heritage
is the citizens right to appeal against the legality of local government deci-
sions.
1.2. The challenge for Swedish local government
For many years, the main responsibility for providing various types of pub-
lic services in Sweden has rested on local government. The importance of local
government has also grown apace with the construction of the welfare state.
The municipalities (charged with local government functions) have, during the
last decades, taken over responsibility in several areas where central govern-
ment or the (regional) county councils used to have responsibility, e.g. the re-
sponsibility for providing basic care and treatment for the elderly, the chroni-
cally ill, the care for the physical or mentally disabled and other residents of
«special types of accommodation» and child care.
The changes in Swedish welfare policies during the last two decades –
with decentralisation and privatisation – have also been aimed at decreas-
ing the size of the public sector, whilst keeping up the levels and maintain-
ing the goals of the welfare state. Legislation on social services and other
local government issues has increasingly been structured as «frame-work»
laws while providing few details. This gives the municipalities responsi-
bility for organising and providing several types of public services, whilst
central government has retained the means to exert influence and control.
In general terms, one could say that during the last decade, the public sec-
tor in Sweden has been characterised by less central government control.
The legislation has been constructed as «defined-rights legislation», im-
posing duties on public authorities but not conferring enforceable rights on
individuals.
Today, municipalities, county councils and regions to a large extent procure
services from private companies. Activities carried out by private companies
on behalf of municipalities, county councils or regions are financed using pub-
lic funds. In some areas – such as refuse collection, public transport and dental
care – it has been for a long time common for the public authorities to procure
services externally. During the last ten years, an increased number of private
companies have begun to run preschools, schools, hospitals and care facilities.
Competition with private enterprise, and privatisation, has been a hallmark of
638
local government in sweden
the municipal area since the beginning of the 1990s and in this respect, the in-
fluence of European Union cannot be underestimated.3
One of the biggest challenges today is to define the ability of local authori-
ties to determine their own internal structures.4 In Nordic societies, the provi-
sion of welfare services through the welfare state has been a key element for a
number of years and there has been considerable political consensus on the
desirability of preserving the welfare state.5 However, liberalisation and priva-
tisation, which is generally promoted at the economic and social level through
the development of the Internal Market in the EU, may put pressure on welfare
states and create tensions between the EU and Member States in matters of
welfare. One problem with the development is the so-called Kommunalblind-
heit – blindness regarding local authorities – of EU-law when it comes to the
municipal responsibility for planning and developing infra structure and social
services etc. – a responsibility that has a long tradition in the Scandinavian
welfare states.6
Sweden has a population of 9.3 million people and the surface area is
450,295 km2, which makes 20.1 inhabitants/km2. The mostly spoken language
is Swedish, but there is also some small Sami- and Finnish speaking minorities.
There are two tiers of government in Sweden – central government and lo-
cal/regional government – and there are two levels of local and regional admin-
istration in Sweden. At the local level there are directly elected municipalities
(kommuner). At the regional level there are directly elected county councils
(landsting) or, in a few cases, «regions», who have more extensive functions
than the county councils. In addition, there are central government agencies at
regional level: a general purpose county administrative board (länsstyrelser) in
3
��
About the use of public and administrative contracts in Sweden, see Tom Madell, Det all-
männa som avtalspart – särskilt avseende kommuns kompetens att ingå avtal samt avtalens rätts-
verkningar, 1998.
4
See Tom Madell: «The framework of public services in Sweden», in: The changing legal
framework for Services of General Interest in Europe – Between competition and solidarity,
Markus Kravewski, Ulla Neergaard & Johan van de Gronden (Eds.), T M C Asser Press, Hague
2009, pp. 423–450.
5
See e.g. Anna Hollander & Tom Madell: Socialtjänst på entreprenad – kan utredningar
inom individ- och familjeomsorg överlämnas till enskilda utan särskilt stöd av lag?, FT 2003, p.
15–46, and N. F. Christiansen, The Nordic Model of Welfare, 2006.
6
The terminus goes back to Angela Faber: Die Zukunft kommunaler Selbstverwaltung,
Deutsches Verwaltungsblatt 1991, p. 1126 (1132). See also Dian Schefold: »Zur Gestalt der
Regionen», in: Europa und seine Verfassung, Festschrift für Manfred Zuleeg, Charlotte Gaitani-
des and others (Eds.), Baden-Baden 2005, p. 288 (esp. 292 note 23, 293, note 25, 306 with note
76). In the recent discussion, see the volume 1 of Handbuch der kommunalen Wissenschaft und
Praxis, Günter Püttner & Thomas Mann (Eds.), vol. 1, 3rd ed., Berlin 2007.
639
tom madell
each county (län) and regional branches of specialized central government

agencies (which may cover other territories than counties).
Sweden is divided into 290 municipalities, 18 county councils and two re-
gions: Västra Götaland and Skåne. There is no hierarchical relation between
municipalities, county councils and regions, since they all have their own self-
governing local authorities with responsibility for different activities. While the
municipalities are responsible for providing services in many different areas,
the main responsibility for the county councils is to provide medical care and to
run regional hospitals. The only exception is Gotland, an island in the Baltic
Sea, where the municipality also has the responsibilities and tasks normally as-
sociated with a county council. The smallest municipality is Bjurholm, with a
population of 2,500 people, and the largest municipality is Stockholm, with a
population of 829,417 people.7
3.1. The legal framework of Swedish local government
The principle of local self-government is one of the fundamental principles

of the Swedish democratic system, and forms the basis of activities undertaken
by municipalities. This means that the inhabitants of each municipality and re-
gional municipality – county council – elect their political representatives to a
municipal or county assembly every four years through direct elections. In this
way, inhabitants can influence how the municipalities and the county councils
fulfil their mandate. Local and regional autonomy is written into the Swedish
Constitution. It follows from Chapter 1, Article 1, of the Instrument of Govern-
ment (Regeringsformen, one of the four fundamental laws that form the consti-
tution) that Swedish democracy is founded on the free formation of opinion and
on universal and equal suffrage. It shall be realised through a representative and
parliamentary polity and through local self-government. In Chapter 1, Article 7
it is stated that Sweden has local authorities at local and regional level.
From January 1st 2011, local authorities are given a proper Chapter in the
1974 Instrument of Government (Chapter 14), where the local self-government
is given a more clear constitutional status.8 It follows from Article 1 that the
decision-making power in the municipalities is exercised by elected assemblies
7
See http://www.skl.se/web/Fakta_om_lan_och_kommuner.aspx and Anders Lidström,
«Sweden: Party-dominated Subnational Democracy under Challenge?» in: The Oxford Hand-
book of Local and Regional Democracy in Europe, Oxford University Press, Oxford 2011, pp.
266–273.
8
See also the travaux préparatoires: prop. 2009/10:80, En reformerad grundlag, pp. 208–216,
SOU 2008:125, En reformerad grundlag, Del 1, pp. 531–544, SOU 2008:125, En reformerad
grundlag, Del 2, pp. 805 f., and SOU 2007:93, Den kommunala självstyrelsens grundlagsskydd.
640
and it follows from Article 2 that the local authorities are responsible for local
and regional matters of public interest, in accordance with more detailed rules.
It is stated in Article 3 that the legislator needs to take into account the principle
of proportionality if there are any changes proposed that might affect the local
self-government. In addition, Chapter 1, Section 1, of the 1991 Local Govern-
ment Act (kommunallagen) states that the municipalities and county councils
attend to the matters indicated in the Act or in special regulations, proceeding
on principles of democracy and local self-government. The responsibilities of
Sweden’s municipalities, county councils and regions are not only regulated in
the Local Government Act. There are also laws and regulations covering spe-
cific areas of local and regional government responsibilities, e.g. the Social
Services Act, the Planning and Building Act, the Education Act and the Health
and Medical Services Act. Within the framework of these and a large number
of other acts the municipalities, county councils and regions have a great deal
of freedom to organise their activities as they see fit.
3.2. The implementation of the European Charter of Local Self-

Government
In the Swedish system, international conventions are usually transformed

into domestic legislation. International agreements are (as such) not part of the
internal Swedish hierarchy of norms. However, the way to make them become
a part of this hierarchy is to incorporate them into domestic legislation and, as
a rule, two steps are necessary to achieve this. As a first step, the Government
has to conclude the agreement and the Swedish Parliament has to approve it,
and as the second step the normative substance of the agreement has to be trans-
formed into Swedish law. The transformation of an international treaty into
domestic legislation may take place, for example, by adding new provisions to
an existing Act or ordinance or by enacting a new Act or ordinance, which
transforms the substance but not necessarily the wording of the international
agreement. Finally, the said transformation can also be achieved by explicitly
providing that the agreement shall be in force as Swedish law. In this case the
text or texts of the agreement, and, if necessary, a translation of the text into
Swedish is annexed to the transformation Act. The last mentioned method was
used in 1994 for the transformation of the European Convention for the Protec-
tion of Human Rights and Fundamental Freedoms and the transformation of the
law of the European Union into internally applicable law.
At the time of the approval of the European Charter of Local Self-Govern-
ment (1989), the view of the Swedish Government was that the 1977 Swedish
Local Government Act was in line with the Charter and that no substantial
changes therefore where needed in the Swedish legislation. The Charter and the
Explanatory report were added as an appendix in the travaux préparatoires.
However, some adjustments were made in the 1991 Local Government Act as
a result of the transformation of the Charter. Therefore, in that sense the provi-
641
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sions of the Charter are actually incorporated into the domestic legal system,
but it is difficult to find ‘hard’ or formal evidence of this incorporation, outside
the Parliament’s approval and some references to the Charter in the preparatory
works. In any case, one should keep in mind that Swedish travaux prépara-
toires are usually viewed as an utterly important document for the interpreta-
tion of the enacted text. They are usually followed, not because they are for-
mally binding but because that is the Swedish legal tradition.

AUTHORITIES
Competences and powers of local authorities according to the Local

4.1.
Government Act
As stated above, local self-government has a long tradition in Sweden. The

country’s municipalities, county councils and regions are responsible for pro-
viding a significant proportion of all public services. They have a considerable
degree of autonomy and have independent powers of taxation. Swedish mu-
nicipalities, county councils and regions are responsible for providing a sig-
nificant proportion of all public services. They have a considerable degree of
autonomy and have independent powers of taxation. Local autonomy and the
right to levy taxes are stipulated in the Instrument of Government, one of the
four pillars of the Swedish Constitution.
It follows from Chapter 2, Section 1, of the 1991 Local Government Act, that
municipalities and county councils may themselves take care of matters of gen-
eral concern that are connected with the (geographic) area of the municipality or
county council or with their members and which are not attended solely by the
state, or by another municipality or county council. Swedish municipalities are to
a large extent free to decide their own administrative structure to fulfil the certain
tasks and needs of each municipality. As an example, it can be mentioned that,
according to (old) case law a rural municipality can be allowed to run e.g. a petrol
station or a hotel if no one else is providing that service in the area, while this is
not allowed in an urban municipality where those needs are fulfilled by others.
Theoretically, this means that not only can the administrative structures of
the municipalities be organised in 290 different ways, and the county councils
and regions in 20 different ways. However, in practice the different local and
regional governments are organised in a similar way.
4.2. Competences and powers according to specific legislation
The main responsibility for providing various types of public services in

Sweden rests with local government – the municipalities – or the regional bod-
642
ies, the county councils. Over the past 50 years, responsibility for several major
public services, such as social care and elementary schools, has been shifted
from the state to municipalities. Thus, municipalities enjoy a strong status in
society due to their extended area of operations. The cost of tasks that fall under
the responsibility of the municipality are, to a major extent, covered by income
tax paid by inhabitants of the municipality and the cost of the provided services
are, to some extent, covered by fees.
The principle of local self-government is one of the fundamental principles
of the Swedish democratic system, and forms the basis of activities undertaken
by municipalities. However, the responsibilities of local authorities are not only
regulated in the Local Government Act. It also follows from certain legislation
that the main responsibility for providing various types of public tasks rests
with the municipalities or the county councils. The municipalities are responsi-
ble for several major public services, such as social care and elementary schools,
planning, constructing and operating facilities for water, wastewater, waste
management etc. When it comes to the provision of many mandatory tasks, the
specific areas are covered in laws and ordinances, for example the Social Ser-
vices Act, the Planning and Building Act, the Education Act and the Health and
Medical Services Act. It also follows from the Expropriation Act that the mu-
nicipalities can expropriate private property if needed for the fulfilment of in-
frastructure projects etc. The municipalities also have some rulemaking capac-
ity, e.g. in local traffic regulation, some environmental issues and concerning
the consumption of alcohol etc. in public places.
In the early 1990s, the Swedish Parliament ruled on a principle that allowed
the services provided by municipalities and county councils to be run by entre-
preneurs under contract, apart from those activities involving the exercise of
public authority. Municipalities and county councils are therefore free to decide
the forms in which municipal and county council services may be organised.
Services can thus be delivered by municipalities themselves, by municipal
companies9 or by providers that have been procured under contract by coopera-
tive companies, private individuals and associations.10
The national agencies in charge of social services supervise their provision
on behalf of the central Government. This supervision, which takes place at
both national and regional levels, consists of monitoring and evaluating service
provision, considering individual cases and ensuring that the rights of individu-
als are respected.
9
There are many municipal owned companies in Sweden and they operate in a lot of differ-
ent areas, electricity, water supply and waste water, garbage collection, real estate management
etc. More than 20% of the different companies in the municipality where owned by a municipal
owned holding company (in 62 of a total of 290 municipalities).
10
See Tom Madell: «Chapter 20; Sweden», in: The Changing Legal Framework for Services
of General Interest in Europe – Between Competition and Solidarity, Markus Krajewski, Ulla
Neergaard & Johan van de Gronden (Eds.), The Hague 2009, pp. 423–450.
643
tom madell
4.3. The most common services performed by the municipalities
The Swedish municipalities are by law responsible for the provision of, e.g.:
– Social services
– Childcare and preschools
– Elderly care
– Support for the physically and intellectually disabled
– Primary and secondary education
– Planning and building issues
– Health and environmental protection
– Refuse collection and waste management
– Emergency services and emergency preparedness
– Water and sewerage
– Libraries.
On a voluntary basis and within the frame of the Local Government Act the
Swedish municipalities are also allowed (and more or less expected) to provide
services within, e.g.:
– Leisure activities
– Cultural activities
– Housing
– Energy
– Industrial and commercial services.
4.4. The responsibilities of the county councils and regions
The main responsibility of the county councils and regions is to provide

healthcare to the citizens. The county councils and regions are responsible for
ensuring that everyone living in Sweden has access to good healthcare. Sweden
has more than 70 hospitals at county level and nine regional/university hospi-
tals. Another area of responsibility is regional development. Thus, the county
councils and regions support business and industry in their area and encourage
new enterprise. In most counties, public bus transport is run by the county
council or region, often together with the municipalities. This is done either
through jointly owned companies or through private entrepreneurs. To some
extent, the county councils and regions are also responsible for areas such as
tourism and culture.11
11
Se http://english.skl.se/web/Activities_1.aspx.
644
5.1. Elections
A proportional election system is used for local, regional and national elec-
tions. At the local level there are directly elected municipalities. At regional
level, there are directly elected county councils (or regions). Local, regional
and national elections are held at the same date: the third Sunday in September,
every fourth year (the next election will be held in 2014). In these elections,
Swedes vote for political parties to represent them in the three political assem-
blies: the municipal assembly, the county council or regional assembly and the
national parliament (Riksdagen).
The right to vote in elections to county and municipal councils belongs to
Swedish citizens who attain the age of 18 no later than on election day and who
are registered for population purposes within the county area or municipality
concerned. Citizens of the European Union and citizens of Iceland and Norway
also have the right to vote, subject to the same conditions. Other foreign citi-
zens have the right to vote if they have been registered residents in Sweden for
a continuous period of three years before Election Day. A person who has the
right to vote is also eligible for election. When it comes to voting for the na-
tional Parliament, a Swedish emigrant is automatically entitled to vote until ten
years after he or she left the country.
People who are entitled to vote may also stand for election, if they are nom-
inated by a political party. Most of those holding elected office at local and re-
gional level are not full-time politicians. They carry out their political work
alongside their ordinary jobs.
It is common in Sweden to talk about a non-socialist bloc and a socialist bloc.
The national parties also dominate at a local level. The non-socialist block is made
up of the Centre Party (c), the Liberal Party (fp), the Moderate Party (m) and the
Christian Democrats (kd). The socialist bloc consists of the Social Democrats (s)
and the Left Party (v). The Green Party (mp) is often considered as being part of
the socialist bloc, but in some areas the party holds the balance of power and
chooses the bloc it wishes to support on each particular issue. There is a long tradi-
tion of consensus at local and regional levels, and it is common for parties to co-
operate and form majorities with parties from different blocs. Apart from these
national parties, there are also specific local parties, sometimes single-issue parties.
5.2. The assembly and the executive committee
5.2.1. The assembly
Municipal and county council/regional assemblies are the highest decision-

making bodies at the local and regional levels. Every municipality and every
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county has one decision-making assembly: the municipal assembly in the mu-
nicipalities and the county council assembly in the county councils. A munici-
pal assembly shall appoint a municipal executive committee and a county as-
sembly a county council executive committee. The assembly shall also appoint
the committees needed, in addition to the executive committee, for the dis-
charge of the duties of the municipality or county council under special enact-
ments and for the conduct of its other activities. The rules concerning the as-
sembly can be found in Chapter 5 the Local Government Act. All assembly
meetings are open to the public.
The assembly decides how many members the assembly shall have. The
number shall be set at an odd number and not less than the following:
– 31 in municipalities with 12,000 or less residents entitled to vote and in
county councils with 140,000 or less residents entitled to vote,
– 41 in municipalities with more than 12,000 and up to 24,000 residents
entitled to vote,
– 51 in municipalities with more than 24,000 and up to 36,000 residents
entitled to vote, and in county councils with more than 140,000 and up to
200,000 residents entitled to vote,
– 61 in municipalities with more than 36,000 residents entitled to vote, and
– 71 in county councils with more than 200,000 residents entitled to vote.
– In the Municipality of Stockholm and in county councils with more than
300,000 residents entitled to vote, however, the number of members shall
be set at not less than 101. There shall be alternates for the members of the
assembly.
Members and alternate members of the assembly are to be elected for four
years, as from 1 November of the election year.
It follows from Chapter 5, Section 6, that the assembly elects a chairman and
one or more vice chairmen from among its members and that the assembly de-
cides the duration of these mandates.
An assembly may only deal with a matter if more than half of its members
are present. An assembly may, however, decide that interpellations and ques-
tions are to be replied to even if fewer members are present. A member may not
deal with a matter of personal concern to the member himself, to the member’s
spouse, cohabitant, parents, children or siblings or any other person with whom
he is closely connected.
Before a matter is decided by the assembly, it shall have been prepared ei-
ther by a committee whose sphere of activity is concerned or by an assembly
drafting committee. If a matter has been prepared by an assembly drafting com-
mittee only, a committee whose sphere of activity it concerns shall always be
consulted. The executive committee shall always be consulted in a matter which
has been drafted by another committee or by an assembly drafting committee.
646
The executive committee shall put forward a proposal for the decision of a mat-
ter if this has not been done by another committee or by an assembly drafting
committee. According to Chapter 5, Section 38, the Local government Act as-
sembly meetings are public. The assembly may, however, decide that a particu-
lar matter is to be discussed in camera. The alternates may attend a discussion
of this kind, even if they are not serving. The chairman leads the assembly
meetings and is responsible for the maintenance of order during the same.
According to Chapter 3, Section 9 of the Local Government Act, the assem-
bly decides matters involving questions of principle or otherwise of major im-
portance to the municipality or county council, especially:
1. goals and guidelines of activities,
2. budget, taxation and other important financial questions,
3. the organisation and procedures of committees,
4. the election of committee and drafting committee members and alter-
nates,
5. the election of auditors and their alternates,
6. the basis of financial benefits for elected representatives,
7. the annual report and discharge from liability,
8. the referendum in the municipality or county council.
The assembly also decides other matters indicated in the Local Government
Act or in other enactments. It follows from Chapter 3, Section 10 the Local
Government Act that the assembly may entrust to a committee to decide a cer-
tain matter or group of matters in the council’s stead. Matters indicated in Sec-
tion 9, subsection one (or required by law or statutory instrument to be decided
by the council) may not be delegated to the committees.
5.3. The executive committee and other committees
The duties of the executive committee are, according to Chapter 6 of the

Local Government Act, to direct and co-ordinate the administration of the af-
fairs of the municipality or county council and to supervise the activities of
other committees. The executive committee shall also supervise local govern-
ment activity carried on by local corporations and by local federations of which
the municipality or county council is a member. The executive committee shall
closely observe the questions which can affect the development and financial
status of the municipality or county council. The executive committee shall
also make such proposals as are necessary to the assembly, other committees
and other authorities.
It is the particular duty of the executive committee to:
1. Prepare or pronounce on business to be transacted by the assembly,
647
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2. Take charge of financial administration,

3. Give effect to assembly decisions, and
4. Perform the tasks entrusted to it by the assembly.
The assembly may decide that a committee other than the executive com-
mittee be wholly or partly entrusted with administration and executive powers.
The assembly may also decide that another committee is to be partly or wholly
responsible for its financial administration. The executive committee, acting
directly or through an attorney, may represent the municipality or county coun-
cil in all proceedings and transactions except where this devolves on another by
virtue of law or other statutory instrument or by resolution of the assembly.
Members and alternates shall be elected by the assembly and their number
is decided by the assembly. The executive committee may not have less than
five members, and the number of alternates should equal the number of perma-
nent members. Members and alternate members of the executive committee are
elected for four years, as from 1 January of the year after that in which assem-
bly elections were held.
According to Chapter 6, Section 15, the assembly shall appoint a chairman and
one or two vice chairmen from among the members of the committee, for a length
of time determined by the assembly. The chairman of the executive committee
(kommunalråd or landstingsråd) is usually the one that represents the municipal-
ity or the county council, but he or she has no formal executive powers and cannot
be compared with e.g. the function of a mayor that can be found in some countries.
Even if the formal powers are given to the executive committee, the importance of
the chairman should not be underestimated. He or she can often be considered be-
ing the strong man or woman of the municipality or the county council.
According to Chapter 3, Sections 20–28 of the Local Government Act, mu-

nicipalities and county councils may form local federations (kommunalför-
bund) and transfer to such federations the management of local government
tasks and responsibilities. A local federation is formed when the statutes of the
federation have been adopted by the members of the federation or at a subse-
quent point, in the time indicated in the federation statutes.
5.5. Municipal companies
According to Chapter 3, Section 16 of the Local Government Act, munici-

palities and county councils may transfer (by decision of the assembly) the
management of a local responsibility or task (for the conduct of which no spe-
cial procedure has been prescribed), to a distinct organisation: (a) a limited
648
company, (b) a trading partnership; (c) an incorporated association; (d) a non-

profit association; (e) a foundation or (f) a private person. However, it follows
from Chapter 11, Article 6 of the Instrument of Government, that the manage-
ment of a matter that includes the exercise of authority may only be transferred
if there is statutory support for so doing.
If a municipality or county council transfers the management of a local gov-
ernment task to a limited company in which all shares are owned by the mu-
nicipality or by the county council, the assembly shall determine the local gov-
ernment purpose of the activity. The assembly shall also appoint all members
of the board of directors, and shall ensure that it has the opportunity to state its
opinion before decisions of principle or other major decisions affecting the ac-
tivity are taken. The assembly shall also appoint at least one lay auditor in
limited companies where the municipality or county council directly or indi-
rectly holds all shares. Moreover, the assembly shall endeavour to ensure that
the public is entitled to inspect the documents of the company on the terms ap-
plying to the publicity of public documents.
6. HUMAN RESOURCES
6.1. Elected representatives in municipalities and county councils
As written above, the assembly in every municipality decides how many mem-
bers the assembly shall have. Depending on the population in the municipality,
there are some minimum levels. However, totally there are approximately 46,000
political assignments in the 290 municipalities and 3,500 political assignments in
the 20 county councils and regions. This means that 1% of the adult population in
Sweden holds a political assignment in a municipality or county council. Most of
those holding elected office at local and regional level are not full-time politicians.
They carry out their political work alongside their ordinary jobs.
In local government assemblies, 42% of the councillors are women and 58%
are men. In the county council assemblies, 47% are women and 53% are men.
Approximately half the councillors in local government councils and county
council assemblies are between 50 and 65 years old. Only 5% are between 18
and 29 years old and close to 10% are older than 65.12
6.2. Employment in municipalities and county councils
Overall, municipalities and county councils employ more than one million
people, corresponding roughly to 25% of total employment in Sweden. Mu-
12
See http://www.skl.se/web/Fakta_om_lan_och_kommuner.aspx
649
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nicipalities employ approximately 760,000 people and county councils em-

ploy around 250,000, almost 11% of a total Swedish population of approx.
9,300,000 people. Women represent just over 80% of the total employment
figure for municipalities and county councils. Some of the employees work as
civil servants, other employees work in some other field where the municipal-
ity has some kind of activity. From a labour law point of view, all employees
are treated like employees in the private sector, but depending on the position
and tasks performed, some groups are responsible for their acts under crimi-
nal law.13
The income of the local and regional authorities in Sweden is to a large

extent based on local income tax paid by the residents. The 1974 Instru-
ment of Government contains constitutional safeguards to the taxation
rights of the local authorities. Municipalities, county councils and regions
are entitled to levy taxes in order to finance their activities. Taxes are lev-
ied as a percentage of the inhabitants’ income and the municipalities,
county councils and regions decide on their own tax rates. The average,
local tax rate is 30%. Approximately 20% goes to the municipalities and
10% to the county councils and regions. Tax revenues are the largest source
of income for Sweden’s and account for approximately two-thirds of their
total income.
Grants from the State are either general or targeted. General grants are paid
per inhabitant. Each municipality, county council or region can use this money
on the basis of local conditions, while targeted grants must be used to finance
specific activities, sometimes over a specific period of time.
However, there are major variations in the average income of the inhabit-
ants of Sweden’s municipalities, county councils and regions. The cost per
inhabitant, for providing the services to which they are entitled, also varies.
In order to ensure fairness, a system has been introduced with the aim of pro-
viding equitable conditions in all municipalities, county councils and regions.
The so-called local government equalisation system entails redistributing the
revenues of the municipalities, county councils and regions on the basis of
their tax base and level of expenditure. The equalisation system is managed
by the State.
Municipalities, county councils and regions also may charge users for their
services. A non-profit principle applies, however, which means that fees may
not be higher than the costs relating to the service concerned. If the municipali-
13
See http://www.skl.se/web/Antal_anstallda_i_landsting_2008.aspx
650
ties, county councils and regions are obliged to provide a service, they may
only charge for the service if specifically permitted to do so by law.14
The income of the local authorities in Sweden is better showed in this graph:
F
E
A
B
a. Taxes (local income tax), 68%,

b. General grants from the central government, 11%,
c. Targeted grants from the central government, 5%,
d. Charges and fees for different kinds of provided services, 7%, and
e. Rents and sale of products or assets, 4%.
f. Other revenue, 5%15
The activities in which local authorities spend their resources are:
a. Childcare and preschools, 13%,
b. Primary and secondary education, 25%,
c. Other education, 4%,
d. Elderly care, 19%,
e. Support for the physically and intellectually disabled, 10%,
f. Social services, 6%,
g. Industrial and commercial services, 6%, and
h. Other, 16%.16
14
See http://english.skl.se/web/Local_self-government.aspx and Anders Lidström: «Swe-
den: Party-dominated Subnational Democracy under Challenge?», in: The Oxford Handbook of
Local and Regional Democracy in Europe, Oxford University Press, Oxford 2011, pp. 261–281,
and Anders Lidström: Kommunsystem i Europa, Liber, 2003, pp. 26– 30.
15
See http://www.skl.se/web/Kostnader_och_intakter.aspx
16
See http://www.skl.se/web/Kostnader_och_intakter.aspx
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The income of the regional authorities (county councils and regions) is pre-
sented in this graph:
F
E
D
B A
a. Taxes (local income tax), 72%,

b. General grants from the central government, 6%,
c. Grants from the central government for pharmaceutical benefits, 10%,
d. Targeted grants from the central government, 2%,
e. Charges and fees for different kinds of provided services, 3%, and
f. Other revenue, 7%.17
As for regional expenses in Sweden:
a. Health and medical care, Hospitals etc., 80%,
b. Dental care, 2%,
c. Political activities, 1%,
d. Regional development, 2%,
e. Infrastructure, 5%, and
f. Pharmaceutical benefits, 10%.18
In Sweden, municipalities and county councils (or regions) are considered

to be legal persons. Therefore, they have the same right as any other legal or
physical person to enter into contracts or to own real estate or other properties.
17
See http://www.skl.se/web/Kostnader_och_intakter_1.aspx
18
See http://www.skl.se/web/Kostnader_och_intakter_1.aspx
652
In that respect there is no difference between «public» legal persons or «pri-

vate» legal persons.
It is also common that the municipalities or the county councils own compa-
nies. These companies are legally seen as private legal bodies and the same
rules apply. According to Chapter 3, Section 16, of the Local Government Act
municipalities and county councils may, by assembly decision, transfer the
management of a local government responsibility (for the conduct of which no
special procedure has been prescribed), to a limited company, a trading partner-
ship, an incorporated association, a non-profit association or a foundation. The
legal person does not have to be privately owned, it can also be owned by the
municipality or the county council (or the region). However, the management
of a local authority responsibility which includes the exercise of authority may
only be transferred if there is statutory support for so doing.
The municipality-owned companies operate in a lot of different areas,
usually electricity, water supply and waste water, garbage collection, real
estate management etc. One issue that is a little bit unique is the Swedish
tradition of municipal housing companies (MHC). The welfare system of
Sweden pronounces the right to decent housing for all citizens. On this basis
there are municipality owned, not-for-profit housing companies in almost
every municipality of the country. Today some 22% of the Swedish house-
holds live in this kind of housing. There are no restrictions for tenants to
have access to municipal housing dwellings; on the contrary, the goal has
always been social cohesion in an attempt to stimulate integration and to
avoid segregation. About 45% of these flats are owned by municipal housing
companies and about 52% are owned by private housing companies (at De-
cember 31 2006).
Where the subsidised provision of social housing often has been aiming at
providing a decent standard for poor and vulnerable households and other dis-
advantaged groups, the housing policy in Sweden for a very long time has
aimed at providing public-owned flats for a wide spectrum of households, in-
cluding many middle-income households. The municipal housing companies
are by law (the Public Housing Companies Act) given a social obligation to
provide good housing for all households. There is no upper income level for
those wishing to rent an apartment, and the public housing policy in Sweden is
to be seen as a part of the welfare system, where the housing is an element for
promoting social integration among different social groups. The task of provid-
ing flats is performed by municipal housing companies, and the households
rent the flats from these companies.19
19
See Tom Madell, «The framework of public services in Sweden», in: The changing legal
framework for Services of General Interest in Europe – Between competition and solidarity, Ed.
Markus Kravewski, Ulla Neergaard & Johan van de Gronden, T M C Asser Press, Hague 2009,
pp. 423–450.
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tom madell
It is also common that a municipality own a holding company that owns the
other companies in the municipality. There are about 1,600 municipal compa-
nies in Sweden and official statistic shows that more than 20% of such compa-
nies are owned by a municipal holding company – in 62 of a total of 290 mu-
nicipalities).
The citizens possibilities to bring law suits in courts against the

9.1.
action of local government
In Sweden, there are basically three types of courts: (a) general courts, (b)
administrative courts and (c) special courts. The general courts deal with crim-
inal and civil cases. The administrative courts deal with administrative appeal
cases, according to the Administrative Procedure Act and the special Municipal
Appeal. The special courts often require some kind of special competence. The
need for expert knowledge has lead to different types of specialised courts ei-
ther by the establishment of independent courts to hear certain types of cases,
or by directing certain types of cases to certain district courts to be handled with
or without technical experts as members of the courts.
The municipal appeal (laglighetsprövning) is a form of actio popularis and
is used to exercise a citizen control over decisions by the municipal administra-
tion on both local and regional level. Any member (resident or property owner)
in the municipality or county council concerned may call for this court control
within three weeks from the day on which a formal announcement of the deci-
sion has been made. The scope of control is limited to legal aspects of the deci-
sion made by the elected municipal bodies, and the administrative court may
not take into consideration aspects of the suitability of the decision or take ac-
count facts or circumstances that have not been invoked by the complainant
before the end of the appeal period.
The decisions adopted by the municipal administrative authorities are usu-
ally appealable according to special legislation and the procedure outlined in
the foregoing sectors is applicable. A citizen can make an administrative appeal
(förvaltningsbesvär) based on the Administrative Procedure Act. When an au-
thority has the competence to decide about matters of such importance, for in-
stance granting a service or prohibiting some activity, the authority is said to
exercise public authority and then special procedural rules are considered es-
sential to maintain the Rule of Law. If a party is dissatisfied with a decision, he
or she may have the opportunity to appeal against it. However, there is no gen-
eral right for any citizen to call for a re-examination of a decision. Instead, the
decision must have some connection to the complainant. According to the Ad-
ministrative Procedure Act, a decision may be appealed by the person whom it
concerns, if it has gone against her, if the decision is final and considered to be
654
of a considerable importance for her, personally, financially or otherwise indi-

vidually.
The primary feature of the relationship of the public sector with its citizens is
the right of administrative agencies to issue unilateral decisions that affect the
individual whether through the determination of an individual case or through
the adoption of general rules. To a certain degree, these powers are limited by
principles of due process designed to protect the individual. Thus, according to
the Legality Principle which follows from Swedish constitutional law, no public
body may act in a way that would violate the laws on which its actions are based.
In order to prevent the abuse of power and arbitrariness in public decision-mak-
ing, the Objectivity and Equality Principles in Swedish law also prohibit public
bodies from considering spurious circumstances or according a special treat-
ment to certain persons. Where a public body has discretionary power, the
Equality Principle also requires that there be consistency in its decisions.
Consequently, a public body is deemed to have acted inappropriately if it
has requested a benefit in return for its exercise of governmental authority with-
out having legal authorisation to do so. Because of this, a decision which in it-
self accords with the relevant statute or regulation can still be deemed a crimi-
nal abuse of power if it has been issued only after spurious conditions have
been satisfied. An example of such a situation is an application for a building
permit which is not approved until the applicant promises to contribute finan-
cial support to some municipal activity. The prohibition of abuse of power (dé-
tournement de pouvoir) also provides a certain protection against discretional
decisions that offend the rights of the individual and that public sector bodies
may make in areas where public law does not stipulate explicit rules. In this
sense, the prohibition of abuse of power is of relevance when public sector bod-
ies dispose over their assets or enter into contracts. Such a violation of the
principles of public law can constitute grounds to annul the decision and can
also lead to the voiding of a contract pursuant to private law principles.
Due to the structure of the Swedish court system, matters relating to e.g. a
contract, real estate or other private law issues between a municipality and an
individual may be heard in a general court.
9.2. The Ombudsman and other agencies
In Sweden, there are ombudspersons at central level with jurisdiction over

local and regional authorities. The function is called «Ombudsmen of Justice»
(Justitieombudsmannen, JO) or «the Parliamentary Ombudsmen». The ombud-
spersons are elected by the Swedish Parliament (Riksdagen) to ensure that pub-
lic authorities, who include local and regional authorities and their staff, com-
ply with the laws and other statutes governing their actions. The Ombudman
exercise this supervision by evaluating and investigating complaints from the
655
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public, by inspecting the various authorities and by conducting other forms of

inquiry that they initiate themselves.20
The legal basis of the Ombudsmen follows from the Instrument of Govern-
ment and from special legislation. The Institution has only one office, which
consists of four Ombudsmen, and it is located in Stockholm. The most impor-
tant aspect of the work of the Parliamentary Ombudsmen is to deal with com-
plaints from the public. This is because each citizen of a democratic country
should be entitled to request that the legality of the actions of public authorities
should be appraised by a competent body that is totally autonomous from the
government or from any other public agency. It is also important for every of-
ficial employed by the state or local authorities, to be aware that his or her ac-
tions may be subject to the Parliamentary Ombudsmen’s review and measures
invoked if these actions are erroneous in any way. The Act with Instructions for
the Parliamentary Ombudsmen regulates the handling of complaints. Each
year, the Institution receives some 7,000 complaints.
Anybody can submit a complaint to the Parliamentary Ombudsmen. In oth-
er words, complaints do not need to come from Swedish citizens. Even those
who have been arrested or committed for care are entitled to write to the Parlia-
mentary Ombudsmen.
The Ombudsmen’s inquiries concern mainly whether the way in which cas-
es and issues are dealt with complies with the law and other legislation, espe-
cially those that affect the rights and obligations of individuals in relation to the
community. The supervision exercised by the Ombudsman is therefore prima-
rily intended to safeguard the legal rights of individuals, mainly in connection
with the exercise of public authority. On the other hand, the Ombudsmen can-
not alter judgments or decisions. If a judgment or decision is felt to be unsatis-
factory, appeal can normally be made to some higher instance.
The Instrument of Government requires courts and public authorities, as
well as officials employed by the state or local authorities, to provide the Par-
liamentary Ombudsmen with any information and responses requested. If an
official in the public sector refuses to supply the material requested, regulations
about disciplinary measures may be invoked.
The jurisdiction of the central ombudspersons cover local and regional au-
thorities, but the function on local and regional level are also to some extent
covered by other actors. For instance, several boards or agencies can be said to
20
Sweden has had an Ombudsman Institution since 1809. At that time Sweden was ruled by
the King and therefore the Riksdag, which then represented the Four Estates, considered that
some institution that was independent of the King was needed in order to ensure that laws and
statutes were obeyed. For this reason it elected a Parliamentary Ombudsman and still continues
to do so. The first Ombudsman was appointed in 1810. Even though two centuries have now
elapsed, today the Parliamentary Ombudsmen still follow the basic principles that have applied
since then.
656
fill a role similar to that of the Ombudsman: consumer complaints boards, pa-
tient injury boards21 and anti-discrimination agencies,22 etc. These actors have
different functions depending of the issue at stake. In some cases, they can be
seen as mediators who seek friendly settlements, while in other cases they act
more like a Human Rights Watchdog, etc.
9.3. Other types of State control of municipal activities
In the areas where the municipalities or the county councils hold responsi-
bility for providing various types of public tasks, there are different authorities
that perform supervision or control over local activities. One important actor is
the National Board of Health and Welfare (Socialstyrelsen) which is a govern-
ment agency under the Ministry of Health and Social Affairs, with a very wide
range of activities and different duties within the fields of social services, health
and medical services, environmental health, communicable disease prevention
and epidemiology. In the field of social services, it can be mentioned that e.g.
the 1993 Law on Support and Service (lagen om stöd och service till vissa funk-
tionshindrade, LSS) is based on clear claimable rights for the disabled and com-
prehensive duties for the municipal authority in question. The rights regulated
in the LSS are assistance in various forms, aid resources, rehabilitation, serv-
ices and special living facilities. If the municipality does not execute the rights
in accordance with the law, it is possible for the National Board of Health and
Welfare to take the municipality to court and the municipality can be penalised
with a fine.23
The National Agency for Education (Skolstyrelsen) is responsible for the
control of childcare and education. The national Government and the Parlia-
ment specify goals and guidelines for preschool and school through the Educa-
tion Act (skollagen), curricula etc. The task of the Agency is to work actively
for the achievement of these goals. The Agency steers, supports, follows up and
evaluates the work of municipalities and schools with the purpose of improving
quality and the result of activities to ensure that all pupils have access to equal
education.24
Even if planning and building issues are regulated by law, building and
planning is to be seen predominantly as a local matter. The County Board
21
See http://www.pff.se/Information-in-English/.
22
The objective of the Anti-Discrimination Agency’s activities is to strengthen anti-discrim-
ination work at the municipal and regional level, to raise visibility, influence and change the
discriminatory structures and thereby prevent and combat the various forms of discrimination
and to help streamline the application of discrimination legislation.
23
See http://www.socialstyrelsen.se/english and prop. 2008/09:160, Samordnad och tydlig
tillsyn av socialtjänsten, and SOU 2007:82, Samordnad och tydlig tillsyn av socialtjänsten.
24
See the National Agency for Education web site, http://www.skolverket.se/sb/d/353.
657
tom madell
(Länsstyrelsen) does oversee the municipalities during the planning process,

but normally this is done through counselling. An individual can report to the
county if he or she considers that a municipality is not performed the duties
under the Planning and Building Act. The County Board will be handling the
case and notify the municipality about their view, but other sanctions is lacking.
A member in the municipality can make a municipal appeal concerning plan-
ning decisions to the administrative court. Decisions concerning building etc.
can be taken to court by a citizen.
When it comes to the local government’s commercial activities, the Swedish
Competition Authority (Konkurrensveket) is working to safeguard and increase
competition and supervise public procurement. The supervision activities are
prioritised with an orientation towards illegal direct award of contracts. In this
sense, it can be mentioned that the Swedish Public Procurement Act give the
Swedish Competition Authority the possibility to take cases of illegal direct
award of contracts to court.25
As stated above, the 1974 Instrument of Government, one of the four pillars
of the Swedish Constitution, contains some constitutional safeguards for the
protection of the local self-government. According to Chapter 14, Article 3, the
legislator needs to take into account the principle of proportionality if there are
any changes proposed that might affect the local self-government, while Article
4 gives a constitutional right to taxation. Also Chapter 1, Section 1, of the Local
Government Act states that the municipalities and county councils attend to the
matters indicated in the Act or in special regulations, proceeding on principles
of democracy and local self-government. Since the Swedish municipalities and
county councils are funding most of their activities by the income tax from the
citizens and the dependence of money from the central government in a com-
parative perspective is low, Sweden may be said to have a rather strong protec-
tion of local self-government.
Local and regional authorities in Sweden are influenced by the European

Union in many different ways. Projects across the country are co-financed by
EU structural funds, and this demonstrates how the EU co-operates with mu-
nicipalities, county councils and regions in community development.26 When
25
See http://www.kkv.se/default____218.aspx.
26
The facts and figures are taken from http://english.skl.se/web/Local_government_and_
the_EU.aspx.
658
operating as supervisory bodies, local and regional authorities apply Swedish

law that follows the European acquits. Food safety, rules on water quality and
animal welfare are a few examplesSwedish municipalities, county councils and
regions are important employers, and are bound by common rules governing
working hours and the working environment. The European level also plays a
role in the production of services, for instance when inviting tenders. EU legis-
lation on public procurement and competition forms an integral part of such
activities. Estimates show that approximately 60% of the issues dealt with by
municipal and county council assemblies are influenced, directly or indirectly,
by European funding or decisions taken by the EU.
Municipalities, county councils and regions in Sweden play an active role in
a number of organisations at European level, with a view to influencing the
outcome of important EU decisions. The Assembly of European Regions
(AER) has 14 Swedish county councils and regions among its members, and
ten Swedish coastal regions attend the Conference of Peripheral Maritime Re-
gions (CPMR). The three largest cities in Sweden Stockholm, Gothenburg and
Malmö are part of the Eurocities network, while a number of medium-sized
towns are members of Eurotowns. Swedish municipalities, county councils and
regions are also represented by an office in Brussels.
The Swedish Association of Local Authorities and Regions, SALAR, plays an
active role in a number of different platforms and organisations on European and
international level. In the EU Committee of the Regions, Sweden is represented by
politicians elected to municipal, county council and regional assemblies. The
Committee is an advisory body and an important political channel to influence
decisions taken by the Commission, the European Parliament and the Council of
Ministers. The Employer’s organisation CEEP, as well as the Council of European
Municipalities and Regions (CEMR) are other important platforms for SALAR.
The Swedish Association of Local Authorities and Regions is also a member of
United Cities and Local Governments (UCLG) and the Congress of Local and
Regional Authorities of Europe (CLRAE) within the Council of Europe.27
Due to the system of municipal appeal, there are a huge number of cases
concerning the limits of the local self-governance. One also should bear in
mind that decisions concerning social services and other public services can
also be appealed. This fact triggers a huge volume of administrative appeal liti-
27
The facts and figures are taken from http://english.skl.se/web/European_and_worldwide_
co-operation.aspx.
659
tom madell
gation. On top of that, every year there are many court cases concerning public
procurement and contractual questions that are tried in the general courts. Thus,
it is more or less impossible to mention just a few important landmark cases.
(A) Books in English
Lidström, Anders: Sweden: Party-dominated Subnational Democracy under

Challenge? in: The Oxford Handbook of Local and Regional Democracy in
Europe, John Loughlin, Frank Hendriks & Anders Lidström (Eds.), Oxford
University Press, Oxford 2011, pp. 261–281. An English up-to-date publi-
cation that gives a good description of the current situation in Sweden
Madell, Tom: Chapter 20; «Sweden», in: The Changing Legal Framework for
Services of General Interest in Europe – Between Competition and Solidar-
ity, Markus Krajewski, Ulla Neergaard & Johan van de Gronden (Eds.),
T·M·C·Asser Press, The Hague 2009, pp. 423–450.
Häggroth, Sören; Kronvall, Kai; Riberdahl, Curt & Rudebeck, Karin: Swed-
ish Local government; Traditions and Reforms, The Swedish Institute, 3rd
Ed., Stockholm 1999, 122 pp. An older general publication concerning
Swedish local government.
(B) Books in Swedish

Bohlin, Alf: Kommunalrättens grunder, Norstedts, 5th Ed., Stockholm 2007
Bohlin, Alf: Kommunallagen – Kommentarer och praxis, Sveriges Kommuner
och Landsting, Stockholm 2006
Lindquist, Ulf: Kommunala befogenheter, Norstedts, 6th Ed., Stockholm 2005
Indén, Tobias: Kommunen som konkurrent; Kommunalrättsliga befogenheter
och konkurrensrättsliga begränsningar, Iustus, Uppsala 2008 (The Munici-
pality as a Competitor – the Competences of the Municipalities and the Re-
strictions in the Competition Regulations, with an English summary)
Collective book: Den nordiska välfärden och marknaden – Nordiska erfaren-
heter av tjänster av allmänt intresse i en EU-rättslig kontext, Tom Madell,
Tarjei Bekkedal & Ulla Neergaard (Eds.), Iustus, Uppsala 2011.
(C) Law reviews

In Sweden there is no law review specialising on local or regional government
topics. However, articles concerning local government are usually published
660
in: Förvaltningsrättslig tidskrift (Public Law Journal), http://www.for-

valtningsrattslig.org/
General legal periodicals:

– Svensk Juristtidning (Swedish Law Journal), http://www.svjt.se/
– Juridisk tidskrift (Swedish Law Review), http://www.jt.se/
– Europarättslig tidskrift (European Law Review), http://www.ert.se/.
Sweden’s official website: http://www.sweden.se/

Information on the Swedish central government, the different ministries and the
government offices of Sweden can be found on http://www.sweden.gov.se/
sb/d/573 and an English translation of the 1991 Local Government Act can
be found on http://www.sweden.gov.se/sb/d/2008/a/29535.
The Swedish Association of Local Authorities and Regions (SALAR): http://
www.skl.se/web/Hem.aspx (the Swedish version), http://english.skl.se/
web/english.aspx (the English version).
Information on county councils and regions: http://www.oultwood.com/local-
gov/countries/sweden.php
Information on the County Administrative Boards: http://www.lst.se/lst/en/
Other important links concerning municipalities, county councils, regions, mu-
nicipal organisations and research institutes: http://www.perjol.net/kom-
muner/komsve.html
661
Chapter 27:
LOCAL GOVERNMENT IN THE
UNITED KINGDOM
Chris HIMSWORTH
1. BRIEF HISTORICAL EVOLUTION OF LOCAL GOVERNMENT
In the United Kingdom, an essential backdrop for any study of local govern-
ment1 is provided by three principal features of the UK constitutional order.
Although formally described as unitary, the United Kingdom is often also de-
scribed as a «union state»– a term which captures the idea that it is made up of
four countries2 – England, Scotland, Wales and Northern Ireland – which retain
territorial, legal and cultural distinctions of their own.
For local government, this has meant that, even though supreme legislative
authority in the United Kingdom is retained by the Westminster Parliament in
London, that Parliament has frequently made separate legislative provision (es-
pecially for the structure of local government) for the different countries (dis-
tinguishing, in particular, between combined provision for England and Wales
on the one hand and then separate provision for each of Scotland and Northern
Ireland). Secondly, the defining characteristic of the UK constitution is that it is
«unwritten». There is no single ultimate documentary source which defines all
institutions and procedures. There is no constitutional court. There is no consti-
tutional provision (and certainly nothing which is entrenched against parlia-
mentary amendment) for local government.
And, thirdly, since 1999, a pattern of asymmetric arrangements for devolu-
tion has been instituted in respect of Scotland, Wales, Northern Ireland, and, to
1
In UK materials in general, the term «local self-government»is rarely encountered. The
idea of democratic (and autonomous) local authorities is captured by the simpler term «local
government». In this chapter, however, both terms are used more or less interchangeably.
2
Although these may also be described as «regions» (especially in circumstances where
comparison with other states is involved), that terminology is unsatisfactory. It ignores some re-
gional claims to nationhood.
663
chris himsworth
an extent, Greater London.3 This has meant, in particular, that legislative com-
petence in respect of local government in Scotland has almost entirely passed
to the Scottish Parliament4 and executive competence has passed to the Scottish
Government and to the Welsh Assembly Government.
Within this general constitutional framework, the period since the late
19th century has seen the emergence of democratic local government, struc-
tured somewhat differently in, on the one hand, England and Wales and, on
the other hand, in Scotland – initially distinguishing between rural areas
(with the principal unit, the county) and urban areas (cities, boroughs
(burghs)). During the twentieth century, there were significant reorganisa-
tions of local government, producing the patterns of local authorities de-
scribed below. In comparative European terms, the United Kingdom may be
grouped with those other northern/Scandinavian countries in having local
authorities with relatively large populations5 and with a relatively large
range of competences.
The early years of the 21st century have seen UK local government having
to respond to new threats to its autonomy, especially in the light of the global
financial crisis and changing conceptions of the proper role of local govern-
ment vis-à-vis local service provision by other (sometimes private) means. In
the closing years of the Labour government (themselves a period of substantial
legislative activity6) the constitutional position of English local government
was substantially reviewed by the Communities and Local Government Com-
mittee of the House of Commons.7 In 2010, the incoming Conservative and
Liberal Democrat Coalition government had a commitment (for England) to
«promote the radical devolution of power and greater financial autonomy to
local government and community groups»8 and this has been given expression
in the substantial Localism Bill currently proceeding through the UK Parlia-
ment. After the elections to the Scottish Parliament and the National Assembly
for Wales in May 2011, new local government initiatives are to take place in
those parts of the country.
3
Deriving from the Scotland Act 1998, the Government of Wales Act 1998, the Northern
Ireland Act 1998 and the Greater London Authority Act 1999. Northern Ireland will be largely
excluded from this study, in part because devolution under the 1998 Act has not yet been fully
implemented. Northern Ireland is also excluded from the coverage of the European Charter of
Local Self-Government (the «Local Charter»), by the device of excluding its councils by a dec-
laration made under Article 13. See below.
4
The same position may follow soon in Wales if the National Assembly for Wales is given
primary legislative competences under the Government of Wales Act 2006.
5
Recent CEMR statistics show the average population of UK local authorities as over
151,000, compared with an EU average of 5,500.
6
See eg the Local Government and Public Involvement in Health Act 2007 (the «2007 Act»)
and the Local Democracy, Economic Development and Construction Act 2009 (the «2009 Act»).
7
The Balance of Power: Central and Local Government HC 33 (2008-09).
8
The Coalition: our programme for government (2010).
664
local government in the united kingdom
As mentioned, the United Kingdom is a country which, in contrast with

many others, has shown considerable flexibility over time with the structuring
of its systems of local government. In particular, there has been no continuing
protection afforded to the smallest authorities in the way that other systems
have preserved the existence of their smallest communes or municipalities. Lo-
cal sensitivities about levels of local government at the parish and village level
were overridden9 in the early 20th century and the centuries-old allegiance to
counties has, in most areas, also been swept away.
There has been a declared preference for an attachment to ideas of efficien-
cy and economy which has, in successive reorganisations, generally produced
reforms in the direction of larger, rather than smaller, authorities but with ex-
perimentation, over time, with both all-purpose, single-tier systems and, on the
other hand, two-tier systems. The history of all the reorganisations of the 20th
century cannot be told here but the outcomes, in the shape of the current struc-
tures, need to be briefly described and, because of their greater simplicity, it is
easiest to start with Scotland and Wales.10
In Scotland, replacing, from 1996, an earlier system of (largely) two-tier lo-
cal government (of regional and district councils), there are now 32 councils
which are all-purpose authorities, save that councils combine with others to
form joint boards in eight areas with responsibilities for (a) police and (b) fire
and rescue services. The adoption of a single pattern of authorities across Scot-
land means that some have a predominantly urban aspect (including the coun-
cils for the four biggest cities) whilst others are predominantly rural. Wales,
again replacing earlier two-tier local government, has a similar pattern of all-
purpose authorities. There are 22 such councils which, as in Scotland, are
sometimes mainly urban but, elsewhere, mainly rural. Fire and police services
are again delivered on a joint basis.
The outcome of nearly a century of reforms in England has been more com-
plex. Leaving London on one side,11 England presents a picture which divides
the country into three types of provision.
First, there are six metropolitan areas in which, until 1986, there were two-
tier systems, but, since then, there have been (in total 36) all-purpose metro-
politan councils. Secondly, in many of the remaining areas of the country, there
9
Parish councils in England (and community councils in Wales) have retained very minor
local functions – but not as «principal local authorities». In Scotland, community councils have
only a consultative function.
10
There are 26 local councils in Northern Ireland. There was a recent (but unimplemented)
proposal to reduce the number of authorities to 11.
11
See below.
665
chris himsworth
are «unitary» all-purpose authorities which have been formed12 through the
merger of authorities in previously two-tier areas. There are 55 such unitary
authorities. And, thirdly, there are other non-metropolitan areas where two-tier
government has been retained.13 There are altogether 27 such upper-tier «shire
county» local authorities and, within their areas, a total of 201 lower-tier dis-
trict councils. It will be evident that, London and the metropolitan areas apart,
there are, as in Scotland and Wales, no clear differentiations between urban and
rural areas – plainly the unitary authorities and the district councils may include
both – although the shire county upper-tier authorities may have a predomi-
nantly rural character.
As already indicated, in the absence of a written constitution, there can be

no formal overarching «protection» for, or entrenchment of, local government
in the UK constitutional order. Historically, however, democratic local govern-
ment has emerged as a strong constitutional characteristic which has, in prac-
tice, been largely recognised and given political and legislative protection by
successive UK governments and legislatures, even if, in most periods, there has
been friction between central governments and local authorities over issues
such as the funding of local government. Whether or not always recognised in
the practice of central governments, the idea of a central-local «partnership»
has been prominent in their rhetoric.
Legislative competence for local government has been substantially affect-
ed, since 1999, by the devolution arrangements made by Acts of the UK Parlia-
ment passed in 1998. Thus, for England and Wales, legislative competence re-
mains with the UK Parliament and it is in Acts of that Parliament that all
primary legislation affecting the structure of local government, together with its
powers and its financing, is to be found, although provision has already been
made for the future transfer of this competence in respect of Wales to the Na-
tional Assembly for Wales. The general tradition in the United Kingdom has
been for legislation making provision for the general structure of local govern-
ment and for the composition and operation of local authorities to be made in
Local Government Acts and the current legislation remains the Local Govern-
ment Act 1972 (the «1972 Act»)(as heavily amended subsequently). That Act
also made outline provision for the competences of local authorities and for
their financing.
However, it has also been the UK tradition to embody most substantive
provision in respect of local authority functions in separate (sectoral) legisla-
12
In many cases, under procedures laid down by the 2007 Act.
13
In some cases, the two-tier arrangements were protected by the Local Government Act
2010.
666
tion. The functions of local authorities are specified in detailed Acts of Parlia-
ment (and, in some measure, in delegated legislation made by ministers under
those Acts) related to different areas of activity. Thus, the Education Act
1996, the Town and Country Planning Act 1990, the Local Authority Social
Services Act 1970, the Highways Act 1980 (all as much amended), along
with many others, make provision in their own sectors. The principal finan-
cial legislation is to be found in the Local Government Finance Acts 1988 and
1992 (as amended), although the core local authority borrowing powers are,
for instance, to be found in the s 111 of the 1972 Act. The power to make
delegated legislation (including, for instance, the power to make annual fi-
nancial grants to local authorities) which, for England, is in the hands of UK
ministers, has, since 1999, been the responsibility of the Welsh Assembly
Government.
Within the English system of local government, the London area has always
been treated rather specially.14 For the most part, the general local government
legislation has applied but the structure of local authorities has been different.
From 1889 to 1965, the London County Council was the principal local author-
ity. From 1965, however, London joined certain other large metropolitan areas
of England by having a modified form of two-tier government. The Greater
London Council exercised strategic responsibilities whilst the London Bor-
oughs provided most services.
In addition the Inner London Education Authority was a joint education
authority for the 12 inner boroughs until 1990. The GLC, along with the other
metropolitan councils, was, however, abolished in 1986 but a special form of
government for London was once again created under the Greater London Au-
thority Act 1999, with a structure, this time, unique to the capital with a di-
rectly elected council and also a directly elected mayor) undertaking strategic
decision-making for the capital, and the 33 London Boroughs discharging other
local government functions.
In Scotland, the whole of legislative competence for local government has
passed to the Scottish Parliament under the Scotland Act 1998. Thus, the Local
Government Scotland Act 1973 (the «1973 Act») which was passed by the UK
Parliament survives as the principal statute along with the Local Government
etc (Scotland) Act 1994 but these have been amended by the Scottish Parlia-
ment in, for instance, the Scottish Local Government (Elections) Act 2009.
Equally the Scottish provisions in the Local Government Finance Act 1992 are
still largely operational.15 In the functional sectors many UK Acts have been
amended and/or replaced by Acts of the Scottish Parliament.
14
Even more special is the continuing existence of the tiny («square mile») «City of Lon-
don» area with its City of London Corporation (including an elected Court of Common Council).
The Corporation does undertake very limited functions within its area.
15
But amended by eg the Debt Arrangement and Attachment (Scotland) Act 2002.
667
chris himsworth
In this chapter, specific attention must be given to the European Charter of

Local Self-Government16. If there are no constitution-derived guarantees for lo-
cal self-government in the United Kingdom, the formal contribution of the
Charter within the United Kingdom’s legal systems is also quite muted. The
United Kingdom was, in any event, a relative latecomer to signature and ratifi-
cation of the Charter. UK representatives at the Charter’s drafting stages had
been active participants in the process – although, it has to be conceded, often
with a view to amending the draft provisions in the direction of compatibility
with UK practice and to the introduction of qualifying terminology into Charter
provisions, making those provisions more flexible and less demanding. But,
from the opening of the Charter for signature in October 1985, successive
(Conservative) governments resisted signature and ratification by the United
Kingdom. Only with the election of the Labour government in May 1997 came
signature of the Charter (one of that government’s earliest acts) in June. Ratifi-
cation followed in 1998. In the White Paper which accompanied ratification,17
it was stated that the benefits to the United Kingdom of being a party to the
Charter derived, firstly, from its position as a supporter of the principles of the
protection of human rights and of democratic self-Government which are fun-
damental to the purpose of the Council of Europe and, secondly, from the value
of local government as providing local democratic leadership to communities
and as securing the provision of public services. It was also affirmed that the
Charter enshrined basic principles already reflected in the UK system of local
democracy.18 It was for this reason, the government said, that the United King-
dom was not going to have recourse to Article 12 of the Charter to restrict the
scope its application.
Thus, all the Charter’s substantive provisions are binding on the United
Kingdom. On the other hand, the United Kingdom has used Article 13 to re-
strict the range of authorities covered by the Charter to local authorities in Eng-
land, Wales and Scotland. It has no application to «regional» authorities such
as the Scottish Parliament, the National Assembly for Wales or the Greater
London Authority. Perhaps of greater significance, the United Kingdom’s stip-
ulation under Article 13 excludes local councils in Northern Ireland.19 Thus, the
Charter does not apply to a significant element of the United Kingdom’s terri-
tory – a phenomenon perhaps unique across Europe?
16
The United Kingdom has also signed but not yet ratified the Additional Protocol on the
Right to Participate in the Affairs of a Local Authority.
17
Explanatory Memorandum on a Council of Europe Convention on Local Self-govern-
ment, Cm 3884 (1998). The United Kingdom was the subject of a monitoring investigation at the
time of signature and ratification – resulting in Congress Recommendation 49 (1998) which
made a number of criticisms of, inter alia, central powers to restrict local spending, intrusion into
local authority affairs on grounds of securing «best value», and the weak status of the Charter in
UK law.
18
Ibid. paras 8,10.
19
Also the Council of the City of London. See note 00 above.
668
As a broadly «dualistic» country in terms of its adherence to international

treaty obligations, the United Kingdom has not, by its ratification of the Char-
ter, incorporated its terms into domestic law. Nor has there been any UK legis-
lation directly incorporating those terms. As implied in the ratification docu-
ment, it has to be assumed that the United Kingdom complies with Article 2 of
the Charter by ensuring the recognition of the principle of local self-govern-
ment in domestic legislation through the terms of relevant existing statutes.
This lack of express incorporation of the Charter does not mean, however, that
the courts may never take account of its terms. There is a general presumption
that, at points where domestic law is ambiguous, the terms of international trea-
ties such as the Charter may be invoked to assist in the interpretation of the law.
However, in the one case20 where an attempt was made directly to call in aid the
Charter’s terms, it proved to be of little assistance. The case arose out of a chal-
lenge by a local authority to procedures being taken by the Secretary of State
(in advance of the passing of the 2007 Act ) to require it (with others) to become
part of a new unitary authority. The challenge failed in the English Administra-
tive Court and then in the Court of Appeal. One of the (lesser) grounds on
which the local authority relied was the contravention of Article 4(4) of the
Charter, requiring that local authority powers «may not be undermined by an-
other, central or regional, authority except as provided for by law».
It was argued that the preparatory steps taken by the minister towards reor-
ganisation created a blight over the workings of the councils affected. Along
with the local authority’s other arguments, however, the Charter argument was
rejected at both levels.21 The courts were clear that the Charter was not a part of
domestic law but might be used as an aid to statutory construction or perhaps as
a guide to common law development.22 However, at first instance, Underhill J
thought the question of whether the minister’s procedures under challenge «un-
dermined» the local authorities was «too vague to be justiciable». In the Court
of Appeal, Carnwath LJ found it unclear which legal rule could be better inter-
preted by use of the Charter. «At most, perhaps», he said, «the Charter empha-
sises the need for central government to tread warily in this area, with due re-
spect for the democratic role of local government. But I would regard that as a
principle already embedded in the common law».23
In 2011, the new Political and Constitutional Reform Committee of the

House of Commons has undertaken an interesting inquiry into «Prospects for
Codifying the Relationship between Central and Local Government». In par-
20
R (Shrewsbury and Atcham Borough Council) v Secretary of State for Communities and
Local Government [2007] EWHC 229 Admin (Administrative Court) and [2008] 3 All ER 548
(Court of Appeal).
21
[2007] EWHC 2279 para 26; [2008] 3 All ER 548.
22
The Court of Appeal cited Derbyshire CC v Times Newspapers Ltd [ 1993] AC 534 at 551.
23
Citing Secretary of State for Education and Science v Tameside MB [1977] AC 1014 at
1047-1048.
669
chris himsworth
ticular, the prospects for «incorporating» the Charter have been considered. Its
report is awaited with much interest.

AUTHORITIES
Often expressed as a means of respecting the «ultra vires» rule, local au-
thorities in the United Kingdom, in common with other statutorily created bod-
ies, must have statutory authority (ie the authority of an Act of Parliament24) for
everything they do. This is a manifestation of the UK version of the «rule of
law» – public bodies may do only those things which they are legally author-
ized to do. If they act in breach of this rule, they may be subject to legal action,
sometimes in the form of proceedings to prevent unlawful expenditure on the
unlawful project. There is no general assumption that local authorities may,
simply in their capacity as such, undertake «local» projects. For everything
they do, local authorities must be able to point to the requisite authority in the
statute and, although some statutory powers and duties may be expressed in
rather general terms, the tradition is for Parliament normally to confer such
powers and duties with a high degree of specificity.
Two qualifying remarks should be made. In the first place, statutory powers
do not always have to be conferred in express terms. Sometimes powers may be
implied from the text of other provisions – a position strengthened by statutory
provisions which enable local authorities «to do anything (whether or not in-
volving the expenditure or disposal of money or the acquisition or disposal of
any property or rights) which is calculated to facilitate, or is conducive or inci-
dental to, the discharge of any of their functions».25
The second point is that, although the need for statutory powers does mean
that no inherent power of «general competence» can be presumed, steps have
been taken to confer a statute-based equivalent. There have been two stages.
The first, of long standing, was the power of local authorities to incur expendi-
ture up to a (small) statutorily-defined maximum amount on anything «which
in their opinion is in the interests of and will bring direct benefit to, their area
or any part of it or all or some of its inhabitants».26 This has been accompanied
by more recent powers «to promote well-being»– the promotion or improve-
ment of the economic, social and environmental well-being of their area.27 And
now, most recently, for England, a new «general power of competence» is be-
ing conferred «to do anything that individuals generally may do».28
24
Which includes an Act of the Scottish Parliament.
25
1972 Act s 111; 1973 Act s 69.
26
1972 Act s 137; 1973 Act s 83.
27
Local Government Act 2000 s 2; Local Government in Scotland Act 2003 s 20.
28
Localism Bill cl 1.
670
As to the conferring of powers and duties on local authorities for the provi-
sion of particular services, the UK tradition is not to prescribe a «list» of subject
areas and then to flesh out that list with more specific provision but instead,
once the local authorities have been established,29 sectoral legislation is used
directly to confer powers on the authorities which it identifies.30 Thus, in prin-
ciple, in those areas with all-purpose authorities, the legislation simply identi-
fies those authorities (the Scottish and Welsh councils and, in England, the
unitary authorities and the metropolitan councils) and then confers all powers
upon them. In those parts of England with a two-tier structure, the functions are
distributed between the two tiers. The upper-tier authorities deal with school
education, libraries, personal social services, strategic planning, transport and
consumer protection. The lower tier authorities are responsible for, for instance,
housing, local planning, licensing and cemeteries.
In addition to the powers to deliver specific services, local authorities are
given some more general powers, including those to recruit staff and to acquire
and manage property.31 All local authorities also have byelaw-making powers
– both general («for the good rule and government» of their area32) and in re-
spect of some specific forms of service provision.
Although the arrangements for the internal structuring of local authorities in

the United Kingdom have been revised in recent years, the best approach to a
general understanding almost certainly begins with a review of the traditional
position. At the core – a core which endures – of the traditional British local
authority is the directly elected council. In the first instance, statute confers
virtually all powers exercisable within a local authority upon the council itself.
Councils have all been elected according to the «first-past-the-post» system,
save that, since elections held in 2007, Scottish councils have been elected by
the «single transferable vote» system of proportional representation. In those
authorities elected on the first-past-the-post system, council areas are divided
into constituencies (wards or divisions)33 to which, normally, a single member
is elected, in elections which take place every three or four years, save that, in
29
See Section 2 above.
30
Of much greater significance in earlier times is the power given to local authorities to
promote their own Bills in Parliament (known as «private legislation») in which new powers may
be conferred, over and above powers conferred by general legislation, on an individual local
authority. Special parliamentary procedures apply.
31
Derived initially from the 1972 Act ss 112,120; and the 1973 Act ss 64, 70. See also Sec-
tions 6 and 8 below.
32
1972 Act s 235; 1973 Act s 201.
33
Boundaries are subject to review by independent local boundary commissions for Eng-
land, Scotland, Wales.
671
chris himsworth
some English authorities, wards are represented by two or three members,

elected (in each, in turn, for a period of two or three years) in elections held
every year.34
Total numbers of councillors per council are prescribed by statute according
to population. Almost all councillors, in the modern system, are, in practice,
elected by reference to their membership of a political party, with it frequently
being the case that no single party has overall control of the local authority and
coalition arrangements in some form are required.
The council retains a strong deliberative role and remains the body which
must make certain key decisions within the authority – including setting the
rate of council tax. It has always been the case, however, that, in the modern era
of local government, the weight of decision-making required that the making of
most decisions was delegated to (subject-defined) committees of the council
consisting mainly of councillors but sometimes also with co-opted members.
The tradition in local government was «government by committee», in which
those committees, acting under authority legally delegated to them, were the
decision-making bodies. They were bodies discharging the (mainly) executive
responsibilities of the authority. There were no separate executive bodies and,
for instance, in those (mainly urban) councils which had mayors (in Scotland,
provosts) those mayors were confined to chairing the council and carrying out
ceremonial functions on its behalf.
Starting from the time of local government reorganisation in the 1970s,
however, two stages of reform of internal structures within local authorities
have been undertaken. The first, requiring no statutory change, was the emer-
gence of the practice of a reduced number of local authority committees, the
emergence also of a senior policy and decision-making committee at the centre
of most authorities, and, subsequently, the emergence of a single «cabinet»
committee of decision-making councillors, with all other committees given a
«scrutiny» capacity in relation to the decisions and activities of that core com-
mittee.
For England and Wales, this (largely non-statutory) development was has-
tened by provision made in the Local Government Act 2000 which required35
that all authorities should adopt «executive arrangements» on one or another of
three different models36 – (a) (adopted by only a handful of authorities) a direct-
ly-elected mayor plus two or more councillors pointed to the executive by the
mayor; (b) a councillor of the authority elected as leader by the authority plus
two or more councillors appointed by either the leader or by the authority (the
most popular option); or (c) a directly elected mayor plus appointed manager (a
34
Part 2 of the 2007 Act provided mechanisms for councils to change to all-council elec-
tions.
35
As amended by the 2007 Act.
36
There was also the possibility of arrangements prescribed by the minister.
672
model scarcely used). For the adoption of either (a) or (c), a local referendum
was required. The Act provided for the delegation to executives of most func-
tions of the authority and also required the appointment of «overview and scru-
tiny» committees in all authorities. Also required was the preparation of a «con-
stitution».
The period of experimentation with «executive arrangements» has not been
a resounding success – a position now reflected in the terms of the Localism Bill
of the current UK coalition government. This would, inter alia, explicitly permit
(for England) a reversion to the «committee system» form of governance.
The Local Government Acts make much detailed provision about the trans-
action of business by councils and their committees. One important element of
that provision is that made for all (subject to limited exceptions) meetings to be
open to the public and for relevant documents also to be publicly available.37 In
addition, all local authorities are made subject to the Freedom of Information
Acts which require all public authorities to give access to members of the pub-
lic to information held by them.38
Because the United Kingdom has been a member of the family of countries
with relatively large and relatively powerful local authorities, inter-authority
co-operation has not been a widespread feature of the local government system.
Three observations should, however, be made. First, statutory powers for ena-
bling co-operation are nevertheless in place. In addition to powers to delegate
functions to committees, sub-committees and officers of their own authority,
councils are empowered to arrange for the discharge of their functions by an-
other local authority.39 And they may also establish joint committees.40 This is
sometimes done, for instance, for the provision of combined services in urban
areas. Quite separately, English local authorities are obliged to consult partner
authorities (and others) in the preparation of a local area agreement.41 Secondly,
ministers have certain powers compulsorily to establish joint boards which then
discharge the functions of the two or more local authorities included within the
arrangements. Current examples of these are the joint police boards (also fire
and rescue boards) established in many parts of the country. Thirdly, a more
recent, and quite separate, development has been the emergence, as a result of
financial pressures, of a willingness on the part of some local authorities to
share the services of certain of their administrative offices.
The opportunities available for local authorities to co-operate across the
board for purposes to their mutual advantage are reflected in the strong local
authority associations. These are organised on a «regional» basis to produce the
37
1972 Act Pt VA; 1973 Act Pt IIIA.
38
Freedom of Information Act 2000; Freedom of Information (Scotland) Act 2002.
39
1972 Act s 101; 1973 Act s 56.
40
1972 Act s 102; 1973 Act s 57.
41
2007 Act Pt 5.
673
chris himsworth
Local Government Association (for England), the Convention of Scottish Local

Authorities and the Welsh Local Government Association. All are very active
in the representation of their members’ interests and, in particular, in mediating
the relationship between the authorities and their respective central or regional
governments. They act both proactively and reactively.
6. HUMAN RESOURCES
The United Kingdom is one of those countries which creates no special legal
class or category of local authority employees. Local authority employees are
never referred to as «civil servants»– language which is confined to employees
of the state/central government, including employees of the devolved govern-
ments in Scotland, Wales and Northern Ireland. Nor is there a separate «local
government service» organised at the state (or regional) level. Instead local
authorities are given the statutory power to employ staff42 and then individual
local authorities, in principle, simply recruit staff and determine their pay and
conditions in the manner of private employers. Their employment relationships
are, again in principle, subject to the normal rules of employment law.
This general position has to be read subject to certain qualifications:
(a) In the first place, local authorities do tend to act collectively through bod-
ies related to the local government associations in the negotiation of sal-
ary scales and the general terms and conditions of service of employees.
(b) In some areas of local authority activity, there has been central or de-
volved government guidance on required staffing levels eg to achieve
prescribed school class sizes.
(c) Although this is (again) a declining feature of UK local government,
certain senior officials are statutorily required to be appointed to all lo-
cal authorities. All authorities are, for instance, required to appoint a
chief executive (head of paid service), a (chief) financial officer, a mon-
itoring officer (with a duty to advise councillors on the legality of pro-
posed actions), and a director of social services/social work.
(d) Although officers appointed under (c) are statutorily required, they are
recruited wholly without central government involvement. On the other
hand, the appointment of chief constables by police authorities does
also involve central or devolved government in that their appointment
is, in effect, subject to central consent.
(e) An important additional point to be made about local authority officials
is that, as noted in Section 5 above, with the exception of certain catego-
42
1972 Act s 112; 1973 Act s 64.
674
ries of decision, local authorities may formally delegate decision-mak-

ing powers to them.43
(f) And finally, since legislation dating from 1989,44 restrictions on en-
gagement in political activity are imposed on all higher grades of offi-
cial in local government (subject to a scheme of exemption).
The question of the funding arrangements for local government has, for many
years, been one of the most bitterly contested issues affecting local authorities in
the United Kingdom. In particular, the form that locally derived revenues should
take, together with the balance to be maintained between those revenues and
income in the form of central (including regional) grants have been contentious.
The question of overall levels of funding for local authorities has also been a
matter of dispute, as well as the extent to which the central government should
have the power to impose constraints on those funding levels. These are issues
which are made far more contentious because of the relatively extensive (and
expensive) functions conferred, in comparative European terms, on local au-
thorities. Such functions demand funding levels (from whatever source) which
constitute a significant proportion of overall public sector funding.
Local authorities in the United Kingdom are funded, in the main, from two
principal sources. The first (though not nowadays the most important in terms
of volume) is the locally determined council tax.
A brief historical note is, however, required. During the whole of the modern
period up to the late 1980s, the principal tax available to local authorities of all
types was the rate. This was a property tax levied at a locally determined percent-
age on a notional annual rental value of properties in the area of each authority. All
properties – whether domestic, commercial or industrial – were subject to a system
of property valuation which provided the basis on which the annual rate would be
levied. Although the rate had many real advantages as a source of local authority
income – especially its stability and its relative ease of collection and enforcement
– it also became, in the 1970s and 1980s, an unpopular tax. Based on property
values, it was insufficiently responsive to the actual incomes of domestic ratepay-
ers. The revaluation of properties came to be delayed because of the unpopular
consequences of raising values and, almost inevitably, levels of tax. Various alter-
natives were considered,45 including forms of local income tax, but these possi-
bilities suddenly gave way to the introduction, under Mrs Thatcher’s premiership,
of the community charge or, as it was popularly styled, the «poll tax».
43
1972 Act s 101 ; 1973 Act s 56.
44
Local Government and Housing Act 1989.
45
See eg the (Layfield) Report on Local Government Finance (1976).
675
chris himsworth
Non-domestic rates (ie principally on commercial and industrial premises)

continued, but the poll tax was imposed on all individual residents in domes-
tic properties – with effect from 1989 in Scotland and then from 1990 in
England and Wales. Certain concessions were available to those on low in-
comes, students, and some others, but very quickly, even before its full intro-
duction, the poll tax had achieved a degree of unpopularity which far ex-
ceeded that previously enjoyed by domestic rates. It too had a capacity for
perceived unfairness between different population categories but, more im-
portantly, it acted as a lightning rod in focusing all the accumulating resent-
ments against an increasingly unpopular government. The poll tax had to go
and, very rapidly, it did – to be replaced by the council tax,46 a tax imposed on
the resident owners of domestic properties. The amount of council tax paya-
ble varies according to the notional capital value (rather than the annual rent-
al value for the rates) of the properties, according to a scheme which divides
all properties into five broad «bands»– a device intended to avoid valuation
objections and disputes associated with the earlier system of individual valu-
ations for rates. Each year, the local authority determines the percentage lev-
el of council tax to be levied.
Alongside their income from the council tax (and very small amounts of
income which derive from locally imposed charges), local authorities also ob-
tain revenue from the continuing non-domestic rates and (very importantly, in
volume terms) from central grants (whether from the UK government for Eng-
land, or from the Scottish or Welsh government). Certain grants (eg especially
for police functions) are specific and «earmarked» but most of grant income is
in the form of a general grant (known as the revenue support grant) whose size
is calculated according to statutory formulae which take into account an author-
ity’s population but then with adjustments to allow for other indicators of rela-
tive need as well as levels of estimated revenue resources – principally income
from the council tax.
Two further aspects of the overall scheme are important. Firstly, in recent
years, non-domestic rate levels have been fixed (in the interests of «fairness» to
businesses) not by individual local authorities but by the relevant central or re-
gional government. That block of income has ceased to be «own income» in
Charter terms. Secondly the result of such a low proportion of local authority
income deriving from the council tax makes the creative use of the fixing of its
levels illusory – a position which has been hardened still further in Scotland.
There, a Concordat between the Scottish government and the local authorities
provides for a council tax «freeze» in return for certain increased spending flex-
ibilities. All Scottish local authorities have accepted the terms of the Concordat
and, in relation to them, it may fairly be said that, since virtually all of their
income derives from government grant, non-domestic rates (at a level fixed by
46
Local Government Finance Act 1992.
676
government) and the council tax (frozen by agreement with the government),
they have almost no remaining autonomous fiscal capacity.47
The quest for further reform continues. There have been substantial reviews
– in England,48 and in Scotland.49 In 2008, the Scottish government briefly pro-
posed the introduction of a form of local income tax (although at a single cen-
trally-prescribed rate).50 But, whilst the search for a replacement for the council
tax goes on throughout Great Britain, a lead proposal from the local govern-
ment side has been that non-domestic rates should be «repatriated» to the local
authorities, thus restoring a significant element of local decision-making.
For the most part, the capital projects of local authorities are funded by bor-
rowing rather than out of revenue funding, One primary source of borrowed
funds is a public body known as the Public Works Loans Board. In addition,
local authorities have, in recent years, sought to fund capital projects in partner-
ship with private bodies.
Just as in the case of human resources and the application in that sector of
normal employment law principles, the starting point in relation to the holding
and management of property and other assets is the initial statutory power and
then the application of private law principles. There is, in the United Kingdom,
no special category of «public property law».
Thus local authorities are empowered to acquire land.51 And this power is
used to acquire property (including land and buildings for administrative
purposes or for the purposes of specific services such as the provision of
schools and roads) and other assets such as road vehicles and necessary ma-
terials. Acquisitions are, as relevant, subject to the EU procurement and
competition rules.
Two other forms of special regulation apply:
(a) In the first place, local authorities have powers, subject to ministerial
consent, to acquire property compulsorily.52 There is a system of (mar-
ket value) compensation which applies, subject to appeal procedures.
47
It should also be noted that, in addition to these «voluntary» forms of restraint, there are
ministerial powers in both Scotland and in England and Wales to «cap» local expenditure thought
by ministers to be excessive. See Local Government Finance Act 1992 s 94(2) and Sched 7 and
s 52B.
48
The Lyons Inquiry into Local Government (2007).
49
Report on Local Taxation in Scotland (Burt) (2006).
50
A Fairer Local Tax for Scotland (2008).
51
1972 Act s 120; 1973 Act s 70.
52
1972 Act s 121; 1973 Act s 71.
677
chris himsworth
(b) Secondly, although local authorities are generally free to dispose of

property which they own, this is subject to two qualifying rules. The
first is that certain (very limited) categories of disposal are subject to
special procedures. The second is that all disposals are subject to a rule
that the best price be obtained.53
An important feature of the UK systems of local government has been the

absence of any direct equivalent of the institutions and procedures for the ad-
ministrative supervision and control of local authorities by officials of the cen-
tral government which are familiar in some other European countries. There
has been no equivalent of the system of «tutelage».
This does not at all mean, however, that the notion of external controls is
unknown in UK practice. In summary, such controls may be said to take the
following forms:
(a) Legal control by the courts
The courts may become involved in the review of local authority decision-
making in, broadly, two different ways. The first is that, in certain circum-
stances, a statute may make direct provision for an appeal to a court against a
local authority decision. This is a less common feature of the modern statute
book but is retained in limited areas – such as licensing, school choice and child
protection decision-making.
Much more prominent is the exercise by the courts (in England and Wales, the
Administrative Court as a part of the High Court and, in Scotland, the Court of
Session) of their inherent (ie not statute-derived) power of judicial review. Local
authorities (along with other public bodies) are subject to this supervisory jurisdic-
tion of the courts. The detailed rules are complex but, in principle, any person with
locus standi may challenge the validity of a local authority act or decision on the
grounds that, in one respect or another, that act or decision was ultra vires. Such a
challenge might, for instance, be brought by an individual directly affected or by a
minister or indeed by another local authority. The grounds for review may be sub-
stantive (that the local authority has no power to do what it has purported to do) or
they may be based on procedural error (including breach of the rules of natural
justice) or on grounds of irrationality. Of very great importance since the imple-
mentation (in 2000) of the Human Rights Act 1998 has been the possibility of
using a breach of Convention (ECHR) rights as the basis of challenge.
53
1972 Act s 123.
678
In combination, these options for judicial challenge are claimed to sustain

the operation of the rule of law and the observance of human rights in respect
of local authority activities.
(b) Financial control by external auditors reporting to ministers
In the modern era, the external audit of local authorities by auditors report-
ing (via, in England and Wales, the Audit Commission54 and, in Scotland, the
Accounts Commission) to ministers has been a form of supervision of great
importance. Audit has had three principal purposes. The first is to maintain
propriety in the accounting processes of local authorities. The second has been
(sometimes on the application of an affected individual) to investigate and
report on (with the possibility of final adjudication by a court) the validity of
a local authority act or decision with spending consequences. Historically, this
has been a mechanism not only for the supervision of the lawfulness of local
authority activity but also for the holding to account (and personal charging)
of individuals within a local authority in respect of unlawful expenditure for
which they were responsible. And, thirdly, there has, in recent years, been
bolted on to these more long-standing aspects a responsibility on auditors (and
the Commissions) to report on the achievement of «best value» objectives by
local authorities. In England there was a system of overall monitoring under
the banner of «Comprehensive Performance Assessment» and, from 2009,
«Comprehensive Area Assessment». The new coalition government has since
announced its abolition.
(c) Controls by ombudsmen on grounds of alleged maladministration
Ombudsmen are a relative newcomer to the British scene, with the arrival
(under the Parliamentary Commissioner Act 1967) of the Parliamentary Om-
budsman with a responsibility to investigate complaints from individuals of «in-
justice in consequence of maladministration» caused by the actions of ministers
and central departments. There quickly followed (in 1974 for England and Wales
and 1975 for Scotland) the creation of local ombudsmen with a similar remit in
respect of local authority acts and decisions and these ombudsman have had an
important role to play – sometimes in relation to major local authority decisions
and sometimes on very minor issues. Recently, there have been two principal
reforming developments. The first has been an expansion of the remit of om-
budsmen – in particular, to include a duty to scrutinise «service failure» in addi-
tion to maladministration and to enable them, in certain circumstances, to initi-
ate investigations themselves. And secondly, there has been some structural
54
Currently under threat of abolition.
679
chris himsworth
reorganisation of the offices of local ombudsmen. In Scotland and in Wales

these have been integrated into broader offices to create the Scottish Public
Services Ombudsman and the Public Services Ombudsman for Wales.
(d) Specific administrative controls by ministers or by other bodies

on their behalf
The fact that there has not been, in the United Kingdom, any comprehensive
system of central supervision or control of local authorities in the form of the
scrutiny of all their acts and the decisions (whether in advance of decision-
making or thereafter) does not mean that the UK central departments have had
no interest in (or power to intervene in) local authority decision-making. The
opposite has been true. UK local authorities have been given substantial re-
sponsibilities but, at the same time, this has meant that ministers, who retain an
overarching responsibility for sectors such as school education, social services
and transport, inevitably wish to retain some ability to steer the activities of the
local authorities to whom much formal responsibilities have been transferred.
This has led to forms of overlap and sharing of responsibilities – often de-
scribed, especially by ministers, as a form of «partnership».
It has, however, been an unequal partnership since ministers inevitably start
from a position of privileged access to the parliamentary process. It is within
their power to propose reforming legislation affecting the structures and re-
sponsibilities of local authorities. Then, within that statutory framework laid
down on their behalf by Parliament, the legislation gives ministers additional
powers to intervene in local authority business. The principal powers are:
(i) To make subordinate legislation (regulations etc.) determining the de-
tailed content of local authority powers and procedures.
(ii) In large measure, to determine the funding levels of local authorities.55
(iii) To consent (or not) to many forms of local authority decision-mak-
ing.56
(iv) To reconsider on appeal by affected individuals certain local authority
decisions, most prominently, planning decisions on applications to de-
velop land.
(v) To inspect the provision of a certain services – often through an arm’s
length intermediary (such as, in England, in relation to schools and
social services, Ofsted) – which is linked to more general powers to
request information from local authorities on their service provision.
55
See Section 7 above.
56
See eg byelaw approval and approval of compulsory purchase. See Sections 4 and 8 above.
680
(vi) In the last resort (a power rarely used), to investigate and report on the
failure of a local authority to perform its statutory duties and to require
action.
Although «protection» is the language of, inter alia, Article 10 of the Char-
ter, it is not familiar terminology in UK practice. On the other hand, what is
certainly familiar is the opportunity for a local authority, which feels that its
interests have been damaged or are threatened, to be able to bring an action in
the courts to protect those interests. The power to commence (and defend) legal
proceedings is statutorily conferred57 and may be used, for instance, against
ministers (eg to challenge an unfavourable distribution of funds or other hostile
measure) or against another local authority; to seek to restrain the activities of
an auditor or ombudsman.
Although some such actions may certainly have a «constitutional» aspect to
them, they do not, in the absence of a written constitution and a constitutional
court, have the same character as «constitutional protection» familiar in many
other countries.
Although all local authorities are, of course, very importantly affected by

the United Kingdom’s membership of the European Union – many of the func-
tions they discharge are, to some extent, performed in accordance with legisla-
tion whose original source is the European Union, local authorities do not have
any formally assured access to the EU law-making processes. The local author-
ity associations, however, are consulted by the relevant central (and regional)
government bodies when they are formulating the UK response to the EU leg-
islative proposals or the means of their transposition into the United Kingdom.
The associations are also able to intervene directly in Brussels. Local authori-
ties share with the devolved authorities the opportunity to nominate members
to the Committee of the Regions.
Two further points may be added:
1. Local authorities are frequently the vehicle for the distribution of EU
Structural Funds.
2. A newly proposed power in the UK coalition government’s current Lo-
calism Bill would enable ministers to impose on English local authori-
57
1972 Act s 222; 1973 Act s 189.
681
chris himsworth
ties, subject to certain procedural protections, an «EU financial notice»

in relation to an EU financial sanction imposed on the United Kingdom
(by the European Court of Justice) in circumstances where the minister is
satisfied that acts of the local authority caused or contributed to the in-
fraction of EU law for which the sanction was imposed.
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1

KB 223.
Brent LBC v Risk Management Partners Ltd [2011] UKSC 7.
Bromley LBC v Greater London Council [1983] 1 AC 768.
R (Shrewsbury and Atcham Borough Council) v Secretary of State for Com-
munities and Local Government [2007] EWHC 229 Admin (Administrative
Court) and [2008] 3 All ER 548 (Court of Appeal).
Secretary of State for Education and Science v Tameside MB [1977] AC 1014.
Books
Encyclopedia of Local Government Law (5 Vols).
Himsworth, C.: Local Government Law in Scotland (1995).
McFadden, J.: Local Government Law in Scotland (2008).
Journals
Local Government Studies (six issues per year).
UK and Devolved Governments:

http://www.communities.gov.uk/corporate/
http://www.scotland.gov.uk/Home
http://wales.gov.uk/?lang=en
http://www.northernireland.gov.uk/
682
Local Authority Associations:

http://www.lga.gov.uk/lga/core/page.do?pageId=1
http://www.cosla.gov.uk/
http://www.wlga.gov.uk/
http://www.nilga.org/home.asp
Research Institute:
https://member.lgiu.org.uk/Pages/default.aspx
Legislation (official site for Acts of the UK Parliament, Acts of the Scottish
Parliament and delegated legislation):
http://www.legislation.gov.uk/
683
SECRETARÍA DE ESTADO
PARA LA FUNCIÓN PÚBLICA
INSTITUTO NACIONAL DE
ADMINISTRACIÓN PÚBLICA
INAP ISBN 978-84-7351-417-0
P.V.P.
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(IVA incluido)

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Colección

Angel-Manuel Moreno (editor)

NATIONAL INSTITUTE OF PUBLIC ADMINISTRATION, SPAIN

FICHA CATALOGRÁFICA DEL CENTRO

Primera edición: Enero, 2012

Catálogo general de publicaciones oficiales:

Foreword, by Angel-Manuel Moreno . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

AUSTRIA: Anna GAMPER, PhD, is Full Professor at the Institut für

GREECE: Nikolaos-Komninos HLEPAS, Grad. in Law (Athens), PhD

LUXEMBOURG: Jean-Mathias GOERENS, PhD in Law, is the Honorary

tion and Regional Development. In 1991, he founded the Institute of Public

The present book seeks to provide a general overview of local government

the member states of the EU form a constitutional-political union in which liter-

pean Charter of Local Self-Government has become, undoubtedly, the most

The control and supervision of local authorities’ activities is probably the

ernment finances and projects, especially in the «cohesion countries» such as

1. BRIEF HISTORICAL EVOLUTION

Since 1849, Austrian municipalities have been recognized legally, including

making powers. This changing role of local government in multi-tier systems,

2. BASIC FACTS AND FIGURES

According to Art. 2, B-VG, Austria is a federal state that consists of nine

[Oberösterreich], Vienna [Wien], Vorarlberg). Article 116 B-VG stipulates

3. LEGAL FRAMEWORK OF LOCAL SELF-GOVERNMENT

To begin with, the Council of Europe’s Charter of Local Self-Government

capital of Vienna as both a Land and a municipality, to avoid the overlapping

(1) Local Government Acts:

as amended by LGBl 2005/90); Vorarlberger Gesetz über die Organisation der

(2) Town Statutes:

(3) Inter-municipal Associations Acts:

(4) Local Election Acts:

2009/27); Salzburger Gemeindewahlordnung 1998 (Salzburg Local Election

(5) Local Civil Servants and Contractual Employees Acts:

4. COMPETENCES, POWERS AND SERVICES OF LOCAL

It should be noted, however, that even within their autonomy, municipalities

5. BASIC ORGANISATION

declared unconstitutional by the Constitutional Court in 1993.29 The Federal

6. HUMAN RESOURCES

full-time professional or even an academic with legal or economic background.

7. LOCAL GOVERNMENT FINANCE

based on resolutions issued by the local council. Länder legislation determines

8. PROPERTY AND ASSETS

Each municipality is an independent economic entity. Pursuant to Art. 116

9. CONTROL AND SUPERVISION OF LOCAL AUTHORITIES

Although municipalities, within their autonomous sphere are not bound by

Individual measures taken by a municipality in its own sphere of compe-

10. PROTECTION OF LOCAL SELF-GOVERNMENT

According to Art. 119a para. 9 B-VG, each municipality is a party to the

11. LOCAL GOVERNMENT AND THE EUROPEAN UNION

pal associations between Austrian (!) municipalities that belong to different

12. SOURCES OF INFORMATION: TO KNOW MORE

12.1. Constitutional Court case-law (www.ris.bka.gv.at)

12.2. Selected bibliography on local government

Österreichische Verwaltungswissenschaftliche Gesellschaft (ed), Selbstverwal-

Österreichische Gemeinde Zeitung (ÖGZ)

12.3. Internet resources

Rechtsinformationssystem, Legal information services (www.ris.bka.gv.at)

partment 7 – Local and Internal Affairs (www.verwaltung.steiermark.at/

1. BRIEF HISTORICAL EVOLUTION

1.1. The Belgian Constitution: key elements

After proclaiming the independence of the country, the National Congress of

– The exclusive competence of the legislative power to organize provinces

2. BASIC FACTS AND FIGURES

3. LEGAL FRAMEWORK OF LOCAL SELF-GOVERNMENT

4. COMPETENCES, POWERS AND SERVICES OF LOCAL

– The exclusive competence of the legislative power to organize provinces

3. LEGAL FRAMEWORK OF LOCAL SELF-GOVERNMENT

4. COMPETENCES, POWERS AND SERVICES OF LOCAL

– Ruling number 13658 of July 2nd, 1962 (Steenkiste)

1. BRIEF HISTORICAL EVOLUTION

3. LEGAL FRAMEWORK OF LOCAL SELF-GOVERNMENT

2. Structure and development of the territory of the municipality and of its

4. COMPETENCES, POWERS AND SERVICES OF LOCAL AUTHORITIES

– up to 20,000 – 17 councillors;

13. Approve decisions regarding the establishment and termination of mu-