European Charter of Local Self-Government

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The European Charter of Local Self-Government (original title: English European Charter of Local Self-Government , French Charte européenne de l'autonomie locale ) of October 15, 1985 obliges the contracting states to apply basic international law rules that ensure the political, administrative and financial independence of the communities provide.

History of origin

On the 1st European Municipal Day on October 17 and 18, 1953 in Versailles , the municipalities united in the Council of European Municipalities across the borders unanimously adopted the European Charter of Municipal Freedoms in order to create a free and peaceful Europe in the interests of their citizens. In doing so, they have re-established their "rights, which have been sacred for thousands of years, as one of the foundations of human freedom" because they have been threatened and destroyed in many places. The Council of European Municipalities announced that it would defend these rights and demanded that “behind every municipality fighting for its rights, the collective power of all municipalities should stand”. In 1953 it was also demanded that “every citizen, in recognition of his obligation as a member of the congregation to participate in its healthy development, should actively participate in congregational life”. In most European countries, however, there is no compulsory voting , and municipal administrations tend to be more cautious with the instrument of using citizens against their will for honorary posts such as electoral officers or lay judges . The “duty of political participation ” of the citizens of a community is primarily of a moral nature.

In an effort to make the provisions of the European Charter of Local Freedoms justifiable (i.e. enforceable) and binding for all member states of the Council of Europe , a new Charter was adopted as a convention by a committee of government experts within the Council of Europe under the supervision of the Tax Committee for Regional and Local Affairs worked out. This was based on a draft of the Permanent Conference of Local and Regional Authorities of Europe (today: Congress of Local and Regional Authorities of the Council of Europe ). The “European Charter of Local Self-Government” was signed by the member states of the Council of Europe on October 15, 1985 and came into force on September 1, 1988. All member states of the Council of Europe have now ratified the charter. San Marino became the 47th state to ratify the Charter on October 29, 2013.

The main difference between the two charters is that the newer set of rules is based on representative democracy as the normal case of political decision-making. Article 3 (2) states that the right to local self-government “is exercised by councils or assemblies whose members have emerged from free, secret, equal, direct and general elections and which can dispose of executive organs over against them are responsible. Recourse to citizens' assemblies, referendums or any other form of direct participation by citizens "may only take place if it has been" approved "by the legislature of the member state.

Purpose and content of the Charter

The purpose of the charter is to set common and measurable European standards for the protection of the rights of local authorities and elected residents' councils in order to give citizens the opportunity to participate in the decision-making processes that affect their immediate living space.

The European Charter of Local Self-Government consists of a preamble and three parts.

In the preamble to the Charter, the signatory member states of the Council of Europe point out that local authorities are one of the essential foundations of any democratic form of government and that the right of citizens to participate in public affairs is one of the democratic principles common to all member states of the Council of Europe and they believe that this right can be exercised most directly at the local level. They consider the protection and strengthening of local self-government to be an important contribution to building a Europe based on the principles of democracy and the decentralization of power.

The first part of the charter sets out the material guarantees of the principle of local self-government. The charter wants the principle of local self-government to be enshrined in law - if possible in the constitution - and for community representatives to be elected in general elections. The municipalities should be able to regulate their public affairs independently within the legal framework for the benefit of their residents. Public tasks should be carried out at the level closest to the citizen and only delegated to a higher level if it is not possible to properly handle them at the lower level ( principle of subsidiarity ). The charter contains principles for the protection of the municipal boundaries, the structure of the administration, the performance of municipal tasks and responsibilities, the municipal tax sovereignty, the legal and technical supervision of the municipalities, the financial resources of the municipalities and the legal protection of local self-government.

The second part of the charter contains various provisions relating to the obligations entered into by the parties by signing the charter. Here, a realistic balance is to be guaranteed between the protection of fundamental principles and the necessary flexibility that the Charter must retain due to the legal and institutional differences between the various member states. The Charter expressly allows the parties to exclude certain provisions of the Charter from being valid in their territory. On the one hand, this is intended to respect the objective of protecting a minimum of fundamental principles. On the other hand, it is recognized that local self-government affects the structure and organization of various nation states. Each contracting party undertakes to consider itself bound by at least twenty paragraphs of Part I of the Charter. In principle, the provisions of the charter apply to all forms and levels of local authorities. However, the parties can exclude certain forms of local government from the scope of the Charter. For the Federal Republic of Germany there are two declarations on the validity of the Charter. Accordingly, the charter applies to municipalities and districts in the Federal Republic of Germany and also to association municipalities in Rhineland-Palatinate. There is also a restriction to Art. 9 III of the Charter, which states that part of the financial resources must come from local taxes and fees, for which the local authorities have the right to set the assessment rate within the legal framework. In the Federal Republic of Germany, this paragraph is only applicable to municipalities, but not to districts and municipalities in Rhineland-Palatinate.

The third part contains the final provisions (signature, ratification, entry into force, territorial clause, denunciation and notification) of the Charter.

Enforcement of the Charter

The Charter contains an obligation on the parties to provide the Secretary General of the Council of Europe with all relevant information on legislation and other measures they adopt in order to comply with the provisions of the Charter. Outside of this obligation, the Charter does not provide for an institutionalized system of monitoring its application.

Initially, thought was given to setting up an international monitoring system - analogous to that of the European Social Charter. However, this complex monitoring machinery was ultimately classified as dispensable, since the Congress of Local and Regional Authorities, as an organ of the Council of Europe with direct access to the Committee of Ministers, would be able to ensure sufficient political control of compliance with the requirements of the Charter by the member states.

For the Congress of Local and Regional Authorities, the Charter is an important instrument for the enforcement and protection of the right of local self-government throughout Europe and is very well accepted as this, especially because of the high number of ratifications. Compliance with the regulations is evaluated in the context of monitoring reports from the congress. These reports and any interference with the law of local self-government are discussed in the institutional committee and in plenary. With its recommendations, the Congress addresses the Council of Europe's Committee of Ministers directly.

See also

literature

  • Adolf Gasser : Community freedom as the salvation of Europe. Basics of an ethical conception of history . Verlag Bücherfreunde, Basel 1947. The European Charter of Local Self-Government can be seen as the implementation of the principles contained in this work in international legal norms.

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