Parish freedom
Community freedom or community autonomy is the freedom of those entitled to vote living in the lowest state level or in a political community to be able to determine their own affairs independently in the sense of direct or representative democracy .
While there are centralized models in France and Italy, there are decentralized municipal constitutions in Germany, Austria and Switzerland.
history
The first rural communities emerged in Europe at the turn of the early Middle Ages to the High Middle Ages . New agricultural production techniques ( three-field farming, cattle breeding, cheese production, alpine pasturing) and population growth influenced each other. The feudal lords leased their land to independently producing farm households (dissolution of the villication associations ). The farmers pooled their scattered parcels of goods in order to be able to handle crop rotation more productively. This led to a change in the structure of the settlement: The scattered settlements were abandoned in order to settle in villages. The collective cultivation of fields, pastures and Alps ( common land ) and the coexistence in villages led to new social, economic and legal changes. All over Europe the municipalities tried to gain autonomy and to dismantle the foreign rule. The republican system of communalism developed in the Italian cities such as Florence and Venice , in the rural areas of southern Germany , but most liberally in the central Alps ( Canton of Graubünden , Swiss Confederation ).
organs
In the context of representative democracy , it is customary for decisions to be made by elected local councils as a rule. The possibility of petitioning for citizens is given in many countries. But they do not form the rule of political decision-making there. In these countries too, Section III.2 of the “European Charter of Local Freedoms” of 1953 is fulfilled, which stipulates that the “general bills on local matters [...] must be submitted to the preliminary decision of a representative of the local authorities”.
In direct democracy , within the framework of the separation of powers, the municipal or citizens' assembly, as the highest organ, forms the legislature. In larger municipalities, the tasks of the legislature can be carried out by a municipal parliament with elected representatives and through ballot boxes. The community assembly is subordinate to the executive, a community council or a community leadership. This is elected in direct elections. The community assembly can be called by the executive as well as by some of the community members who are entitled to vote.
Tasks and competencies
Tasks that belong to the sphere of activity of the citizens in a political municipality or their elected representatives are: Supervision or control of the municipal administration, issuing and changing the main statute or (in Swiss) the municipal code, resolutions on expenses such as building roads , School buildings, kindergartens and sports facilities, approval of the community budget, approval of the annual accounts, determination of tax rates, social affairs, basic services (water and electricity), security, cultural activities.
The rights of residents and citizens in a municipality are laid down in the main statute or the municipal code. They are guaranteed within the framework of the laws of the next higher state level and (in democratic states with a written constitution) the constitution.
Community freedom as a prerequisite for sustainable democracy
In 1919 all European states up to the Russian border had democratic structures; H. free elections were held regularly in them. In most of the states that first introduced democracy after the First World War, these democratic approaches were lost in favor of authoritarian and totalitarian systems of government. The studies of Adolf Gasser have shown that democracy failed when failed states, to bring freedom and order in an organic compound. He was able to demonstrate that states can successfully withstand anti-democratic tendencies if citizens are effectively involved in the decision-making process in the communities. States with a democratic tradition firmly rooted in their citizens, such as the USA , Great Britain , the Scandinavian states, the Netherlands and Switzerland, resisted the totalitarian temptation despite the global economic crisis and the Second World War .
The historian Peter Jósika even describes the political community as the only legitimate starting point for a truly democratic state order. In this sense, Jósika argues that the municipality, as the smallest political unit closest to the citizen, should be given the greatest possible political authority. For Jósika, this includes above all the right of the population of a community to belong to a higher-level political area, e.g. B. a political region, a federal state or a state to decide freely at any time.
Development in Germany
The historical roots of local self-government lie in the neighborhood and cooperative structure of the medieval village and town communities. In the age of absolutism , however, this freedom was pushed back.
Today's local self-government is protected in Article 28 Paragraph 2 of the Basic Law and in most of the state constitutions by the local self-government guarantee. The communities are all responsible for tasks that are rooted in the local community (principle of universality); they have the right to determine tasks.
A ruling by the German Federal Constitutional Court in 2014 strengthens local self-government by confirming the right to a school for the local authorities , which, as a historically grown local authority, is a matter for the local community .
In the case of community votes, there are quorums (participation in voting as a percentage of those entitled to vote), on which a referendum can fail despite a majority of voters if the participation is below the quorum.
Development in Switzerland
According to the Swiss understanding of the state, municipal autonomy, analogous to federalism at the federal level, is of central importance. Article 50 of the Federal Constitution guarantees communal autonomy within the framework of cantonal law. Associations such as the Swiss Association of Municipalities and cantonal organizations of the municipalities represent the interests of the municipality as an institution at national and cantonal level. The development of cooperatives in the early modern period, due to new, collective forms of farming, especially in Alpine agriculture, form the basis for municipal freedom. Community freedom was most strongly developed in the Free State of the Three Leagues (today's Graubünden) in the 16th century, where the so-called judicial communities actually formed small states.
The extent of communal autonomy depends on the respective cantonal constitution and the cantonal communal laws. It is traditionally more pronounced in eastern and central (German and Romansh-speaking) Switzerland than in the western and southern (French and Italian-speaking) parts of the country. In recent times, there has been an increasing transfer of responsibilities from the municipalities to the canton. The reasons for this are the general (also at federal level) noticeable centralization of legislation as well as the very different financial possibilities of the municipalities.
In 2007, the Federal Supreme Court strengthened the freedom of municipalities de jure by the fact that the canton of Ticino had to declare a consultative vote as binding for the first time in its history and, if a municipality (in this case the municipality of Cadro ) rejects a merger, it no longer decreed a forced merger may: "The complainants have the right that the consultative vote, which is in principle the only way with which they can express their will, respects their voting rights."
The administrative reforms ( New Public Management ) of the 1990s reshaped public services ( Service public ) on the basis of economic criteria. In the new cantonal municipal laws since the end of the 1990s, the municipalities have been prescribed international bookkeeping based on Anglo-Saxon methods ( IPSAS ) and at the same time made it possible to transfer municipal tasks in various forms ( private public partnership , etc.) to third parties. In the opinion of critics, this orientation of the municipalities into pure service companies weakens local self-government and diminishes the participation rights of their citizens.
Development in Austria
Since the 1st European Municipal Day in Austria, the two municipal associations, the Association of Municipalities and the Association of Cities, have successfully advanced the development of municipal freedoms in a relatively short time. In terms of content, the amendment to the Federal Constitutional Act of 1962 came very much closer to the European Charter of Communal Freedoms of 1953.
Development in Liechtenstein
As in Switzerland and Austria, municipal autonomy in the Principality of Liechtenstein was subject to constant change. Today the laws of the Principality determine the existence, organization and tasks of the communities in their own and transferred spheres of activity.
Within the municipalities' own sphere of activity, the Liechtenstein government and the administrative court are only entitled to monitor compliance with the relevant legal provisions and not to exercise discretionary control . In certain areas, a “suitability check” can take place (for example in the area of the building law, Art 3).
According to Article 4, Paragraph 2 of the Liechtenstein national constitution (LV), the individual municipalities have “the right to withdraw from the state association. The majority of the resident citizens who are eligible to vote decide on the initiation of the resignation procedure. The resignation is regulated by law or, on a case-by-case basis, by an international treaty. In the case of a state treaty regulation, a second vote must be held in the municipality after the contract negotiations have been concluded. "
Development in the member states of the Council of Europe
After the Second World War , the peoples of Europe thought deeply about the basis of a democratic constitutional state. In September 1952 negotiations took place at the Hague Congress on the promotion of political participation of citizens in the communities. The 1st European Municipal Day in 1953 wanted to redefine the basic rights of municipalities and their freedoms. He proclaimed the European Charter of Municipal Freedoms .
In 1985, the European Charter of Local Self-Government of the Council of Europe was created. This convention has been in force since September 1, 1988. Article 3 (2) of the Charter unequivocally 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 bodies who are responsible to them. ”Recourse to“ citizens' assemblies, referendums or any other form of direct participation by citizens ”should only be allowed if“ this is legally permissible ”, i. H. if the competent parliaments of the relevant member states of the Council of Europe allow such forms of political decision-making.
Current threats to community freedom
The freedom of municipalities in European states is threatened, among other things, by the fact that the legislature assigns mandatory tasks to the municipalities at national, state or cantonal level, which restrict their scope for the decision to provide voluntary services for their citizens. The budgets of the municipalities nowadays include by far the largest part of expenditure items that are prescribed by the superordinate law. However, when a municipality can only finance compulsory tasks, the municipality's autonomy becomes an empty formula.
The fundamental freedoms of the European Union for the liberalization of basic services also have the potential weakening of the autonomous maneuver of municipalities in the Member States of the EU in itself. Often local administrations and local tradespeople also regret that, due to EU-wide regulations above a certain investment volume, municipalities are no longer allowed to give preference to local providers in tenders . This regulation limits the possibilities of municipal economic development . This effect is reinforced if the possibility of bypassing an in-house award is blocked by the fact that public institutions supported by the municipality are (must) be privatized. A private award of contracts by a municipality to purely private companies is generally not only possible under German law due to anti-discrimination regulations only in exceptional cases.
literature
- Adolf Gasser: Community freedom as the salvation of Europe. Basics of an ethical conception of history. Verlag Bücherfreunde, Basel 1947.
- Adolf Gasser, Ulrich Mentz: Community freedom in Europe. The rocky road to more local self-government in Europe. Local law - Local government, Vol. 43, Nomos Verlag 2004, ISBN 978-3-8329-0772-3
- Randolph C. Head: Democracy in early modern Graubünden. Chronos-Verlag, Zurich 2001, ISBN 3-0340-0529-6
- Annette Holtkamp, Holger Holzschuher: On the development of communal autonomy in late capitalism using the example of the Federal Republic of Germany, Great Britain and the United States of America. Diploma thesis at the Free University of Berlin, Berlin 1975.
- Kilian Meyer: Community autonomy in transition. A study on Art. 50 Para. 1 BV taking into account the European Charter of Communal Autonomy. BoD Verlag, Norderstedt 2011, ISBN 978-3-8423-4978-0
- Peter Steiner, Andreas Ladner: Community. In: Historical Lexicon of Switzerland .
Individual evidence
- ^ Randolph C. Head: Democracy in early modern Graubünden. Chronos-Verlag, Zurich 2001, ISBN 3-0340-0529-6 .
- ^ Adolf Gasser, Ulrich Mentz: Community Freedom in Europe. The rocky road to more local self-government in Europe. Local law - Local government, Vol. 43, Nomos Verlag 2004, ISBN 978-3-8329-0772-3 .
- ↑ Peter Josika: A Europe of Regions - What Switzerland can do, Europe can ( Memento of the original from November 6, 2014 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. , IL-Verlag, Basel 2014, ISBN 978-3-906240-10-7 .
- ^ Resolution of the Second Senate of November 19, 2014: 2BvL 2/13 .
- ^ Südkurier of November 10, 2014: Rielasingen-Worblingen referendum on the community school in Rielasingen-Worblingen failed .
- ↑ Federal court decision 1C 181 of August 9, 2007 ( bger.ch ( page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. ).
- ↑ Alessandro Pelizzari: The economization of the political: new public management and the neoliberal attack on public services, Konstanz 2001, ISBN 3-89669-998-9 .
- ↑ NZZ of December 1, 2013: Fiscal magic formula - How Winterthur calculates overnight .
- ↑ Art 110 para. 1 LV . For the scope of municipal autonomy, see the municipal law of March 20, 1996 (LGBl 76/1996).
