A. Introduction

Notes

A. Introduction

Since 1985, local autonomy in Europe is protected by an International Convention containing the “European Charter of Local Self-Government”. This Charter, submitted for signature since 15-10-1985, is in force since 1-9-1988 and has been signed meanwhile by nearly all the European States (1). In July 2005, its 20th anniversary has been celebrated at an international meeting in Lisbon.

The European Charter is inserted in the framework of the Council of Europe. There is a Congress of Local and Regional Authorities of Europe (CLRAE – Congrès des Pouvoirs Locaux et Régionaux de l’Europe – CPLRE) which elaborates recommendations and resolutions to be submitted to the Committee of Ministers of the Council of Europe. Certainly these decisions are not immediately binding. But as the respect of the European Charter – like of the European Convention on Human Rights – has been defined as a condition of adherence to the Council of Europe, the importance of the Charter all over Europe and of the monitoring of its application is quite high.

Therefore a system of monitoring of the European States has been developed and applied in monitoring reports regarding nearly all the European States (2). The example of the last monitoring report regarding Spain has been published in this Yearbook with a comment of Francesco Merloni, actually President of the Group of Independent Experts on the European Charter (3).

Recently a report has been elaborated on Local and Regional Democracy in the Netherlands, and it seems interesting to document this report as well, for three reasons.

First, the one main topic of this report, the election of mayors, until now not provided in the Netherlands, is an essential question of a functioning local democracy. The European Charter (article 3 § 2) requests elected councils and “executive organs responsible to them”. This responsibility has been largely discussed and interpreted by the CLRAE (4). However, as a matter of fact, there are, on the one side, still several constitutional regulations which provide mayors nominated by the central (or regional) government. A system of this kind is well anchored in the Dutch constitutional and political system and culture (5). On the other side, the alternative of election regards, in recent times, above all the election by the local people (6) and thus a large independence from the council. Therefore the CLRAE has discussed, in spite of the formulation of the European Charter, the advantages and inconveniences of such a solution, underlining the advantages (7).

In this line the new regulation to be introduced in the Netherlands follows a general tendency. Nevertheless it raises difficult problems of transition, described in the Report. In the mean time these problems seem to have found a solution (8). It is now ensured that the new regulation shall not operate for the elections of 2006, but of 2010, what leaves a sufficient time for the adaptation of existing appointments, positions and regulations. In this sense the Report marks the transition of the old system of nomination of mayors to a recent one of direct election.

The second topic of the Report regards local finance. It is founded on the fact that the level of local taxation in the Netherlands has been, for a long time, very low. It has thus been criticized in a former Monitoring Report in 1999 and in a General Report on local finances in 2000 (9), because it seemed insufficient to ensure the “adequate financial resources” granted by article 9 § 1 (and § 7) of the European Charter.

Local taxation in the Netherlands is based, until now, above all on a real estate tax for private and commercial buildings. For private buildings the user and – until an amount of 5/4 of the user’s tax – the owner have to pay a real estate tax. Now the project was to abolish the user’s tax and to maximise the owner’s tax, with the effect to reduce the tax income on private houses in the measure of 4/9.

The now presented Report and the Recommendation 180 (2005) argue that, beyond the question of “adequate financial resources”, after a reduction in that measure local taxation would no longer guarantee that “Part at least of the financial resources of local authorities shall derive from local taxes”, what is provided in article 9 § 3 of the European Charter. While the former criticism is essentially quantitative and has therefore to respect a margin of appreciation of the national authorities, the elimination of a substantial part of  the existing and even in past low local taxes modifies in a way of principle the provenience of local finance. Therefore a violation of the Charter has to be stated and is pronounced in the Recommendation 180 (2005).

Third, it seems interesting that the Report has been elaborated on the request of the Dutch delegation to the CLRAE and on account of conflicts of local authorities with the government. Although the elaboration of monitoring reports is a continuous task and practice of the Congress, in this case it has the scope of a remedy for the local authorities and their organisation in the Netherlands. In that way the function of monitoring comes nearer to a judgment on State policies in the field of local autonomy. One could see some parallels between the protection of the European Charter and the protection of the European Convention on Human Rights.

Of course such similarities are very limited. There is no jurisdictional procedure in monitoring the application of the European Charter, the Congress is a political institution, not a Court, and the very general formulation of the European Charter limits a legalistic application. Nevertheless, in the discussions of the last years one has argued “Towards the introduction of a system of European judicial guarantees of local and regional autonomy” (10), and the result of the so titled Report openly pretends for legal protection.

Therefore the here discussed Report on the Netherlands and the Recommendation raise the question of the relevance of a pronouncement in this kind. The Parliament of the Netherlands has, in spite of the Recommendation, approved the bill and adopted the law concerning the reduction of the real estate tax on 20-12-2005, but combined with a motion that during the actual cabinet period – i.e. until spring 2007 – measures have to be taken to restore the municipal taxation power (11). Obviously the Parliament recognizes the obligation resulting from article 9 § 3 European Charter and tries to fulfil it, but insisting on reducing the real estate tax. According to experts, the introduction of a new local tax after the reduction of an existing one seems to be, in practice, difficult and problematic, so that it is not at all certain that a bill in this direction will pass in not much more than a year. Therefore one may ask whether the motion adopted by the Parliament has practical importance and whether it avoids the violation of article 9 § 3 of the European Charter.

In this situation it may be considered that, according to article 94 of the constitution of the Netherlands, “Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties that are binding on all persons or of resolutions by international institutions.” If  article 9 § 3 of the European Charter is violated, a Dutch judge may not apply the regulation in conflict with it. It seems that court cases regarding this problem are emerging from the actual situation. Anyway the conflict demonstrates the importance of the European Charter and of its application, especially in a country which admits a jurisdictional control of the conformity of statutory regulations with obligations of public international law.

In following are presented in a Spanish translation, however without the appendix

-         the original Monitoring Report on “Local and Regional Democracy in the Netherlands”, CG (12)16, dated 3-5-2005, Rapporteurs: Kathryn Smith, Odd Arild Kvaloy, Expert: Dian Schefold, discussed on 1-6-2005 at the Plenary Session of the Congress (B.);

-         the actualized and abridged version on “State of Local Finance in the Netherlands”, CPL (12)11, dated 3-10-2005, Rapporteur: Kathryn Smith, as far as it differs from the original Report (C.);

-         the Recommendation 180 (2005) on this Report, debated and approved by the Chamber of Local Authorities on 8-11-2005 and adopted by the Standing Committee of the Congress on 9-11-2005 (D.).

Notes