Changes in local authority boundaries shall not be made without prior consultation of the local communities concerned, possibly by means of a referendum where this is permitted by statute.
The Charter contains several articles on consultation between central and sub-national governments. As already mentioned (see paragraph 166), Article 4.6 introduces the right of local authorities to be consulted in general terms, as a basic principle of local self-government. Two more articles, Article 5 on local authority boundaries and Article 9.6. about financial matters, refer to special fields of consultation.
The Congress has also adopted recommendations on consultation of local authorities. Recommendation 171 (2005), the Congress emphasises that the right of local authorities to be consulted is a fundamental principle of European legal and democratic practice, the aim of which is to contribute to good governance. In the interests of promoting good governance, consultation of local authorities should be a required part of policy-making, enabling the wishes of local authorities to be known in good time and properly taken into account in the decisions of central authorities. Mechanisms for consultation should be well-established in the democratic and political relationship between the state and the territorial authorities. Consultation processes appear in general to be moving towards a system of negotiation between the government and territorial authorities. Although the concept of “appropriate consultation” (Article 4, paragraph 6 of the Charter) has not yet given rise to specific case-law, there is already “extensive case-law” in several countries on the legal effects of failure to consult territorial authorities. Regarding territorial organisation, the Congress has emphasised that the general rule should be the prior consultation of the territorial authorities concerned.
In Resolution 347 (2012), the Congress initiated the elaboration of a strategy for 2013 to further strengthen the consultation processes between the different levels of government in order to improve the quality of legislation and, thereby, the local and regional policies -as well as the effectiveness of such consultation processes in the member States.
In Recommendation 328 (2012) the Congress stated that the right of territorial authorities to be consulted, as laid down in Articles 4.6, 5 and 9.6. of the Charter, constitutes one of the core principles of local democracy. Local authorities should therefore be consulted and should have an active role in adopting decisions on all matters that concern them and in a manner and timeframe such that local authorities have a real opportunity to formulate and articulate their own views and proposals, in order to exercise influence on the decision-making processes affecting them.
Consultation procedures should be clearly defined and transparent and should constitute a required part of policy making and the legislative process, to enable local authorities to express their interests and opinions in time for these to be taken into account in the formulation of policy and legislation. Central and regional authorities should provide clear and detailed information, in writing, about proposed policies well before the consultations are due to take place, in order for those consulted to be well informed about the motives and objectives of each planned decision or policy. Strategically important decisions should be based on careful analysis of the implications for self-governance as well as of the economic consequences for the local and regional level. Local and regional government expertise should be involved in the process of drafting policies and legislation at an early stage, for example through participation in working groups to prepare new legislation. Local and regional authorities should have a clearly defined right to petition if they believe that necessary consultations have not been properly conducted, and a right to redress if it is established that procedures were not properly followed.
Although the text of the Charter does not define the concept of consultation, having regard to the Charter’s basic function to establish and promote the rights of territorial authorities, consultation between the central and the territorial governments can be defined as a process by which the parties seek information, advice or the opinion of each other about particular topics, and discuss them. From the point of view of territorial governments, the main functions of consultation are:
- to obtain relevant information on the decision-making process of central authorities affecting their interests;
- to provide the opportunity for local authorities to express their views and opinions on the relevant statutory laws and regulations in all stages of the decision-making process;
- to make proposals, and submit claims or complaints to central government, with the latter’s obligation to respond to them.
As already mentioned (paragraph 171), Article 5 of the Charter refers to a particular field of consultation (changes to territorial government borders), while Article 4.6. introduces the general right of consultation, also referring to some guiding principles. By definition, the general provisions of Article 4.6. also apply to the specific field of changing borders. The requirement of Article 4.6. for an “appropriate way” of consultation is to be seen as a “rationality” principle of consultation, which obviously requires that consultation should take place in a way that provides real opportunity for territorial authorities to formulate and articulate their own views and proposals. Certainly, there is no guarantee that the central authorities, entitled to legislate or make policy decisions by law, will accept the opinions of sub-national territorial authorities, but it is an inherent requirement that they have to take them into account, before taking any final decision.
The purpose of the Charter’s “due time” criterion is to ensure that the manner and timing of consultation is such that territorial authorities have a real possibility to exercise influence on the decision-making process affecting them. As the explanatory memorandum of the Charter states, the right of local governments to consultation under certain conditions may be overridden, in particular in cases of urgency, but this is allowed only exceptionally. The Charter does not specify the length of “due time” in a normative and general way, because it depends on many circumstances in the member states. But the more specific the matter concerned, the easier this is to determine, having regard also to the traditions and demands of the territorial authorities. The “due time” criterion could be equated with a “reasonable time” requirement.
More specifically, Article 5 of the Charter contains a procedural safeguard of territorial self-government rights; it requires a consultation with the concerned territorial government(s) on any plan to change its boundaries before any action has been taken. This principle underlines the basic requirement that the affected authorities must be notified about any proposal to change their boundaries. This relates to both cases when an individual authority’s boundaries change, and when the whole territorial government system is transformed. The decision maker, before any final action, is obliged to ask the view of the territorial communities concerned. In other words, any change of territorial government boundary may take place only after seeking the opinion of the affected authorities, municipalities and/or regions. In this way the spirit of the Charter is respected, requiring a partnership between central government and territorial authorities based on mutual trust and co-operation.
When the change of the boundaries or the administrative status of a territorial authority takes place against the will of the overwhelming majority of the local population, not only the affected sub-national authorities but also the affected citizens may easily lose their trust in democratic institutions and processes. Therefore, national governments should publicise and explain a coherent concept as justification for the changing of boundaries, based on plausible reasons of public interest. Finally, results of consultation are not binding for the decision makers, but it is important to achieve transparency and procedural (so-called “throughput”) legitimacy of decisions on territorial choices, especially when an important part of the local/regional citizenry does not approve of changing the borders.
In view of the importance attached to appropriate and efficient consultation, which builds trust and legitimacy, and takes place in due time (which means, prior to territorial reform), the practice whereby central government consults only with the national associations of local/regional authorities when the whole local government system is restructured, or when a number of local/regional authorities are merged into greater units, does not meet the requirements of the Charter. The provisions of the Charter require consultation with all local/regional communities concerned, especially when the number of the affected authorities is rather small and consultation with each one of them is easily practicable (as it is in the case of the French regions).
The issue of prior consultation when changes in local authority boundaries are made is fundamental and existential for territorial authorities in all countries. In France, the question of regional boundary changes has been particularly controversial since the draft law on “the delimitation of the regions, regional and departmental elections and modifying the electoral calendar” (hereafter called the Law on the Regions) was introduced into the Senate on 18 June 2014. That the government chose an “accelerated procedure” (also controversial) to steer the law through the upper and lower house is a further indication of the extent of discussion that the subject - in particular the regional boundaries – was expected to, and did, generate. The law aimed principally at reducing the number of metropolitan regions from 22 down to (initially) 14, merging some and leaving others intact. After much debate and amendment, the Senate finally adopted the draft law in first reading but voted to delete the amendment aimed at reducing the number of regions. The national assembly reinstated a new map of 13 regions – which the Senate extended to 15 at its second reading – adopting it by a narrow majority of a single party. The 13 regions were again reinstated by the National Assembly at second reading. With no common accord between the two houses, a joint committee was convened but no agreement was found and on 17 December 2015 the National Assembly adopted its definitive text with 13 regions. Finally on 19 December a group of 60 parliamentarians and 60 senators challenged the law as unconstitutional, taking a case to the Conseil Constitutionnel (Constitutional Council) (further details of this court case appear below). Following the Council’s decision of 15 January 2015, rejecting the challenge of unconstitutionality, the law was finally promulgated on 16 January 2015 with the date of 1 January 2016 set for the new boundaries to enter into force.
The strength of feeling shown in the National Assembly and the Senate on the issue of regional boundary changes was also reflected in concerns at the level of citizens and their associations and guided the rapporteurs’ questions during the monitoring visit. The issue has remained one of heated discussion in the country at large owing to the regional elections scheduled for December 2015, and the entry into force of the new, amalgamated regions from 1 January 2016. In some of the meetings that the rapporteurs had with French regional and local politicians, there were strong criticisms about the lack of previous consultation, while during the visit in the Region of Champagne-Ardenne, it was clear that the planned amalgamation with Alsace caused furious reactions among the regional and the local politicians in Champagne. However, the Law on the Regions, passed by Parliament on 16 January 2015, is going ahead; neither will referenda on this issue be organised, as some complainants have proposed.
The Conseil Constitutionnel in its decision of 15 January 2015, marked the first of two significant rulings handed down in France in 2015 concerning the legal aspects of amalgamation and prior consultation according to Article 5 of the Charter. The second case was brought before the Conseil d’Etat (The Council of State) also contesting the above law on the Regions, but this time with a request to annul Decree No. 2015-939 published on 30 July 2015 relating to the election of regional councillors under the new regional map. The two cases are described in further detail below.
As to the decision of the Conseil Constitutionnel, the 120 litigant deputies and senators claimed that the law on amalgamating and delimiting the regions (the Law on the Regions) violated Article 5 of the European Charter of Local Self-Government and that the absence of prior consultation with the affected territorial collectivities also violated the principle of superiority of international treaties over parliamentary laws that is enshrined in Article 55 of the French Constitution. According to this reasoning, if an international treaty is violated, then the Constitution itself is violated. However, rejecting this argument, the Conseil Constitutionel confirmed its traditional interpretation, according to which it is not its role to review the compliance of a law with the provisions of an international treaty or agreement. Since its Decision n° 74-54 DC of 15 January 1975, the Court has constantly stated « si les dispositions de l’article 55 de la Constitution confèrent aux traités, dans les conditions qu’elles définissent, une autorité supérieure à celle des lois, elles ne prescrivent ni n’impliquent que le respect de ce principe doive être assuré dans le cadre du contrôle de la conformité à la Constitution ». « If (should) the provisions of Article 55 of the Constitution confer on treaties, under the conditions so defined, a superior authority to those of laws, they neither prescribe nor imply respect for this principle when ruling on conformity with the Constitution”.
The litigants in this case had claimed that the lack of prior consultation of regions and departments would violate the principle of free administration of the territorial collectivities which is a fundamental principle recognised by the Constitution and the laws of the Republic. In Article 72 the Constitution stipulates that the territorial collectivities are freely administered by elected councils under the conditions provided by law.
Nevertheless, the Conseil Constitutionnel rejected the complaint alleging disregard of the principle of free administration of territorial collectivities stating that the Constitution would not prescribe the consultation of territorial collectivities on changes to their territorialboundaries. At most,it ruled, Article 72-1 provides that changes to the boundaries of territorial collectivities may give rise to the consultation of voters under the conditions provided for by the law.
The litigants had also invoked laws preceding the Constitution of 1946. These laws prescribe the obligation to take into consideration the opinion of territorial collectivities before adopting an administrative decision concerning their boundaries. These arguments were also rejected by the Council which stated: In the case under consideration, the changes to regional boundaries were made by a legislative act of parliament and not by a normative act of the administration. Furthermore, the Council reasoned that Article 72-1 referred to consultation of local voters and this exluded a contrario, the existence of a principle of consultation in favour of the collectivities themselves. Therefore, the Conseil Constitutionnel refused to recognise the existence of a fundamental principle that would impose prior consultation of territorial collectivities.
The question of the requirement for prior consultation of individual regions was the subject of another application based once again on a violation of Article 5, giving rise to a decision by the Conseil d’Etat (the Council of State) in 2015. This case was brought by three associations and five individuals who filed for a judicial remedy requesting to annul the presidential Decree No. 2015-939 of 30 July 2015 concerning the convocation of the electoral colleges for the election of regional councillors, councillors of the Corsican Assembly, councillors of the Assembly of Guyana and councillors of the Assembly of Martinique (hereafter called the decree on the election of regional councillors). In this the litigants relied on the jurisdiction of the court to rule on the compatibility of a law with international treaties, even where the law is posterior to the treaty. Indeed, there are already a number of cases where French administrative courts have taken into account the principles and norms of the Charter in their judgements on provisions of French law.
The facts were that the French Government had convened the voters by a decree of 30 July 2015, to vote in December 2015 for the first regional elections to be based on the new map of the regions. Three associations and five individuals filed for a judicial remedy, requesting the Conseil d’Etat (Council of State) to annul the decree No. 2015-939 of 30 July 2015 concerning convocation of the electoral colleges to proceed with the election of regional councillors. Furthermore they requested the Council to order the Prime Minister to convene the electoral college to elect regional councillors within the areas defined in accordance with Article L. 4111-1 of the general code of local authorities in its version prior to its amendment by Article 1 of Law on the Regions of 16 January 2015. On this occasion, the applicants contested the law of 16 January 2015 concerning the merging and delimitation of the French regions, which was the legal basis for the aforementioned decree. The litigants argued that the law disregarded the European Charter of Local Self-Government, which requires signatory states to implement rules safeguarding the political, administrative and financial autonomy of local authorities.
In its decision of 27 October 2015 the Conseil d’Etat rejected all the requests before it. The Council held that Article 4 of the European Charter of Local Self-Government (which provides in its paragraph 3 on the scope of local self-government, that “public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen”) only governs relations between states signatory to the Charter and therefore may not be relied upon by individuals before a judge. However the judges’ reasoning contains many subtleties as they accepted only to examine the provisions of the law in the light of France’s international commitments but would not examine the procedure for the adoption of the law in the light of its international commitments.
Therefore, as regards the alleged violation of Article 5 of the Charter, the judges found that the applicants could not rely on compliance with an international treaty to challenge the procedure for the adoption of the law of 16 January 2015. They further reasoned that the Conseil d’Etat was therefore only able to rule on the content of the law with regard to France’s international commitments, and not the procedure for adoption of that law.
Finally, the Conseil d’Etat also rejected the argument that the merging of regions had disregarded the provisions of Article L. 4122-1 of the general code of local authorities which provides that regional boundaries should be changed only after consultation with, and favourable vote by, the regional and departmental councils affected. The judges held that the Parliament, being the legislator, was able to remove this requirement for prior consultation on a case-by-case basis before the adoption of the law of 16 January 2015 on territorial reform.
The Congress delegation cannot but regret that the European Charter of Local Self-Government, ratified by France, were not taken into consideration by the Conseil d’Etat.
Considering now the requirements of Article 5, the fact that a special parliamentary law had been adopted and that the law about the mergers of regions was the subject of debate and voting in the Senate, does not appear to satisfy the principles laid down in the Charter. The Senate is an integral part of the legislative power. The Constitution (Article 24) provides a particular mode of election for the members of the Senate, who are elected by representatives of the territorial collectivities although they are not entitled to represent single territorial collectivities (e.g. regions) – they have no legal mandate for representing the interests of single territorial authorities. Senators represent general interests of the territorial collectivities as such and they fulfil this task within the framework of their parliamentary work (to examine and vote on laws, control the government and evaluate public policies, Article 24 of the Constitution). The opinions of the senators cannot be regarded as “consultation” as required by the Charter. Moreover, the participation of senators in parliamentary work cannot be characterised as efficient prior consultation “in due time and in an appropriate way” for the authorities directly concerned as stipulated in Article 4.6 (general rule) in combination with Article 5 (particular rule) that safeguard the right of territorial authorities to be consulted.
Furthermore, the right of “prior consultation” is enshrined in the Charter for “the local communities concerned” and that means for each one of them, especially if the number of the “communities concerned” is small (as it is the case of the French Regions) so that such a consultation is easily practicable. Therefore, the delegation concludes that, according to Article 5 of the Charter, the official representatives of each region have to be consulted prior to changes in regional boundaries and mergers. The genuine representative of the regional community is no other than the regional assembly, the representative and deliberative institution where an open local debate about the reasons, the aims, the means and the possible consequences of such mergers can take place. The provision of the Charter for prior consultation of “communities concerned” (and not of communities in general or even of their representatives at national level etc.) is a substantial procedural guarantee safeguarding the spatial component of local autonomy and the distinct identity of each territorial community. These guarantees cannot be by-passed through distant consultation on a general basis at the national level.
The rapporteurs conclude, therefore, that the procedures for adopting the law of 16 January 2015 “on the delimitation of the regions, regional and departmental elections and modifying the electoral calendar” did not meet the aforementioned requirements of the Charter and that there is therefore an infringement of Article 5.