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France - Monitoring report

Date of the monitoring visit: from 26 to 29 May 2015
Report adopted on: 22 March 2016
Files : Report CG30(2016)06 | Recommendation 384 (2016)
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This is the first report on the state of local and regional democracy in France since that country’s ratification of the Charter in 2007. The rapporteurs note first of all that there has been progress on the whole in the decentralisation process in France. The report also underlines France’s efforts in the field of co-operation between local and regional authorities, especially as regards transfrontier co-operation. It is also observed that these authorities enjoy greater financial autonomy as a result of the increasing proportion of own resources in their budgets. Where the territorial reform is concerned, however, the rapporteurs express concern about the lack of any real consultation of local authorities before the adoption of the legislation which came into force on 1 January 2016, and about the financial imbalance between local and regional authorities due to an inappropriate equalisation system and recentralisation of local taxation decisions to national level.

 

It is therefore recommended that the French authorities review the process for consulting local authorities’ direct representatives on all decisions concerning them (Article 4), in particular those concerning their boundaries (Article 5). It is further recommended that France review its equalisation system to render it more equitable, transfer responsibility for deciding local tax rates back to the local level and clarify the sources of local authorities’ financial resources. Lastly, the report calls on the French authorities to clarify the division of responsibilities between the different tiers of local government to avoid all overlaps and continue to increase the proportion of own resources in local authorities’ budgets.

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Article 2
Constitutional and legal foundation for local self government - Article ratified

The principle of local self government shall be recognised in domestic legislation, and where practicable in the constitution.

The principle of local government is explicitly recognised in the French Constitution, in Article 1 paragraph 1 which (since the amendment of 2003) states that the organisation of the French Republic is decentralised. This introduces the principle of decentralisation which is, according to French legal doctrine, the principle of territorial self-government, traditionally focusing on the administrative mission of local self-government.

 

In addition to this explicit incorporation of the decentralisation principle in the first article of the French constitution in the beginning of the 21st century, there is also the constitutional notion of “free administration”. The so-called principle of free administration for territorial collectivities (“principe de la libre administration des collectivités territoriales”) was announced by the Constitution of 27 October 1946 (Article 87) and then also adopted in Article 72 of the Constitution of 4 October 1958. This principle first developed its full legal effect during the seventies, due to the case law of the Conseil Constitutionnel (Constitutional Council) and, later on, of the Conseil d’Etat (Council of the State).

 

According to Article 34 of the French Constitution, the law lays down the fundamental principles of free administration of “territorial collectivities” (“collectivites territoriales”). The term comes from the older, wider notion of “territorial community” (“communaute territorial”), often used already by the beginning of the 20th century in legal handbooks of Leon Duguit and other writers, in order to describe a political community defined through the common affiliation of its members to a certain territory. Today, Article 72 of the French Constitution enumerates the territorial collectivities of the Republic (“communes”, “departments”, “regions”, “collectivités de statut particulier”, “collectivités d’ outre-mer”), but it also gives the possibility to the legislator to create other sorts of territorial collectivities, if need be, to replace one or more of the aforementioned types.

 

According to Article 72 paragrah 2 of the Constitution, these territorial collectivities are “freely administered” (“s’administrent librement”), by elected councils who have regulatory power for the exercise of their competences.

 

The French Constitution recognises and guarantees the principle of local self-government, first as a defining principle for the character of the Republic (Article 1, since 2003), then through Articles 34 and especially 72 and the following, where the principle of “free administration” for “territorial collectivities” is enshrined, the existence of different sorts of territorial collectivities is guaranteed (Article 72 paragraph 1) and the main institutional features of local government are configured. The Constitution includes a special chapter (Titre XII Des Collectivités Territoriales) for local government, however, only the first three articles (Articles 72, 72-1, 72-2) refer to local government in general, while most articles are dedicated to the special status of overseas territories (Articles 72-3, 72-4, 73, 74, 74‑1). There is extensive and systematic legislation (see below) recognising and regulating different aspects of local government.

 

Therefore, it follows that the requirements of Article 2 are met in France.


 

 

Article 3.1
Concept of local self government - Article ratified

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.

The question about the exact meaning of the right and the ability to “regulate and manage a substantial share of public affairs under their own responsibility”arises in all countries party to the Charter. In France, the case law of the Conseil Constitutionnel, even since the eighties, indicates that a substantial share of public competence should be assigned to the territorial collectivities – with the effect that their elected assemblies should be able to exercise their rights of free administration on behalf of their communities (attributions effectives).

 

The percentage of local spending in total public spending (see above para. 109 et seq.) may be taken as an indicator of the share of public affairs that local government manages under its’ own responsibility and this share appears to reach a satisfactory level in France. There seems however to be an issue for smaller municipalities which are members of inter-municipal entities with own fiscal powers. In fact, these smaller municipalities manage a very small part of public responsibilities under their own responsibility, while the most important and demanding tasks are carried out by EPCI’s or other structures of inter-municipal co-operation. The fact that mayors of smaller municipalities represent their authorities on boards and assemblies of such inter-municipal entities does not change the fact that these municipalities do not “regulate and manage a substantial share” of public affairs “under their own responsibility”. France has declared that the Charter does not apply to such inter-municipal entities and the French Constitution does not include EPCI’s in the list of territorial collectivities (Article 72 paragraph 1). This worsens the situation for small municipalities whose competence is protected both by the Charter and the French Constitution but they delegate their tasks to entities which are excluded both from the normative field of Charter and from constitutional safeguards for local government. Therefore, the situation of small municipalities that perform only few secondary residual tasks and delegate their most important tasks to inter-municipal entities, amounts to a violation of the Charter. It should be clear that Article 3 paragraph 1, when using the term “ability” refers to each municipality and not simply to the overall situation or only to the majority of municipalities.

 

France declared itself not to be bound by Article 3 paragraph 2 of the Charter Nowdays, however, there seems to be no need for France to sustain this declaration as all tiers of local government have elected assemblies, while even the main inter-municipal entities (which are not subject to the Charter) have obtained directly elected assemblies. Therefore the rapporteurs believe that France could withdraw this declaration.

Article 3.2
Concept of local self government - Ratified with reservation

This right shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsible to them. This provision shall in no way affect recourse to assemblies of citizens, referendums or any other form of direct citizen participation where it is permitted by statute.

Consult reply indicated at article 3.1

Article 4.1
Scope of local self government - Article ratified

The basic powers and responsibilities of local authorities shall be prescribed by the constitution or by statute. However, this provision shall not prevent the attribution to local authorities of powers and responsibilities for specific purposes in accordance with the law.

In France there has been an ongoing procedure of decentralisation since the early eighties. Many additional new tasks have been transferred from the state to local and regional government. Although basic powers and responsibilities of territorial collectivities are not mentioned in the French Constitution, there are extensive provisions in several decentralisation laws as well as in other laws, such as the protection of the environment, education, social cohesion etc. Furthermore, French municipalities and departments traditionally fulfil several tasks on behalf of the state.

 

The so-called “general clause of competence” (clause générale de compétence) (see above, Chapter 3) that was temporarily abolished in France – and certain interpretations connecting this clause to the constitutional principle of free administration – appear harmonised with Article 4, paragraph 2 of the Charter, whereby local authorities should have full discretion to exercise their initiative for matters not excluded from their competence nor assigned to any other authority. The abolition of the general clause, had it taken place, could have constituted a violation of Article 4 paragraph 2 of the Charter, no matter whether it affected the municipal, the departmental or the regional level. The new law NOTRe (“Nouvelle Organisation Territoriale de la République” – see above) aims at rationalising and specifying the distribution of responsibilities among the sub-national tiers. There was much debate as to whether the final version of this law would clarify whether the general clause principle would be abolished, or whether it would be better defined in order to avoid competence overlap but at the same time leave enough room for local discretion to take initiative for matters not excluded from local authorities’ own competence according to Article 4 paragraph 2 of the Charter. In fact, after an appeal filed on the 22 July by at least 60 senators and 60 deputies, the Constitutional Council, in its decision of the 6 August 2015 criticised the method of election of the metropolitan councillors in the Greater Paris metropolitan area (Métropole du Grand Paris). The final version of the law NOTRe finally abolished the general clause of competence for regions and departments, while reinforcing the role of regions in economic development.

 

Article 4, paragraph 3 of the Charter introduces the subsidiarity principle whereby public responsibilities should be exercised “in preference” closest to the citizen. The same paragraph introduces the criteria whereby of the extent and nature of tasks, as well as the requirements of efficiency and economy should be taken into account in the allocation of responsibilities. The French Constitution states that territorial authorities should decide on all competence that can “better be dealt with at their level”. The decentralisation principle (Article 1 of the French Constitution) also supports the transfer of all tasks that can be performed at a sub-national level to a decentralised entity. The French Constitution does not explicitly introduce the principle of subsidiarity (as Article 4 paragraph 3 of the Charter does), since neither the decentralisation principle nor the rule of Article 72 paragraph 2, concerning the distribution of competence, incorporate subsidiarity. In practical terms this would mean that, including within sub-national governments, lower tiers would own a kind of prerogative of competence, since they would be “closer to the citizen” than the upper tier.

 

However, it seems clear to the rapporteurs that the up-scaling of competence and re-centralisation of responsibilities would not only face the restraints set by the aforementioned criteria of Article 4.3 of the Charter, but further obstacles created by the principle of decentralisation in the French Constitution. On the other hand, it should be clear that up-scaling of competence or even re-centralisation may be compatible with these principles and conditions when the nature and the extent of a task (e.g. concerning environmental protection) has drastically changed.

 

A point that was raised by most of the interlocutors that the rapporteurs met during their visit in France (including by the representatives of the Cour des Comptes) was the question of overlapping responsibilities and blurred competences. In some cases the application of the general competence clause across all tiers of local government has been blamed for this, and sometimes (as was the case in the Balladur report) the very design of the territorial organisation in France, including at least 4 sub-national tiers (including inter-municipal entities) and a plethora of specialised procedures could explain the hydra of overlapping responsibilities in France – which is an issue also in connection with paragraph 4 of Article 4 of the Charter. The new law NoTRE aims to clarify the distribution of responsibilities.

 

The provision of the Charter in Article 4 paragraph 6 about timely and appropriate consultation of local authorities when planning and decision-making processes directly concerning them has also been in the background of several discussions between the rapporteurs and representatives of associations or of single local and regional authorities. While most interlocutors agreed that the presence of many local politicians in the senate and consultation procedures with representatives of local/ government associations do have an important impact, there were complaints that single authorities are not heard (although some territorial collectivities are particularly affected), or even that local politicians change their views and attitude when they act as Senate members or at times when they are out of office. The latter should be no surprise, since senators have to adapt to their institutional role, namely to be part of parliamentary procedures and defend general interests of territorial collectivities and the local level, and not to promote particular interest of single authorities (see also para. 170 above).

 

In the literature about the French local government system, it is often stated that in reality, the French model is essentially based on co-operative decentralisation. On the political side, there is the strong representation of local and regional leaders in Parliament, 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: multiple mandates, meaning that the same person can be elected for different positions and not have to give any up: mayor, department counsellor, senator or deputy and minister. National representatives identify themselves with their territorial constituencies. Most presidents of the departments are senators, which makes them a powerful party lobby in Parliament. Furthermore, the Senate has a special role of representation 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 advice when preparing new projects. They make also direct proposals and work with parliamentary committees. Pressures from the central government, though, often succeed in having the Parliament adopt laws that are not welcome by local government practitioners - the 2009 business tax reform was an example, but this is commonplace in politics. A further example concerned the recent law on the regional merger which cause vehement reactions by many regions and was rejected by the Senate but finally passed through narrow majority vote of the National Assembly (see above, para. 170 et seq.).

 

There is a clear need to organise and institutionalise consultation channels and procedures. This is already the case concerning finance and sometimes other important aspects of local government performance. There are many institutions of co-operation between the State and the local governments. For instance, the very important National Committee of Local Finances, composed of representatives of ministries and local and regional authorities and chaired by a local politician. This committee has certain powers in the distribution of grants and must give advice on all regulatory decisions of the central government that have a specific impact on local finances. A further committee evaluates the compensation disbursed when new competences are transferred from the State to local and regional authorities. Another committee discusses the rules to be established for local government civil service, and so on. 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 collectivities. As a final finding, it can be stated, however, that the organisation of institutionalised consultation concerning other matters could be improved in a way that would also offer to single authorities easier access and more chances to be heard. The provisions of the Constitution concerning consultation with representatives of the territorial collectivities for overseas areas (e.g. in Article 72-4 of the Constitution) can be seen as good practices and good examples.

 

In conclusion France fulfils the requirements of Article 4 of the Charter.

Article 4.2
Scope of local self government - Article ratified

Local authorities shall, within the limits of the law, have full discretion to exercise their initiative with regard to any matter which is not excluded from their competence nor assigned to any other authority.

Consult reply indicated at article 4.1

Article 4.3
Scope of local self government - Article ratified

Public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen. Allocation of responsibility to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy.

Consult reply indicated at article 4.1

Article 4.4
Scope of local self government - Article ratified

Powers given to local authorities shall normally be full and exclusive. They may not be undermined or limited by another, central or regional, authority except as provided for by the law.

Consult reply indicated at article 4.1

Article 4.5
Scope of local self government - Article ratified

Where powers are delegated to them by a central or regional authority, local authorities shall, insofar as possible, be allowed discretion in adapting their exercise to local conditions.

 

Consult reply indicated at article 4.1

Article 4.6
Scope of local self government - Article ratified

Local authorities shall be consulted, insofar as possible, in due time and in an appropriate way in the planning and decision-making processes for all matters which concern them directly.

 

Consult reply indicated at article 4.1

Article 5
Protection of local authority boundaries - Article ratified

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.

 

Article 6.1
Appropriate administrative structures and resources for the tasks of local authorities - Article ratified

Without prejudice to more general statutory provisions, local authorities shall be able to determine their own internal administrative structures in order to adapt them to local needs and ensure effective management.

French legislation (also CGCT – Code General des collectivites territoriales) offers many different possibilities to sub-national territorial authorities for the organisation of their services. It is worth mentioning however, that financial administration of territorial authorities in France does not fall under the decision-making power of territorial collectivities but is run by state employees and the respective administrative units. During the monitoring visit, the interlocutors from French territorial authorities met by the rapporteurs did not consider this to be a problem and they highlighted to the rapporteurs the advantages of impartiallity and the excellent know-how that these financial services offer, claiming that de facto there are always points of interdependence. Therefore, co-operation with these state financial services operating on behalf of the territorial collectivities appears to work well.

 

Conditions of service in French local government have improved greatly and high-quality staff are now engaged in several territorial collectivities, while training and life-long learning are ensured through a series of efficient institutions (see supra human resources). Increased mobility of personnel offers better carreer perspectives and makes territorial collectivities more attractive than theywere.

 

Therefore, there seem to be no major challenges concerning the implementation of Article 6 of the Charter in France. Smaller municipalities are the exception, where mayors are obliged to solve a wide range of problems through their own means and resources, due to the lack of staff, as emphasised by the Representative of Rural Mayors to the rapporteurs. There is also lack of specialised staff in rural areas and municipalities and even in some departments, where stronger incentives and motives would attract better qualified staff.

Article 6.2
Appropriate administrative structures and resources for the tasks of local authorities - Article ratified

The conditions of service of local government employees shall be such as to permit the recruitment of high-quality staff on the basis of merit and competence; to this end adequate training opportunities, remuneration and career prospects shall be provided.

Consult reply indicated at article 6.1

Article 7.1
Conditions under which responsibilities at local level are exercised - Article ratified

The conditions of office of local elected representatives shall provide for free exercise of their functions.

In March 2015, a new law was adopted to facilitate local elected representatives in exercising their mandate, in accordance with Article 7 of the Charter. The rapporteurs received positive comments on this law, during their meetings with representatives of local and regional governmental associations and/or associations of different groups of elected persons. It was clear that the new law provides improvements for elected representatives, so that conditions of office are able to provide for the free exercise of functions according to Article 7 paragraph 1 of the Charter.

 

More precisely, this law stresses the need to offer better conditions to elected representatives for reasons of public interest, to be better able to meet the challenges of their mission. In Article 2, the law incorporated the “Charter of locally elected representatives”), introducing fundamental principles for the exercise of a local mandate (impartiality, diligence, integrity, dignity), and highlighting obligations concerning, for example, the conflict of interest (which is particular importance in local government and especially in small municipalities). The new lawexpanded the rights for special leave during the election campaign also for candidates in small municipalities under 1000 inhabitants (Article 6), it also provided the possibility to suspend labour contracts in municipalities with less than 10 000 inhabitants (previously the threshold was 20 000) for mayors, deputy-mayors, vice-presidents of EPCI’s and even members of an arrondissement council in the communes of Paris, Lyon and Marseille (Article 8), while it introduced provisions about the professional re-integration after two succesive mandates. Article 1 stipulated compensation rights for mayors of arrondissements in Paris, Lyon and Marseille who are not councillors of the cities. Furthermore, Article 3 also introduced compensation for members of inter-municipal councils (in communautés des communes). These new regulations corresponded to the provisions of Article 7 paragraph 2 of the Charter (see below). At the same time, the law introduced penalties for absence (Article 4) and further concretised the obligations of elected persons.

 

However, during the monitoring visit in France, there were still strong complaints from rural mayors highlighting their paradoxical situation, since they are obliged to spend much more time ontheir duties compared to mayors of largermunicipalities who have specialised staff, but rural mayors recieve much lower remuneration. Through the new law, the status for locally electedrepresentatives in municipalities with more than 2 500 inhabitants hasimproved, but in municipalities with less than 2 500 inhabitiants, they do not recieve an appropriate remuneration (the remuneration of the elected municipals depends on the population range the municipality belongs to, according to article L2123-23 of the Code Général des Collectivités Territoriales, “CGCT”. It is of €646,25 gross for mayors of municipalities with less than 500 inhabitants – €250,25 for a deputy mayor – and of €1178,45 for mayors of municipalities of 500 to 1,000 inhabitants – €313,62 for a deputy mayor) and they use their own means and ressources in order to be able to exercise their functions.

 

It is also worth mentioning that the recent law of 2014 (see above) prohibits cumulating local executive functions with a national parliamentary mandate (as deputy or senator) or a mandate at the European Parliament, starting from 2017. It seems that the French tradition of “cumul des mandats” willbe phased out gradually. These new incompatibilities are provided by law, in accordance with Article 7 paragraph 3 of the Charter. 

Article 7.2
Conditions under which responsibilities at local level are exercised - Non ratified

They shall allow for appropriate financial compensation for expenses incurred in the exercise of the office in question as well as, where appropriate, compensation for loss of earnings or remuneration for work done and corresponding social welfare protection.

France has declared not to be bound by Article 7 paragraph 2 this may now be outdated, since the new law of 2015 incorporating the “Charte de l’elu local” meets the requirements set by Article 7 paragraph 2. In addition, a withdrawal of this declaration would force the legislator to pay more attention to elected representatives in small municipalities, who still criticise the conditions they face when exercising their functions. Therefore, the rapporteurs believe that France should be able to withdraw this declaration.

Article 7.3
Conditions under which responsibilities at local level are exercised - Article ratified

Any functions and activities which are deemed incompatible with the holding of local elective office shall be determined by statute or fundamental legal principles.

Consult reply indicated at article 7.1

Article 8.1
Administrative supervision of local authorities' activities - Article ratified

Any administrative supervision of local authorities may only be exercised according to such procedures and in such cases as are provided for by the constitution or by statute.

According to the last paragraph of Article 72 of the French Constitution: “In the territorial collectivities of the Republic, the State representative, representing each of the Members of the Government, shall be responsible for national interests, administrative supervision and compliance with the law”. In addition to the Constitution, rules on supervision are included in common legislation, in accordance with Article 8.1 of the Charter.

 

Article 8.2
Administrative supervision of local authorities' activities - Article ratified

Any administrative supervision of the activities of the local authorities shall normally aim only at ensuring compliance with the law and with constitutional principles. Administrative supervision may however be exercised with regard to expediency by higher-level authorities in respect of tasks the execution of which is delegated to local authorities.

As already stated, France had a “traditional” tutelle system, including expediency control that was abolished during the major decentralisation reforms of the eighties. Nowadays, supervision concerns only compliance with the law (Article 8, paragraph 2).

Article 8.3
Administrative supervision of local authorities' activities - Article ratified

Administrative supervision of local authorities shall be exercised in such a way as to ensure that the intervention of the controlling authority is kept in proportion to the importance of the interests which it is intended to protect.

The currently system appears satisfactory and during the monitoring visit no complaints were made to the rapporteurs, especially in relation to any disproportional exercise of supervison (Article 8.3). Therefore, relevant provisions of the present French legislation and practice of state supervision comply with the Charter.

Article 9.2
Financial resources of local authorities - Article ratified

Local authorities' financial resources shall be commensurate with the responsibilities provided for by the constitution and the law.

Consult reply indicated at article 9.1

Article 9.8
Financial resources of local authorities - Article ratified

For the purpose of borrowing for capital investment, local authorities shall have access to the national capital market within the limits of the law.

Consult reply indicated at article 9.1

Article 9.7
Financial resources of local authorities - Article ratified

As far as possible, grants to local authorities shall not be earmarked for the financing of specific projects. The provision of grants shall not remove the basic freedom of local authorities to exercise policy discretion within their own jurisdiction.

Consult reply indicated at article 9.1

Article 9.6
Financial resources of local authorities - Article ratified

Local authorities shall be consulted, in an appropriate manner, on the way in which redistributed resources are to be allocated to them.

Consult reply indicated at article 9.1

Article 9.5
Financial resources of local authorities - Article ratified

The protection of financially weaker local authorities calls for the institution of financial equalisation procedures or equivalent measures which are designed to correct the effects of the unequal distribution of potential sources of finance and of the financial burden they must support. Such procedures or measures shall not diminish the discretion local authorities may exercise within their own sphere of responsibility.

Consult reply indicated at article 9.1

Article 9.3
Financial resources of local authorities - Article ratified

Part at least of the financial resources of local authorities shall derive from local taxes and charges of which, within the limits of statute, they have the power to determine the rate.

Consult reply indicated at article 9.1

Article 9.1
Financial resources of local authorities - Article ratified

Local authorities shall be entitled, within national economic policy, to adequate financial resources of their own, of which they may dispose freely within the framework of their powers.

In France, the constitutional reform of the 28 March 2003 integrated important rules and principles in Chapter XII of the Constitution that considerably strengthened the position of territorial communities in the French Republic.

 

The new constitutional norms have consolidated the status of local finance. There are also statements about the leading idea of a “pouvoir financier” local, which is the essence of the new Article 72-2 of the Constitution. This guiding principle allows territorial authorities to have enough financial resources so as to be sufficiently autonomous concerning their origin and their use.

 

As to the use of financial resources, even before the amendment of 2003, the Constitutional Council examined the question of the harmonisation of obligatory expenses provided by the law, with the constitutional principle of free administration. Such laws should have a general interest purpose which takes into account the own competence of collectivities.

 

The so-called principle of “own local fiscality” within the meaning of Article 72-2 paragraph 2 of the Constitution means the concrete capacity of the municipalities to receive taxes of which they can determine the base and the rate within the framework designed by the law. The imposition taxes remains an exclusive power of the state in France: According to Article 34 of the French constitution, the law determines the base, the rate and the collection modalities for taxes of all kinds” of taxation.

 

The French Constitution (Article 72-2) also enshrines the principle of a “determinant” level of “own resources”. The incorporation of this principle in the French Constitution after the amendment of 2003, was a response to previous negative developments concerning the ratio of own resources within total revenue of local government. In fact, since 1990, the ratio of own resources had constantly been suppressed while at the same time the portion of state grants grew constantly. While territorial collectivities could determine, within limits determined by law, the base and the ratio of their own taxes and could configure and mobilise these taxes according to their own priorities, they had little influence on state taxes and state grants. Between 1997 and 2002, the percentage of own resources in total revenue dropped from 58.2% to 54.7% for the municipal sector (municipalities and inter-municipal sector) from 58.3% to 52.2% for departments and from 57.8% to 36.5% for regions. The Constitutional Council had stated that the decrease of own resource should not reach the point where the principle of their free administration would be violated, however it did not go further and formulate operational criteria for assessment. Therefore, local politicians took advantage of the constitutional revision of 2003 and promoted the incorporation of the aforementioned principle of the “determinant” level of “own resources” in order to restrain tendencies of replacing own resources through state grants.

 

The organic law of the 29 July 2004 defined that the part of own resources within total revenue of territorial collectivities (sub-national governments) cannot be inferior to the corresponding level / percentage that was registered for 2003. The “ratio of financial autonomy” therefore has a reference of 60.8% for the municipal sector (municipalities and inter-municipal entities-EPCI), 58.6% for departments and 41.7% for regions. This rule meant no more than safeguarding the status-quo, nevertheless it caused serious difficulties to the legislator whenever new additional competences of territorial collectivities should be financed, just as it had during the functional reforms (transfer of competence to sub-national governments) in the period 2003-2004.

 

The national government is obliged by law to submit a special report each year to the Parliament about the evolution of this “ratio of fiscal autonomy”. If this minimum ratio of 2003is not maintained, the legislator should adopt appropriate measures, in the second year after this statement, at the latest (CGST, Article LO 1114-4). In reality, however, if the legislator restrains from taking measures necessary to restore the autonomy ration, there is no sanction, since possible violations of the Constitution by omission (failure to act), are not able to be checked  under the French legal system. In practice however, the “ratio of fiscal autonomy” has been respected and even improved in recent years (see tables on paragraph 226 of the report).

 

According to the figures presented in the tables, there is a constant improvement of the autonomy ratio for all 3 tiers of territorial collectivities in France. Municipalities and EPCI’s began with a ratio of 60.8% in 2003 that reached 65.5% in 2012. Departments improved even more, rising from 58.6% in 2003 up to 67.7% in 2012. Even the regions experienced remarkable progress, starting with a very low 41.7% ratio that reached 54.2% in 2012.

 

This picture, however, is not entirely accurate, owing to extensive interpretation of the notion of “own resources” in previous years. This was the case with the transfer to the departments of a part of the interior tax on petroleum products, as a type of compensation for the additional fiscal burden caused to departments through the social assistance competence. In reality, it was a form of endowment since the amount is attributed by the state to each department according to fixed local needs, which means that the department may not define the rate or the tax base. But the law considers taxes as “local” and part of “own resources” where the rate or/and the local part of the tax base is especially determined for each territorial collectivity because it can be “localised”, although the fiscal performance of this tax cannot be influenced in any way by the local authority itself.

 

The Constitutional Council has accepted this extensive interpretation of the notion of “own resources” for several years. More recently, in a case also concerning the contribution to added value of businesses which it considered as part of own resources, although the territorial collectivities cannot determine the rate, because the part of the tax base received by the respective collectivity is locally determined, it is defined by the territory where the business can be “localised” (considerations sub-paragraphs 60-65). The Constitutional Council further decided (in the same decision that also concerned the reform/abolition of the professional tax and replacement with new taxes) (see Chapter 3), that there is no fiscal autonomy for territorial collectivities in the French Constitution (sub-paragraph 64). The judges stated that this reform did not violate the principle of "financial autonomy" of communities, according to the rule introduced in the constitutional amendment of 2003 because it did not violate the autonomy ratio of that year (see supra). The Constitutional Council has noted that the substitution of resources guaranteed by the state in the year 2010, in the form of additional allocations or new taxes remain "above the 2003 reference year". In this decision, however, the Council did not rule on the question of a possible violation of the Constitution (Article. 72-2) when territorial communities are increasingly becoming financially dependent on the state.

 

The French Constitution also addresses the question of financial equalisation (Article 72-2). In France equalisation is defined as a redistribution mechanism for the purpose of reducing inequalities in financial resources between rich and poor territorial collectivities. Legally, this is seen as a conciliation between the principle of liberty and the principle of solidarity and it is not considered to be a subjective right of each collectivity that could give rise to lawsuits and constitutional complaints. In fact the French equalisation system has, in the first place, a horizontal component through the respective funds (fonds) that exist for the municipal sector (“fonds national des recettes fiscales intercommunales et communales”, since 2010), and the departments (“fonds national de perequation des droits de mutation à titre onéreux”, since 2011). It is also worth mentioning the special fund for the Ile-de-France region, where extreme inequalities prevail, created in 1991 (“Fonds de solidarite entre les communes de la region Ile-de-France” – FSRIF). Secondly, there is also a vertical component of the equalisation system, through the distribution of state grants, especially through the most important one, the DGF (“Dotation globale de fonctionnement”). There are also the “Fonds national de perequation des recettes de cotisation sur la valeur ajoutee des enterprises” (CVAE), the  “Dotation de solidarite urbaine” (DSU, for “urban solidarity”) and the “Fonds nationaux de garantie individuelle des resources” (FNGIR) that, since 2011, aims to compensate for losses of fiscal resources. Finally, equalisation measures are often provided on an ad hoc basis when competence is transferred (“dispositifs punctuels”), under the respective provision of the French Constitution (Article 72-2). The fact that vertical mechanisms are the most important for equalisation in France, means that equalisation is particularly sensitive to switches and variations of the state budget, while it currently reflects the decrease of state grants.

 

An institution that is particularly important is the Committee of Local Finance (“Comité des finances locales”- CFL) which was established by law in 1979 with the mission to defend the financial interest of local collectivities and to harmonise their position with that of the state. The composition of the CFL is defined by Article L. 1211-2 CGCT (“code général des collectivités territoriales”) and it comprises 32 incumbent elected members (representatives of parliamentary assemblies and elected representatives of regions, departments and municipalities or EPCI’s) and 11 incumbent representatives of the state whose list is defined by decree. Among the different tiers of territorial collectivities, it appears that the municipal sector has the strongest influence in the CFL, as different interlocutors from local government associations, the Cour des Comptes and the Ministry of Finance stated to the rapporteurs during the monitoring visit.

 

CFL meetings take place four to five times per year. According to Article L. 1211-3 (CGCT), the Committee controls the distribution of the DGF (the main state grant). The government may also request consultation on every legal measure of financial character affecting the local authorities. This consultation is obligatory when it comes to the issue of decrees. The Committee also has the mission to provide to the government and the parliament with every necessary analysis for the elaboration of projects concerning local finances. The CFL made an important contribution to the elaboration of equalisation mechanisms.  The Decree no 2008-994 of 22 September 2008 established a special consultative committee within the CFL for the evaluation of norms (“commission consultative d'évaluation des norms”) with 22 members having the - very important – duty to assess the financial impact of new norms or techniques, whether of national or local/regional origin. The very existence of the CFL means that, in principle, the standards set by Article 9 paragraph 6 of the Charter, are met in the case of France.

 

In view of the aforementioned characteristics of the financial status of local and regional authorities in France, the rapporteurs consider, concerning Article 9 paragraph 1 of the Charter, that French “territorial collectivities” do indeed have the ability to set spending priorities, although a large part of their spending is pre-defined through tasks and responsibilities to be fulfilled according to the law, particularly in the field of social policies (and more especially the departments).

 

Further the Charter provides for “adequate own resources (Article 9 paragraph 1) and that a “part at least of the financial resources” should “derive from local taxes and charges” (Article 9 paragraph 3). According to the Charter, local authorities should also (but “within the limits of statute”) have the power to “determine the rate” (Article 9 paragraph 3) of these local taxes and charges. It is clear, that the “financial autonomy ratio” (with the year 2003 as a fixed minimum) of the French law (see above) is certainly a positive framework in order to ensure that this part of “own resources” remains important and prioritisation of revenue through local political decisions on local taxation remains, therefore, possible. Extensive interpretation of the notion of “own resources” (see above) gives reason for scepticism, since the tax rate is sometimes defined by national decision but the corresponding revenue is considered to be “own revenue” because this rate is defined separately for each collectivity (is “localised”). In such cases, it should be made clear that this “extensive interpretation” is not compatible with the provisions of Article 9 paragraphs 1 and 3 and the logic of the Charter about own financial resources and local power to determine the rate of local taxes in order to achieve accountability for weighting the benefit of services against the cost to the taxpayer. During the meetings held by the rapporteurs in France it was unfortunately, clear to the delegation that the prevailing tendency is to recentralise decision-making on tax rates and bases.

 

French territorial collectivities have received a number of new additional responsibilities. During the meetings of the rapporteurs with representatives of local government associations and single local governments, many interlocutors complained that their financial resources are not commensurate with new additional responsibilities delegated to local government (especially to departments). An important shortcoming is that the cost of the respective services is estimated at the moment of competence transfer and the dynamic character of cost development in time is not sufficiently taken into consideration, although the French Constitution also incorporates the principle of commensurate resources. This problem that is emerging in many countries experiencing decentralisation reforms and functional re-scaling but where the provisions of Article 9 paragraph 2 of the Charter are not accordingly respected. A possible solution for France may be to further enhance the role of the Committee for Local Finance (CLF), where know-how about cost burdens of different tasks exists and can further be developed, possibly through  the commission consultative d'évaluation des norms (see above).

 

The Congress information report in 2000 raised the issue of consolidation of territorial authorities’ financial resources from taxation. Up to now, little progress has been made and financial resources derive from a wide variety of different taxes and contributions. One could claim that this variety meets the provision of the Charter (Article 9 paragraph 4) for “sufficiently diversified” resources that can “keep pace as far as practically possible with the real cost of carrying out their tasks”. In fact, however, the large number of different taxes (especially the many dozens of “small” taxes) is creating a “fiscal illusion” for citizens (where it is not clear who is paying for what service) and frustrates accountability, while it drastically increases managing costs. The Ministry of Finance is willing to simplify and consolidate this fragmented structure of financial resources, as was said during the visit of the rapporteurs.

 

Allocation of redistributed resources to local authorities should be made after consultation with them according to Article 9 paragraph 6 of the Charter). In France, the institution of the CLF (Committee of Local Finance) seems to fulfill this requirement of the Charter. It should be noted, however, that the financial equalisation schemes adopted in France (see supra) could be further elaborated and sophisticated. Up to now, these equalisation schemes are mainly vertical or competence-oriented, thus depending on the overall financial situation of the state and fiscal priorities of central government. Horizontal equalisation acts within each tier of territorial governance (municipal sector, departments, regions) and does not cross-cut different tiers, which would however be strongly recommended, since there are major inequalities between municipalities within the same department and/or region. Representatives of the Cour des Comptes, made clear that such an equalisation cross-cutting different tiers would be welcome as well as mobilisation of the global DGF for equalisation. It should be noted that the Ministry of Finance is also preparing the reform of DGF).

Article 9.4
Financial resources of local authorities - Article ratified

The financial systems on which resources available to local authorities are based shall be of a sufficiently diversified and buoyant nature to enable them to keep pace as far as practically possible with the real evolution of the cost of carrying out their tasks.

Consult reply indicated at article 9.1

Article 10.1
Local authorities' right to associate - Article ratified

Local authorities shall be entitled, in exercising their powers, to co-operate and, within the framework of the law, to form consortia with other local authorities in order to carry out tasks of common interest.

France is probably the European nation with the richest history of inter-municipal cooperation that already began in the 19th century. Today, French municipalities have a very wide spectrum of possibilities to develop co-operation, not only through the formation of inter-municipal entities, but also through different sorts of public contracts. Nearly all French municipalities are involved in some kind of inter-municipal cooperation, while cross-border cooperation (Article 10 paragraph 3 of the Charter) has also been practiced for decades. French territorial collectivities may also participate in a European Grouping of Territorial Collaboration (EGTC) in order to promote transnational and/or interregional co-operation in order to strengthen economic and social cohesion.

 

A major reform concerning inter-municipal cooperation was initiated through the law of 16 December 2010, when a procedure of territorial re-structuring of inter-municipal co-operation through the EPCI was promoted, setting the minimum size for the formation of such EPCI’s with own fiscal powers at the number of 20 000 inhabitants, which is considered to be more adequate for public services.

 

As already mentioned, France declared, in accordance with Article 13 (‘authorities to which the Charter applies”), that the local and regional authorities to which the Charter applies are the territorial authorities which are named in Articles 72, 73, 74 and in Title XIII of the Constitution or which are created on their basis. The French Republic would therefore consider that the public establishments of intercommunal (intermunicipal) co-operation, which are not territorial collectivities, are excluded from the scope of application of the Charter. However, in the opinion of the rapporteurs, this does not mean that the territorial collectivities themselves are not subject to the provisions of Article 10, which does not protect the establishments of intermunicipal co-operation as such, but the right of local authorities to associate and co-operate with each other.

 

Concerning transfrontier co-operation (see also Art. 10 paragraph 3 of the Charter) it should be reiterated that France signed the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities (ETS no. 106) on 10 November 1982 and ratified it on 14 February 1984. The Outline Convention entered into force on 15 May 1984. France signed on 9 November 1995 and ratified on 4 October 1999 the Additional Protocol to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities (ETS no. 159), which entered into force on 5 January 2000. France has not signed Protocol No. 3 to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities concerning Euroregional Co-operation Groupings (ECGs) (CETS No. 206).

 

Article 10 paragraph 2 of the Charter guarantees the right of local authorities to belong to an association. In France there are several associations promoting the interests of local authorities. Concerning the first tier, however, is the Association of Mayors of France (AMF) and the Association of Rural Mayors (AMRF), furthermore there are several associations of municipalities sharing common characteristics, such as the Association of forestry municipalities, the Association of Municipalities in mining areas, etc. For the second tier there is the Assembly of French Departments (ADF) and the Association of French Regions (ARF). It is clear that French territorial governments and their elected representatives are strongly engaged in a variety of different associations, but the question arising is whether such fragmentation is good for the promotion of common interests of the territorial collectivities. One could consider whether it would make sense to have special legal provisions, introducing, “umbrella” associations that would better be in the position to represent all local governments and better promote their interests.

Article 10.2
Local authorities' right to associate - Article ratified

The entitlement of local authorities to belong to an association for the protection and promotion of their common interests and to belong to an international association of local authorities shall be recognised in each State.

Consult reply indicated at article 10.1

Article 10.3
Local authorities' right to associate - Article ratified

Local authorities shall be entitled, under such conditions as may be provided for by the law, to co-operate with their counterparts in other States.

Consult reply indicated at article 10.1

Article 11
Legal protection of local selfgovernment - Article ratified

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 enshrined in the constitution or domestic legislation.

Local authorities shall have the right of recourse to a judicial remedy in order to secure the free exercise of their powers and respect for such principles of local self-government as are enshrined in the constitution or domestic legislation.

 

Free administration (“libre administration”), as mentioned in 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, and very cautiously in favour of decentralisation. Its voluminous case law has developed since new (2009) procedures allow a litigant in any ordinary suit to claim that a law violates the constitution and should therefore be examined for conformity by the Constitutional Council (the “constitutionality question”). This has been used by many local governments, often with success, to contest laws that had been in force for a long time.

 

Legal protection of local autonomy in France is guaranteed by the Constitution, by the European Charter of Local Self-Government, and by the Constitutional Council. More concretely, the administrative courts decide hundreds of cases each year opposing the State and local and regional authorities, or between those bodies. For example, decisions on the grants allocated to a given local community may 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 authority.

 

France has a specialised administrative jurisdiction that traditionally had the monopoly to regulate government bodies and agencies in their relations with citizens and in their relations together. Local and regional authorities may also challenge any decision taken by state authorities or other local bodies, either on individual adjudications or regulations, including decrees of the president, the prime minister or the prefect (préfet). Combined with access to the Constitutional Council, these should be deemed as sufficient judicial protection. The Conseil d’Etat (the Council of State) generally has a balanced case law. On the basis of an ambiguous provision in the Municipal Act of 1884, it recognised that municipalities had a general clause of competence to act autonomously in all matters of local interest, as long as there is no legal prohibition or explicit power given to another authority. But the courts also take care to preserve the core power of central government, within the logic of a unitarian state and legal system.

ACCESSION

to the Council of Europe 5 May 1949

RATIFICATION

of the European Charter of Local Self-Government 17 January 2007

CONSTITUTION | NATIONAL LEGISLATION

The principle of local government is explicitly recognised in the French Constitution, in Article 1 paragraph 1 which (since the amendment of 2003) states that the organisation of the French Republic is decentralised.



28Ratified provision(s)
1Provision(s) with reservation(s)
1 Unratified Provision(s)
23Compliant Provision(s)
0Partially Compliant Provision(s)
5Non-compliant Provision(s)