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Andorra - Monitoring report

Date of the monitoring visit: from 19 to 20 September 2024

Report adopted on: 27 March 2024

Files : Report CPL(2024)46-02 | Recommendation 505 (2024)
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This is the second monitoring report on the application of the Charter in Andorra.

The rapporteurs conclude that the country’s system of local self-government works well and that the obligations of the Charter are generally fulfilled.

They note that the level of local democracy is satisfactory and that a culture of consultation and dialogue between local and national authorities exists. They also note that Andorran municipalities have broad competences and sufficient financial and human resources. The rapporteurs also highlight the existence of a constitutional guarantee for parishes as they are directly represented in the Andorran Parliament.

The report however highlights a number of issues that deserve particular attention. For example, the absence of law providing for consultation and negotiation procedures between national and local authorities, as well as the lack of specific autonomy granted to the capital Andorra la Vella. The rapporteurs also stress that Articles 9.2 and 9.5 of the Charter have still not been ratified, despite the fact that they are currently applied in practice.

Therefore, it is recommended to formalise in the legislation the mechanisms for consultation between national and local authorities, and to establish a specific autonomy for the capital Andorra la Vella to take into account its particular situation compared to the other municipalities. The Andorran authorities are also encouraged to sign and ratify the Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority (CETS No. 207) and to ratify Articles 9.2 and 9.5 of the Charter.

Article ratified Ratified with reservation Non ratified

Compliance Partial compliance Non compliance To be determined

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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.

In accordance with a long tradition of local self-government which is deeply rooted in the history of the Principality of Andorra, this principle is recognised in Article 79.1 of the Constitution, which provides that “the Comuns, as bodies representing and administering the parishes, are public authorities with legal personality and the power to enact local regulations, subject to the law, in the form of orders, regulations and decrees. Within the area of their jurisdiction and subject to the Constitution, the law and tradition, they function according to the principle of self-government, recognised and guaranteed by the Constitution”.

Under Article 1 of the Qualified Law on the powers of Comuns of 4 November 1993, “parishes are political and administrative entities which make up the territorial structure of the State of Andorra and take part in the preparation of national policy through constitutionally established procedures and institutions. Their interests are expressed, managed and protected by the Comuns in accordance with the principle of self-government (autogovern)”.

Article 7 of the Qualified Law of 4 November 1993, as amended by the Law of 20 October 2017, provides for its part that “the financial and fiscal power of the Comuns derives from the fundamental fiscal power of the state. However, without prejudice to the necessary co-operation with the state, the powers assigned to the Comuns by this law pursuant to Article 80.2 of the Constitution shall be exercised according to the principle of self-government”.

The rapporteurs therefore consider that the system currently in force in Andorra fully meets the requirements of Article 2 of the Charter.

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.

In Andorra, the Qualified Law on the powers of Comuns of 4 November 1993, as amended most recently by the Law of 20 October 2017, gives a detailed list of the powers of the Comuns, which appear to be very broad in scope (cf. above § 26).

One particular area in which the state still has jurisdiction is in education, which is usually a local government responsibility in other countries but is managed by the state in Andorra because of its small size. On the other hand, the Law of 11 May 1995 on childcare facilities (Llei de guarderies infantils) assigns responsibility for nursery schools to the Comuns.

Under Article 79.1 of the Constitution, local authorities have “the power to enact local regulations, subject to the law, in the form of orders, regulations and decrees. Within the area of their jurisdiction and subject to the Constitution, the law and tradition, they function according to the principle of self-government, recognised and guaranteed by the Constitution”. During meetings between the Congress delegation and the local authorities, the latter did not call for any extension of their powers.

In view of the extent of powers devolved to the Comuns, the rapporteurs consider that the system currently in force in Andorra meets the requirements of Article 3.1 of the Charter.

Article 3.2

Concept of local self government - Article ratified

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.

The right to local self-government in Andorra is exercised by elected bodies called Comuns, which are described in Article 79.1 of the Constitution as “bodies representing and administering the parishes”. Each Comú sets the size of its council according to its population. The number of elected members may range from 10 to 14 councillors. All council members are elected by universal suffrage for a four-year term in accordance with Article 79.3 of the Constitution.

Election is by a proportional representation list system adjusted to produce a majority. Half of the seats are assigned to the party with the largest number of votes. The other half is assigned in proportion to the number of votes obtained by each party, including the one which won the election. This system guarantees that the party which comes first in the election has an absolute majority but also that minority lists are represented.

Under Article 16 of the (consolidated) Qualified Law of 12 December 2022 on the electoral system and referendums, lists of candidates for general elections and municipal elections must be balanced between women and men so that at least 40% of the candidates are from the under-represented sex. When there are fewer than five seats to be filled, the proportion of women and men must seek the greatest numerical balance possible. The result is that women are well represented on local councils (numbering 3 out of 12 councillors in Encamp, 3 out of 10 in Ordino, 5 out of 12 in la Massana, 5 out of 12 in Escaldes-Engordany and reaching parity (6 out of 12) in Andorra la Vella and San Julia de Loria).

Election turnout varies from Comú to Comú but is higher in the less populated Comuns. For instance, turnout at the 2019 municipal elections was 49% in Andorra la Vella and la Massana and 70% in Canillo.

Following the 2019 elections, three women were elected as mayors and four as deputy mayors.

The rapporteurs consider that the system currently in force in Andorra meets the requirements of Article 3.2 of the Charter.

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.

Article 79.2 of the Constitution provides that “the Comuns represent the interests of the parishes, approve and implement the municipal budget, devise and implement their public policies within the bounds of their territory and manage and administer all parish property, whether they are municipal, public, private or heritage items”.

Article 80 of the Constitution gives a non-exhaustive list of the Comuns’ powers:

(a) population census; (b) drawing up electoral rolls; participation in the organisation and conduct of elections according to the procedures prescribed by law; (c) popular consultation processes; (d) commerce, industry and professional activities; (e) setting parish boundaries; (f) private property and public property of the Comuns; (g) natural resources; (h) land registers; (i) town planning; (j) public thoroughfares; (k) culture, sport and social activities; (l) municipal public services.

The Qualified Law (Llei Qualificada) on the powers of Comuns of 4 November 1993, last amended by the Qualified Law of 20 October 2017, implements the Constitution. It goes beyond the list in Article 80 of the Constitution, describing the Comuns’ powers in more detail. With due regard for state prerogatives, this Qualified Law establishes the powers which are granted to the Comuns for them to exercise their functions in the economic and fiscal sphere. These relate in particular to the exploitation of natural resources and the related revenue, taxes and fees for municipal services, administrative licences, establishment of commercial, industrial and professional activities, and real estate. State powers could now also be transferred by law to the parishes, which had not been the case until the adoption of this law.

The rapporteurs consider that the system currently in force in Andorra meets the requirements of Article 4.1 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.

Under the Qualified Law on the powers of Comuns of 4 November 1993, powers neither assigned nor delegated to the Comuns lie with the state (Article 3.3). The list of powers devolved to the Comuns by the Law of 2017 amending the Law on the powers of Comuns is considerably longer than the one drawn up in 1993 and covers the main areas of municipal activity. In addition, Article 4.16 of the Law of 1993 amended in 2017 assigns powers to the Comuns for “the organisation of any activity and the provision of other public services designed to fulfil the needs and interests of the parish community”. This resembles a general competence clause and at the least, enables Comuns to intervene in areas which are not expressly included on the list of powers falling within their remit.

Furthermore, the Congress delegation was told about projects run jointly by the Government and the Comuns, particularly in the areas of culture and sport (assistance for artists, organisation of festivals, etc.). The Government and the Comuns also worked closely together to combat the effects of the Covid-19 pandemic.

At the various meetings held during the monitoring visit, none of the local authority representatives raised any issues with regard to the discretion they are afforded.

Consequently, the rapporteurs consider that the system currently in force in Andorra meets the requirements of Article 4.2 of the Charter.

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.

The principle of subsidiarity laid down in Article 4.3 of the Charter must be interpreted with due regard for the country’s size, which means that it can only have limited significance in Andorra. Moreover, under the Law of 20 October 2017, which was drawn up in consultation with the Comuns, local powers and responsibilities are assigned to the Comuns, and they do not currently harbour any desires to be assigned further powers. As stated in the Qualified Law on the power of Comuns of 4 November 1993, powers which have been neither assigned nor delegated to the Comuns lie with the state (Article 3.3).

The rapporteurs consider that the division of powers between the state and the Comuns applies the principle of subsidiarity and that the system currently in place in Andorra meets the requirements of Article 4.3 of the Charter.

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.

It should be noted firstly that when exercising their powers, the Comuns have autonomous regulatory authority to draw up and apply norms to manage and supervise public finances and taxation.

There is legislation which allows the state to encroach on the Comuns’ sphere of competence in specific circumstances. For instance, Article 4 of the Law of 1993, as amended in 2017, on the powers of Comuns provides that they must transfer municipal land and property which are to be used for a project of national interest or a sectoral plan to the Government free of charge.

Furthermore, although the Comuns are in principle responsible for the construction, maintenance and improvement of all secondary roads, the Government must see to the maintenance of all the secondary roads listed in a Government Order of 25 July 2007 designating secondary roads, including roundabouts but not including any landscape or decorative features installed by the Comuns. The result is that in practice, the maintenance of embankments is the responsibility of the Comuns while that of roadside walls is that of the Government. In the event that secondary roads are very seriously damaged by incidents caused by natural hazards, the Government is required to carry out the necessary work for traffic to resume safely. Some infrastructure work (bypasses for example) may be financed jointly by the Government and Comuns. For instance, the la Massana bypass was financed by €25 million from the Government and €5 million from the Comuns.

Lastly, it should be pointed out that Comuns’ powers in the area of town planning and land use (such as issuing building licences) must be compatible with the General Law on regional and town planning of 17 November 2000 (as amended in 2018), which has limited the autonomy of local authorities to some degree where it comes to enacting norms in this area, particularly where the aim of national plans is to establish or build services or infrastructure of general interest.

A major issue at the moment is spatial planning and the continuation of construction activities because of the large increase in Andorra’s population in recent years. There are fewer and fewer areas in the country which are suitable for construction.This stems from the fact that 90% of Andorra’s territory belongs to public authorities and only 10% can be built on. A moratorium on foreign investment in real estate has been adopted recently. To meet this challenge, a law adopted in 2022 provides that Comuns must carry out a detailed impact study to assess their ability to cope with an increase in their population whether in terms of water resources, sanitation or public services (schools, roads, hospitals, housing, etc.), the aim being to determine the maximum population that each parish can accommodate. A new urban development plan will be adopted in the light of the results of these studies.

These problems are no reason, however, to find that the powers assigned to local authorities are not full and exclusive. During their meetings with the Congress delegation and in their written contributions, the Andorran local authorities considered that the division of powers between the various tiers of government were satisfactory and clear.

Consequently, the rapporteurs consider that the system currently in force in Andorra meets the requirements of Article 4.4 of the Charter.

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.

This provision does not raise any particular problem in Andorra insofar as the Comuns have not yet received any delegation of powers from the state. During the visit by the Congress delegation, no comment was made on this issue.

Consequently, the rapporteurs consider that Andorra complies with Article 4.5 of the Charter.

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.

Andorra has a prevailing culture, deeply rooted in its history, of consultation and close dialogue between the Government and the local authorities. This is facilitated by the country’s small dimensions, which allow for informal meetings and consultations. As a result, the reforms in recent years of the powers of the Comuns and their financial resources were the subject of prior consultations. The latest Qualified Law on the powers of Comuns of 20 October 2017 was prepared by a tripartite commission made up of representatives of parliamentary groups, the Government and the Comuns designed to enable all the stakeholders to be involved and the broadest possible consensus to be sought. The qualified laws on financial transfers (of 4 November 1993, 20 October 2017 and 18 October 2018) were the result of lengthy talks between the Government and the Comuns, which met from 2010 onwards with the goal of promoting the necessary changes to guarantee the sustainability of state finances and the provision of services to citizens. An “institutional” agreement between the Government and the Comuns was concluded on 28 April 2014 and served as the basis for the subsequent legislation on the powers and finances of the Comuns.

There is also regular consultation and dialogue between the two representatives of each parish with seats in the Consell General and the municipal authorities. Informal meetings and discussions are also held, and these are generally seen in a positive light by the Comuns, as reported in our meetings with representatives of the country’s local authorities. It should be noted, however, that in his meeting with the Congress delegation, the Mayor of Andorra la Vella expressed his desire for these discussions to be put on an institutional footing.

The co-operation between central government (the state) and the Comuns formed the subject of a law of 20 December 2017, which sets up the paths and procedures through which the general principles of institutional loyalty and co-operation can be put into practice while bearing in mind Andorra’s specific circumstances. The implication is that when taking action, the various authorities must take other authorities’ legitimate interests into account, that such action must not hamper the legitimate exercise of powers held by others and that authorities must work together actively so that other authorities can perform their functions efficiently and effectively (Article 1). By virtue of the same principles of loyalty and co-operation and the need for public policy to be efficient and effective, central government and the Comuns must provide one another with the information that is available to them and necessary for them to perform their functions properly (Article 3). Lastly, central government and the Comuns must provide each other with the mutual assistance they need to carry out their respective functions (Article 4).

During his meeting with the Congress delegation, the Minister for Institutional Relations, Education and Universities expressed his desire for a general law to be adopted to institutionalise the various forms of discussion and consultation which already exist in practice. The main difficulty if any such consultation or discussion body were set up would be to provide for the balanced representation of parishes, reflecting their population.

Lastly, it should be pointed out that the seven Comuns of Andorra have a joint right of legislative initiative. Under Article 58.2 of the Constitution, bills may be tabled in the Consell General by three Comuns acting together. It should also be said that all the bills that have ever been tabled by Comuns were adopted by the Consell General.

Consequently, the rapporteurs consider that local authorities are consulted in due time and in an appropriate way on matters concerning them directly and hence that the requirements of Article 4.6 are met.

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.

Consultation must take place in good time, before a final decision on the matter is made. Consultation in accordance with the Charter does not rule out obligatory mergers or boundary changes, provided that the procedures are prescribed by law.

Under Article 79 of the Constitution, the Comuns are the representative and administrative bodies of the parishes, whose existence is recognised in Article 1.5. “Andorra is composed of the Parishes of Canillo, Encamp, Ordino, la Massana, Andorra la Vella, Sant Julià de Lòria and Escaldes-Engordany”. Their number increased to seven with the creation, by a Decree of the Co-princes of 14 June 1978, of Escaldes-Engordany, which was separated from the parish of Andorra la Vella in response to a 30-year-old demand from the local people to be given their own Comú.

Changes to local authorities’ boundaries may be made on the basis of agreements between Comuns, final court rulings or international treaties signed by the Principality of Andorra which apply by extension to the Comuns.

As the number and name of the parishes is expressly referred to in the Constitution, any merger of the parishes would require a revision of the Constitution in accordance with the procedure provided for in Article 106, which calls for a national referendum: “revisions of the Constitution shall be adopted by the Consell General by a majority of two-thirds of its members. The proposal shall then be submitted immediately to ratification by referendum”.

Consequently, the rapporteurs consider that the requirements of Article 5 of the Charter are met.

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.

The Qualified Law on the powers of Comuns of 1993, as amended in 2017, grants Comuns the power to establish their own internal organisation and functioning, in accordance with the Constitution, general laws and customs and traditions (Art. 4.14).In 1995 the Comuns had already adopted common rules on their functioning (Reglament de funcionament dels Comuns). To update these rules, all the Comuns adopted the Order of 29 December 2011 on their organisation and functioning. This clarifies and strengthens the role of the mayor and, through delegation, the deputy mayor, and gives more detail about the functions of the governing council of the Comú, the Junta de govern. It also deals with the internal organisation and functioning of committees, which may be standing or ad hoc committees, and the powers that can be delegated by the Junta de govern, which is the cornerstone of the entire structure. A regulation on the Secretary General was retained. The order also refers to the applicable legislation in areas which affect the functioning and the organisation of the Comuns but, because of their characteristics or their scope, are already covered by other legislation such as the number of councillors in each Comú. The order also states that it is for each Comú to approve its own rules of procedure, which may clarify and complement the provisions of the order.

Consequently, the rapporteurs consider that Andorra complies with Article 6.1 of the Charter.

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.

The Law of 17 January 2019 on the civil service lays down rules which also cover local government officials. Some Comuns would like more flexibility so as to have more discretion over the management of staff. The Order of 29 December 2011 on the organisation and functioning of the Comuns provides that the Secretary General of the Comú is freely appointed and dismissed by the municipal council on the proposal of the mayor. His/her term of office expires at the latest at the same time as that of the council though this does not preclude the possibility of the same person being appointed again.If the person appointed is a public official or a government employee, he/she is placed on leave during his/her term of office. The grounds of incompatibility or ineligibility found in electoral legislation also apply to the Secretary General.

Andorran local authorities have autonomous powers to recruit skilled staff based on their merit and abilities following an open recruitment procedure. Salary costs amount to about one third of municipal budgets. During the monitoring visit, the Congress delegation was told by representatives of the Comuns that they sometimes had difficulty in attracting and retaining highly qualified staff (lawyers, financial experts, architects, etc.), on account of the pay gap between the public and private sectors and the lack of rented accommodation on offer.

The delegation considers that the requirements of Article 6.2 of the Charter are met in Andorra.

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.

The meetings held by the Congress delegation with local elected representatives confirmed that they had not encountered any significant obstacles in carrying out their functions and that they considered the resources available to them to be satisfactory.

134. In order to ensure the “free exercise” of their functions, local elected representatives must also be protected by law against threats from social media and against violations of their privacy. Although such legal protection exists, there has not yet been an opportunity to apply it in practice. The monitoring delegation was told that elected representatives were under a great deal of pressure, especially on social media, and that this had sparked a debate about the professionalisation of politics in the country.

The free exercise of their functions also implies that local elected representatives have a recognised right to information and freedom of expression. In this respect, the Order of 29 December 2011 on the organisation and functioning of the Comuns (Articles 28 and 29) provides that councillors have the right to express their opinion on all matters on the agenda, without prejudice to the mayor's power to chair debates. They are entitled to receive adequate and comprehensive information on matters on the agenda of council meetings. Councillors may also request additional information and documentation on any matter of public interest.

Consequently, the rapporteurs consider that the situation in the country complies with Article 7.1 of the Charter.

Article 7.2

Conditions under which responsibilities at local level are exercised - Article 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.

Article 30 of the Order of 29 December 2011 on the organisation and functioning of the Comuns lays down the general rules for determining the remuneration of councillors and mayors. These officials are entitled to a monthly payment that is set by the municipal council when it approves the municipal budget. Remuneration is based on the workload of each councillor and the complexity of the tasks assigned. Chairs of committees also receive a special allowance. Due to the full-time nature of the post, mayors and deputy mayors are paid more than other councillors. In practice, the monthly payment varies from €4 000 to €6 000 depending on the Comú (for example, in Encamp mayors are paid €5 500 while councillors receive €1 500 per month). It is therefore up to each Comú to determine the financial remuneration of its elected representatives at the beginning of each term of office, and the amount set by the municipal budget appears to be appropriate. It was noted that in some Comuns, mayors also chair the boards of local companies (e.g. ski resorts) on an unpaid basis.

The rapporteurs therefore consider that the requirements of Article 7.2 of the Charter are met in Andorra.

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.

In Andorra, the rules on incompatibility and ineligibility are laid down in Articles 17, 18 and 19 of the Llei qualificada del règim electoral i del referèndum (Qualified Law on the electoral system and referendums). It provides that the following are disqualified from holding public office: judges of the Constitutional Court; members of the High Council of Justice; bailiffs, judges and members of the Public Prosecution Service; and members of the Electoral Council. These grounds for disqualification are also grounds for incompatibility. Persons who have been sentenced to imprisonment by a final judgment are also disqualified for the duration of their sentence. In addition, the exercise of public functions by civil servants in active service, as well as persons in a paid employment relationship with the Comú, is incompatible with the exercise of any elective office in the Comú for which they work. Finally, it is not possible to stand for election to both the General Council and the Municipal Council if the elections are held on the same day.

In the light of the current situation in Andorra, the rapporteurs consider that the requirements of Article 7.3 of the Charter are met.

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.

Article 82.2 of the Andorran Constitution provides that “[t]he acts of the Comuns shall be directly enforced through the means established by law. Against such acts administrative and jurisdictional appeals may be lodged with the purpose of controlling their conformity with the legal system”. A similar provision is included in Articles 5 and 6 of the Qualified Law on the powers of Comuns. Only the ordinary courts, the Constitutional Court and the Court of Auditors, which are independent bodies, have the power to review municipal decisions. In particular, the Constitutional Court rules on disputes “arising from the interpretation or exercise of jurisdiction between the general bodies of the State and the Comuns” (Article 82.1 of the Constitution).

The rapporteurs are therefore of the opinion that Andorra fully complies with Article 8.1 of the Charter.

As result of those provisions, the Government has no supervisory power on the activities of the Parishes. Only the courts, the Constitutional Tribunal and the Tribunal de comptes – which do not depend on the government – are entitled to control the activity of the municipalities.

In particular, the Constitutional Court decides the conflicts “arising from the interpretation or exercise of jurisdiction between the general organs of the State and the Local Councils” (Article 82.1).

The Tribunal de comptes (Court of Auditors) is responsible for the financial audit of each municipality as regards the regularity and compliance with the standards of the public administration and the law (legality control). It also prepares reports on the expenditures addressed to the parliament and to the municipalities, which have to implement the recommendations. If crimes are detected, they are notified to the prosecutor’s office.

Law no. 32/2014 of 27 November 2014 on fiscal sustainability sets out a ceiling for indebtedness and strengthens internal controls, widening the powers of the internal auditors. The Law will be applied to municipalities starting from 2019, when the term of the councils elected in 2015 will end.

The rapporteurs consider that the requirements of Article 8 of the Charter are fully respected in Andorra.

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.

In Andorra, there is no review of expediency or political supervision by the Government over the exercise of local powers, but only checks on legality. As was pointed out during the Congress delegation’s visit, the relationship between the Government and the Comuns is not hierarchical. The Government has no control over the activities of the parishes, and no comments were made to the Congress delegation in this regard.

In addition, the State has not delegated any powers to the Comuns, which means that there are no checks on expediency.

The rapporteurs therefore conclude that Andorra fully complies with Article 8.2 of the Charter.

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.

In their discussions with the Congress delegation, the representatives of the Comuns did not raise any objections to such supervision. In practice, the main audit of the activities of the Comuns is carried out by the Court of Auditors, which is organically attached to the Consell General and is an independent technical body that is responsible, in particular, for carrying out financial audits of each Comú to ensure that its activities are in order and that they comply with the rules of public administration and the law (compliance audit).

The audit of municipal budgetary acts provided for by the Law on municipal finances is mainly an internal audit carried out by a body called the Municipal Inspectorate, headed by a municipal inspector. It comprises several aspects:

- A compliance audit, which covers all the acts, documents and files of the Comú and of any public company in which it has an interest that may have an impact on municipal finances.

- An economic audit, the main objective of which is to determine, both qualitatively and quantitatively, the possible impact of certain expenditure on municipal finances and on the normal execution of the municipal budget.

- A financial audit, which consists of auditing the economic and financial operation of public companies in which the local authority has a shareholding, as well as private entities that receive subsidies, loans, guarantees and other assistance from the municipal budget.

- An efficiency review, which consists of periodically verifying the degree of compliance with the objectives of the programmes included in the budget for the previous financial year, analysing operating costs and performance, and assessing the usefulness of the municipal services, works and acquisitions.

Finally, the Comuns exercise political control over the implementation of the municipal budget and compliance with budgetary rules.

The rapporteurs consider that the requirements of Article 8.3 of the Charter are fully met in Andorra.

Article 9.2

Financial resources of local authorities - Non ratified

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

It is clear from the discussions between the Congress delegation and the municipal leaders that the recent reforms on powers and financial transfers have provided the Comuns with sufficient financial resources to exercise their powers in good conditions. However, the Comú of Canillo considers that the maintenance of the secondary roads for which it is responsible accounts for a large part of its expenditure, as it has the largest road network in the country. It therefore believes that it should have greater financial resources to cover these costs.

In general, the rapporteurs consider that there are no serious obstacles to the ratification of Article 9.2 of the Charter.

Article 9.8

Financial resources of local authorities - Non 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.

The local authorities are not large enough to have access to the international financial market.

The rapporteurs consider that the requirements of Article 9 of the Charter are currently met in Andorra. With regard to the unratified provisions of Article 9, they consider that, in the light of the reforms introduced since the last Congress report, there are no serious obstacles to the ratification of paragraphs 2 and 5. They therefore encourage the Andorran authorities to ratify these provisions.

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.

The Law of 20 October 2017 on transfers establishes the unconditional nature of the financial transfers received by the Comuns, resources which they are free to use without any restrictions other than those established by the laws in force, in particular Law 32/2014 of 27 November 2014 on the sustainability of public finances and budgetary and fiscal stability. Since the Comuns should be free to decide on the use of these funds, the 2017 Law removes the powers of control and suspension of transfers that the previous law attributed to the Government and the Consell General.

The rapporteurs consider that Andorra complies with Article 9.7 of the Charter.

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.

The Law of 20 October 2017 (amended in 2018), which reformed the entire system of financial transfers to the local authorities (adapting it to their powers and responsibilities), was the subject of lengthy tripartite negotiations between the Consell General, the Government and the Comuns. The criteria for allocating transfers adopted at the end of the negotiations were sufficiently precise and detailed to avoid annual renegotiations. Local authorities can also challenge the way in which the financial transfers are calculated, in the first instance before the Minister of Finance and, if necessary, before the courts. In discussions with the monitoring delegation, local authority representatives were generally positive about the quality of the consultations on financial matters.

The rapporteurs conclude that Andorra complies with Article 9.6 of the Charter.

Article 9.5

Financial resources of local authorities - Non 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.

The introduction of the principle of financial solidarity is one of the main features of Andorra’s 2017 reform of financial transfers from central government. Article 8 of the Law of 20 October 2017, as amended in 2018, specifies how financial transfers are to be apportioned to the Comuns pursuant to Article 81 of the Constitution:

“The total amount to be paid to the Comuns shall be divided up according to the following appropriations and categories:

a. 38% to be divided equally among the Comuns;

b. 21% to be divided among the Comuns in proportion to their population;

c. 16% to be divided among the Comuns in proportion to the parish surface area;

d. 12.75% to be divided among the Comuns in proportion to the total of their inhabitants who are children and elderly persons;

e. 5.5% to reflect tourist numbers, divided among the Comuns in proportion to the number of overnight stays in tourist accommodation;

f. 6.75% divided up to reflect solidarity concerns and features specific to certain Comuns”.

The methods used to calculate financial transfers are therefore tantamount to a form of equalisation, taking into account the specific situation of each Comú.

In his meeting with the Congress delegation, the mayor of Andorra la Vella expressed the wish that the costs borne by the capital in its role as the core Comú (e.g. music conservatory, swimming pool, athletics track, etc.) be taken into account in the calculation of transfers.

As a result, the rapporteurs note an overall balance in the country. Regarding the non-ratification of Article 9.5, they believe that there are no serious obstacles to the ratification of this provision since the reforms that have taken place since the Congress' previous report. Therefore, taking into consideration the specificities of the Andorran system, the rapporteurs encourage the national authorities to ratify this provision, which is de facto respected in the country's practice. In the meantime, the rapporteurs were informed, during the consultation procedure, that the Government would consider ratifying this provision in the near future.

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.

Article 6 of the Qualified Law on municipal finances recognises that the Comuns have full fiscal authority, which is reflected in the right to adopt municipal tax rules, which may vary from one parish to the next. Comuns introduce, regulate and apply taxes in accordance with the Constitution, the Law on the powers of Comuns, the Law establishing the bases of the tax system, the Law on municipal finances and other provisions with legal force.

Article 3 of the Law of 16 December 2021 on municipal finances states that municipal resources include taxes, municipal taxes, taxes shared with the State, income from property, loans, royalties and financial transfers from the Government. Under the Qualified Law on the powers of Comuns, municipal taxes include: a) the traditional foc i lloc [housing] tax on primary residences; b) property tax; c) tax on rental income; d) tax on the establishment of commercial, economic and professional activities; and e) construction tax.

The resources over which the Comuns have real power of decision and which they collect directly (i.e. local taxes and fees) represent a significant proportion of their total resources. In 2021, own resources amounted to €166 860 234 (56% of total resources), financial transfers (grants) to €51 879 658 (31% of total) and taxes shared with the Government to €13 456 465 (8% of total resources). However, the degree of financial autonomy varies, as the share of revenue generated by each Comú ranges from 39% (Canillo) to 75% (Andorra la Vella).

The rapporteurs consider that the requirements of Article 9.3 of the Charter are met in Andorra.

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.

The principles relating to the financial resources of the Andorran Comuns are laid down directly in the Constitution (Articles 80.2 and 81) and are implemented by law. The financial resources of the Comuns consist of their own taxes, taxes shared with the Government and transfers from the general budget. Since 2005, the Comuns have been free to decide on the use of the transferred funds, giving them greater spending autonomy. They also receive a share of the revenue from the tax on vehicle ownership collected by the State. Local authorities therefore levy their own taxes, in accordance with Article 80.2 of the Constitution, which stipulates that with due regard for State prerogatives, a qualified law establishes the powers which are granted to the Comuns for them to exercise their functions in the economic and fiscal sphere. These include the exploitation of natural resources and the related revenue, taxes and fees for municipal services, administrative licences, establishment of commercial, industrial and professional activities, and real estate. In addition to transfers from the State, the Comuns therefore have their own resources: Article 6 of the Law of 16 December 2021 onmunicipal finances recognises that the Comuns have full fiscal authority, allowing them to introduce their own taxes.

It should also be noted that the Comuns have a low level of indebtedness, with most of their budgets in surplus. The Law of 16 December 2021 on municipal finances stipulates that the total amount of long-term borrowing operations may not exceed twice the average total receipts recorded in the budgets for the three preceding calendar years, not including the total yield from borrowing operations and revenue from the sales of assets. However, the level of municipal debt, which was between 120 and 150% in 2014-2015, fell to between 50% and 70% in 2020, before rising slightly in 2021, while remaining under 100%, well below the legal limit.

During the monitoring visit and the various discussions with the local authorities, the latter considered their financial resources to be sufficient. They are also completely free to use them as they wish.

The rapporteurs therefore consider that the requirements of Article 9.1 of the Charter are met in Andorra.

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.

In addition to financial transfers from the State, the power of the Comuns to decide on fiscal matters allows them to introduce specific taxes when necessary: for example, a waste collection tax, a tax on cash dispensers and a street lighting tax in Andorra la Vella. Their resources therefore appear to be sufficiently diversified.

In recent years, some Comuns have seen a sharp increase in their resources, mainly due to the construction boom. This is particularly true of the parishes of Canillo and Encamp. It should be noted, however, that some local budgets are dependent on construction tax. While the property market has boomed in recent years, some local authorities told the Congress delegation of the difficulties that could arise in the near future from a slowdown or even decline in construction and property transactions.The reduction in the length of the ski season due to global warming is an important factor to consider, especially since ski resorts provide significant financial support to local authorities.

The rapporteurs therefore consider that Andorra complies with Article 9.4 of the Charter.

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.

Co-operation between parishes is a well-established practice in Andorra, which has recently been enshrined in a number of legislative acts. The Order of 29 December 2011 on the organisation and functioning of the Comuns establishes the right of local authorities to associate and, in its explanatory memorandum, expressly refers to the European Charter of Local Self-Government, which was “incorporated into the legal order of the Principality of Andorra and entered into force on 1 July 2011”.

The provisions of Chapter XII of the Order provide a legal framework for the meeting of parish mayors (Reunió de cònsols), which has been held at regular intervals (once a month or every two months) since time immemorial. The Reunió de cònsols is made up of the mayors and deputy mayors of each of the seven parishes of the Principality.

The 2011 Order provides that in exercising their powers, and in accordance with the legislation in force, local authorities are entitled to co-operate and form consortia with other authorities to carry out tasks of common interest. Examples of intermunicipal co-operation include forestry management, municipal traffic services, separate waste collection and a joint waste collection centre operated by the Comú of Encamp and the neighbouring Comú of Canillo.

Intermunicipal co-operation was also addressed by the Law of 20 December 2017. To ensure co?operation between theComuns and other local entities and to enable resources to be optimised, provision is made to pool services. Therefore, Comuns and other local bodies can create intermunicipal Communities (Mancomunitats) to provide and implement services and activities jointly. Communities have their own legal personality and when developing and executing their own functions, they have the same powers as Comuns and other local bodies (Article 5).

One of the main means of strengthening co-operation between central government, the Comuns and other public authorities, and between the Comuns themselves is co-operation agreements on the performance of tasks of common interest within their jurisdiction. The Law of December 2017 lays down rules on the scope, the procedure, the content, the effects and the monitoring of such agreements with a view to giving these instruments a sound basis.

The rapporteurs therefore conclude that Andorra fully complies with Article 10.1 of the Charter.

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.

The Order of 29 December 2011 on the organisation and functioning of the Comuns enshrines the right of local authorities “to join associations for the protection and promotion of their interests and to join international associations of local authorities” (Article 34). For example, the Comuns are members of the International Association of French-speaking Mayors (AIMF). There is also the Reunió de cònsols, which provides a forum for dialogue between the Andorran local authorities.

Therefore, Andorra fully complies with Article 10.2 of the Charter, the provisions of which are reproduced almost verbatim in Article 34 of the 2011 Order.

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.

Article 34 of the Order of 29 December 2011 on the organisation and functioning of the Comuns provides for the right of local authorities to co-operate with their counterparts in other states without having to seek any authorisation from the Government. The local authorities have signed many decentralised co-operation agreements, especially on cultural matters. The legal framework for cross-border intermunicipal co-operation in Andorra is provided by the agreement signed between the Government and the Comuns to set up the Andorran Organisation for Cross-Border Co-operation (AOCC). The aim of the AOCC is to establish a framework for cross-border co-operation involving Andorran national and local authorities, enabling them to sign agreements with regional authorities in France and in Spain and to become full members of the Working Community of the Pyrenees (CTP). The composition of the AOCC’s governing and administrative bodies is laid down in its statutes. Its President (Minister of Foreign Affairs) and Vice-President (Chair of the Reunió de cònsols, a position that rotates between the mayors of the different Comuns) attend the CTP’s plenary meeting every year. The local authorities have participated in several European cross-border co-operation projects as part of the Spain - France - Andorra cross-border co-operation programme (Interreg POCTEFA), and the Ministry of Foreign Affairs, which is responsible for cross-border co-operation, liaises with the local authorities to propose any such projects that may be of interest to them. For example, together with the government, the local authorities participate in the Working Community of the Pyrenees (CTP) with several French regions and Spanish autonomous communities. There are also cross-border co?operation projects involving one or more Comuns, for example the Pyrenees Three Nations Park, which includes the Alt Pirineu Nature Park (Spain), the Ariège Pyrenees Regional Nature Park (France), the Comapedrosa Nature Park (La Massana) and the Vall de Sorteny Nature Park (Ordino).

The rapporteurs therefore consider that the country complies with Article 10.3 of the Charter, the terms of which are set out in Article 34 of the 2011 Order.

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.

In Andorra, in addition to the ordinary legal remedies, the Comuns are entitled to lodge an individual complaint directly with the Constitutional Court. According to Article 82.1 of the Constitution, “conflicts arising from the interpretation or exercise of jurisdiction between the general bodies of the State and the Comuns shall be settled by the Constitutional Court”. In practice, only about 15 appeals were lodged with the Constitutional Court between 1997 and 2023. To date, the Comuns have never invoked the European Charter of Local Self-Government to assert their rights.

If the acts, resolutions or legislative provisions of the Consell General or the Government interfere with the powers conferred by the Constitution on the Comuns, or if the Comuns exercise powers conferred on the Consell General, the Government or another Comú, the aggrieved party may bring a case of conflict of jurisdiction before the Constitutional Court (Article 69 of the Qualified Law on the Constitutional Court). Positive conflicts of jurisdiction between local authorities and the general organs of the state relate to the qualified laws governing the powers and financial responsibilities of the parishes, which must be considered in conjunction with the Constitution in order to determine where the disputed responsibility lies. A negative conflict of jurisdiction exists when the non-fulfilment of a duty by a general state body or a Comú prevents, hinders or prejudices another body in the fulfilment of its own duty, or violates the subjective rights of an individual.

According to its case law, the Constitutional Court may, in the context of a conflict of jurisdiction, only rule on the question of the delimitation of powers and not on the constitutionality - on grounds other than lack of jurisdiction - of the legislation in question (Judgment of 13 March 1998, case 1997-1-CC). The Constitutional Court has also ruled that the matters assigned to the Comuns by Article 80 of the Constitution (population census; drawing up electoral rolls; participation in the organisation and conduct of elections according to the procedures prescribed by law; popular consultation processes; commerce, industry and professional activities; setting parish boundaries; private property and public property of the Comuns; natural resources; land registers; town planning, public roads, culture, sports and social activities and municipal public services) constitute a list of minimum powers (Judgment of 12 May 1997, case 97-2-L), which cannot therefore be interpreted restrictively, but must be interpreted in the light both of their material context and of the general principle of co-ordination (Judgment of 9 May 2003, case 2003-1-CC).

Since the entry into force of the Charter (on 1 July 2011), the Constitutional Court of Andorra has received only one appeal concerning a conflict of jurisdiction. Case 2018-1-CC, brought by the Comú of Andorra la Vella, concerned the territorial boundaries established by the development plan of the Comú of Sant Julià de Lòria and was declared inadmissible on the grounds that it was a territorial dispute between two local authorities which should be decided by the civil courts. The Court therefore held, in accordance with Article 73 b) of the Qualified Law on the Constitutional Court, that the dispute “must be dealt with by other procedural means”, in this case by ordinary civil proceedings.

Laws and decrees may also be challenged as unconstitutional by three Comuns acting jointly within 30 days of their publication in the Official Gazette. The Constitutional Court must then rule within two months (Articles 83 and 99 of the Constitution). In all, eight complaints of unconstitutionality have been lodged by Comuns.

Lastly, under Article 102 of the Constitution, any Comú may, on an individual basis, lodge a complaint to protect its constitutional rights, known as a recurs d’empara (in particular, to “protect” its jurisdiction). Local authorities often file such constitutional complaints when they believe that the procedural guarantees to which they are entitled in proceedings against individuals and other Comuns have not been respected by the ordinary courts. The majority of empara cases therefore concern court decisions rather than government decisions. Since 2006, 17 constitutional complaints have been lodged, of which eight were inadmissible. Of the nine admissible appeals, six were upheld and three were dismissed.

In its Judgment of 25 May 2007 in case 2006-22 i 25-RE, the Constitutional Court ruled that “the Comú d’Escaldes-Engordany [was] fully entitled to bring an empara action in order to ensure the protection of the rights enshrined in Article 10 of the Constitution”, since “not only natural persons, but also legal persons are entitled to fundamental rights, including the right to effective judicial protection under Article 10 of the Constitution”. If a distinction is to be made between this right and its procedural safeguards, it follows that where, as in the case of Andorra, an empara remedy exists, those exercising these rights are entitled to seek their protection before the Constitutional Court by means of this remedy, which derives literally from Article 102 of the Constitution. Developments in comparative law, such as German law, could justify this argument. Consequently, by virtue of the legal personality of the Comuns, and of Article 2.2 of the Qualified Law on the powers of Comuns of 4 November 1993, their right to effective judicial protection must be affirmed and, therefore, their entitlement to bring an empara action before the Constitutional Court”. [...] “Comparative doctrine and case law have identified ‘specificities’ with regard to the effective judicial protection of public legal persons, and, in particular, of persons vested with powers. However, in the instant case, since the Comú has defended its rights before the various courts in the course of ordinary legal proceedings on an equal footing with the complainant, nothing can deprive it of the right to obtain a decision on its claim based on the law”.

Furthermore, Article 23 of the Law of 20 October 2017 on transfers to the Comuns provides for a specific remedy to contest the Government’s decision on the amount of the transfers allocated each year to the various Comuns. Comuns may file a complaint with the Government within one month of being notified of the payment by the Ministry of Finance. Once the complaint has been lodged, the Government forwards it to the other Comuns, who are also parties to the proceedings and have one month in which to submit their observations. The Government must respond to the complaint within two months of receiving the Comuns’ observations. The complaint is deemed to have been rejected if the Government has not issued an explicit response within three months of receiving it. One or more Comuns contesting the amount to be paid by the Ministry of Finance does not suspend the transfer or alter the amount of that payment, either for the Comú which filed the complaint or for any other Comú, unless the Government has issued an explicit response, which may also be appealed through the same procedure. The Comú that has contested the transfer then has one month to lodge an appeal on the Government’s decision to the courts, in accordance with the procedure laid down in administrative and tax jurisdiction law. The Finance Minister told the rapporteurs that several appeals had been lodged by Comuns on the basis of this legal provision. The most recent disagreement between the Government and the Comuns concerns issues related to financial transfers, in application of the Qualified Laws on powers (2017) and on financial transfers (2018). The Comuns brought an action on 24 February 2022 (through the ordinary administrative courts) to resolve a disagreement on the criteria for the disbursement of transfers for the 2017 financial year. This is primarily a matter of legal interpretation but has potential economic consequences for the local authorities concerned.

The rapporteurs therefore consider that Andorra fully complies with the requirements of Article 11 of the Charter.

ACCESSION

to the Council of Europe 10 November 1994

RATIFICATION

of the European Charter of Local Self-Government 23 March 2011

CONSTITUTION | NATIONAL LEGISLATION

Consistently with a long tradition of local self-government deeply rooted in the history of Andorra (actually the Parishes are at the origin of the Principality), the principle of local self-government is recognized in the 1993 Constitution and the Qualified Laws, especially in the Llei qualificada de delimitació de competències dels Comuns.

27Ratified provision(s)

0Provision(s) with reservation(s)

3 Non ratified articles

27Compliant Provision(s)

0Partially Compliant Provision(s)

0Non-compliant Article