Andorra

Andorra - Monitoring report

Date of the monitoring visit: from 25 to 26 April 2017
Report adopted on: 28 March 2018

This report is prepared following the first monitoring visit to Andorra since it ratified the European Charter of Local Self-Government in 2011. It highlights a globally satisfactory level of local democracy in Andorra and its general compliance with the commitments under the Charter.

 

The Congress expresses satisfaction with a culture of consultation and close dialogue between the central and local authorities in Andorra facilitated by their proximity and long-standing traditions and the representation of municipalities in the composition of the Parliament.

 

Nevertheless, it points out the absence of a special status of the city of Andorra la Vella that would take account of the particular situation of the capital compared to other municipalities in accordance with Congress Recommendation 219 (2007) on the status of capital cities. The Congress also suggests formalizing in law the mechanism of consultation of local authorities. 

 

At the moment of the Congress monitoring visit to Andorra, the government, the parliament and local authorities were negotiating an important reform of the competences and the financial resources of local authorities. Consequently, the Congress encourages the Andorran authorities to pursue the reform efforts on the basis of the relevant principles of the Charter.

 

Finally, it recommends that the Andorran authorities consider the possibility of signing and ratifying the Additional Protocol to the Charter on the right to participate in the affairs of a local authority.

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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.


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.

 

Article 79.1 of the Constitution provides that “The Local Councils, as organs of representation and administration of the Parishes, are public corporations with legal status and with local regulatory powers subject to law by means of ordinances, regulations and decrees. Within the area of their jurisdiction subject to the Constitution, the law and tradition, the Local Councils function under the principle of self-government, recognised and guaranteed by the Constitution”.

 

As for the legal status of the European Charter of local self-government, Andorra ratified the Charter on 23r March 2011. According to Article 3, paragraph 4, of the Constitution, “Treaties and international agreements take effect in the legal system from the moment of their publication in the Official Gazette of the Principality of Andorra and cannot be amended or repealed by law”. The conventions, therefore, takes precedence over domestic law and are enforceable in Andorran courts.

 

No data has been found on the impact of the Charter on the legal system of Andorra. According to the President of the Constitutional Court who met with the rapporteurs, the Charter has not been mentioned by the Court in its rare decisions on local self-government. The Charter is not mentioned either in the Qualified Laws on local self-government which have been drafted in 1993, well before the ratification of the Charter.

 

Express reference is made to the Charter in the explanatory memorandum to the Order on organisation and functioning adopted by the Comuns on 24 November 2011, in that it establishes the Comuns right to associate (in accordance with Article 10 of the Charter – see below, paragraph 149).

 

The rapporteurs consider that the requirements of Article 2 of the Charter are fully respected in Andorra.

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 main question that must be addressed under this heading is whether, in the present situation, Andorran municipalities do regulate and manage a “substantial share of public affairs under their own responsibility and in the interests of the local population”. This provision of the Charter requires an assessment which takes into account a rather “subjective” and relative nature of the concept of “a substantial share of public affairs”, since no official or universal method of measuring such substantial character has yet been developed. The question therefore must be addressed considering the historical evolution, the culture and the constitutional traditions of the country under analysis.

 

In order to assess compliance with this provision, both legislative and factual aspects should be taken into consideration.

 

Local government in Andorra has fewer functions, compared to other countries. According to the information provided to the rapporteurs, municipalities are responsible for approximately 22% of the public sector. Education and health are State competences. The most important local competences are population census, local planning, municipal roads and public domain. Municipalities also contribute to touristic infrastructures. Social affairs are a State competence, but municipalities are developing preschool services and services for elderly people and extra-curricular activities.

 

Taking into account the specificity of Andorra, as a State with a small surface area, and considering that none of the interlocutors complained about the scope of local competences, rapporteurs consider that the Constitution and the laws entrust municipalities with a series of competences and powers that can be assessed as “fair” or “reasonable” in the sense 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.


As for article 3, paragraph 2, the right to self-government is exercised in Andorra by elected bodies, the Comuns. All the members are elected, for four years, in single multi-member districts, consisting of the whole Parish, using closed lists. Half of the seats are allocated to the party that received most of votes.The other half of the seats is allocated proportionally to the votes obtained by the different parties, including the list that has won. With this system, the winning party obtains an absolute majority. A Cònsol major (mayor) and a Cònsol menor (deputy mayor) are elected among the councillors for four years: they are usually members of the winning party. They must resign if they are affected by a motion of censure, which includes a candidate mayor, approved by the absolute majority of the Council.

 

It should be mentioned that during the meetings the rapporteurs heard complaints of the limited role of the opposition and minorities in the local councils in practice due to the specificity of electoral system according to which 30 - 40% of votes is sufficient to obtain the absolute majority of seats. The second most voted list, with 25-30% of votes, could elect only one or two representatives. The delegation was informed that the limited number of councillors makes the work of the opposition difficult since it does not have any budget and is unable to participate in all the committees. In addition, some meetings can be scheduled on a very short notice, as part of a procedure authorised by the Order on organisation and functioning adopted by the Comuns in 2011. Rapporteurs were told that a law, establishing some basic principles on the functioning of the Comuns, would be necessary.

 

During the consultation process the government informed the rapporteurs, with regard to the lack of representation of minority parties in the Comuns, that the representation of these parties is established directly by the Qualified Law on the electoral system and referendums. Any amendment to this law must be approved by a dual majority of both the councillors elected to parishes and the councillors elected at national level. The government also stated that the municipal election system established by the Qualified Law on the electoral system and referendums of 1993 has brought stability to the Comuns ever since and has made it possible for power to change hands regularly between the political parties.

 

The rapporteurs consider that the system currently in force in Andorra meets the requirements of Article 3.2, whose purpose it is to guarantee the exercise of local self-government by democratically elected bodies.

 

However, the rapporteurs consider it necessary for the remarks they heard during their visit to be taken into consideration so as to improve the effectiveness and smooth running of councils.

 

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 4, paragraph 1 of the Charter requires that the basic powers and responsibilities of local authorities are prescribed by the constitution or by statute. Article 80 of the Constitution of Andorra lists the matters in which, at least, the Qualified Law should recognize powers and responsibilities to the municipalities. By way of implementation of this constitutional provision, Article 4 of the Qualified Law on local competences adopted on 4 November 1994 determines the competences of the Comuns.

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.


As for Article 4, paragraph 2 of the Charter, according to which “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”, the Qualified law on local competences states that the competences neither assigned nor delegated to the municipalities belong to the State (Art. 3.3). Nevertheless, in practice Comuns seem to be free to address other needs of their population. Rapporteurs were told that municipalities assumed new competences outside the listed matters, for example for elderly people or preschools. No complaints have been raised by local authorities on their scope of competences during the meetings.

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.


Article 4, paragraph 3 of the Charter articulates the general principle of subsidiarity. It establishes that “Public responsibilities shall generally be exercised, in preference, by those authorities that 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”. In the opinion of the rapporteurs, the size of the country has to be taken into account when assessing the application of this provision, during the visit no issues were raised with regard to the principle subsidiarity.

 

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.


Article 4, paragraph 4 raises the problem of overlapping responsibilities. In the interest of clarity, it provides that “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”. This principle seems fully respected in Andorra: in the exercise of their competences, the Comuns enjoy full normative, executive and enforcing power, as well as financial and tax authority.

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.

 


Article 4, paragraph 5 deals with delegated powers, asking for local authorities to be allowed discretion in the exercise of those powers. This provision does not raise any special issues in Andorra either.

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.

 


Finally, Article 4 paragraph 6 of the Charter provides that “local authorities shall be consulted, insofar as possible, in due time and in an appropriate way in the planning and decisionmaking processes for all matters which concern them directly”. During the meetings all the interlocutors evaluated the relationship between the State and the municipalities as very smooth and fair. Although a formal mechanism of consultation does not exist, the municipalities are always consulted by the government and all important decisions (including the ongoing reform of the competences and the financial transfers) have been duly negotiated with the municipalities. The size of the country also has to be taken into account since the proximity of the central authorities certainly facilitates informal ways of consultations. The delegation observed that the prime minister is very accessible to local representatives although no specific Ministry has the competence for local government. In addition, most of the national politicians have a record as mayors or local councillors and are very much familiar with local issues and needs.

 

Therefore, the rapporteurs consider that in practice local authorities of Andorra are consulted in due time and in an appropriate way on all matters that concern them directly. At the same time they would suggest entrenching the consultation requirements in the law in order to give a stronger guarantee to local authorities and secure the maintenance of consultations on the same systematic level in future.

 

In conclusion, rapporteurs believe that, taking into account the specificities of Andorra, Article 4 of the Charter can be considered as generally respected.

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.

 


This article requires that the local communities are consulted in case of changes in local authorities’ boundaries.

 

In Andorra, 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.

 

In the case involving the Parish of Escaldes-Engordany, this Parish was established by division from the Parish of Andorra la Vella by a decree of the Co-princes on 14 June 1978, after the local population had been asking for 30 years the institution of a Comù.

 

Finally, the fact that the Parishes are provided for directly by the Constitution implies that their amalgamation requires a constitutional amendment, according to the procedure set out in Article 106, which introduces the requirement of a national referendum: “The revision of the Constitution shall require the approval of the General Council by a majority of two-thirds of the members of the Chamber. Immediately after its approval the proposal shall be submitted to ratification in a referendum”.

 

Taking into account the specificity of Andorra, the rapporteurs consider that Article 5 is respected.

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.


Article 6, paragraph 1 of the Charter provides that local authorities must be able to determine their own internal administrative structure.

 

The Qualified Law on the competences of local authorities assigns Comuns the power to establish their own internal organisation and functioning, in accordance with the Constitution, general laws and customs and traditions (Art. 4.13). In 1995 the Comuns had already adopted common rules on their functioning (Reglament de funcionament dels Comuns). In 2011 they brought them up to date by means of an order on organisation and functioning which applies to all the Comuns.

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.


As regards article 6, paragraph 2 of the Charter, Andorran municipalities have the power and the autonomy to recruit highquality staff on the basis of an open competition. However, rapporteurs were told by the local authorities of Andorra la Vella that the municipality is overstaffed (with 478 employees) and that 45% of the municipal budget is spent on staff. The mayor would like to reduce this expenditure, but she is unable to do it, as the staff has the status of civil servants. Therefore, employees cannot been dismissed, and the only remaining possibility is to not replace them after retirement.

 

The rapporteurs consider that the requirements of Article 6 of the Charter are respected 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.


Article 7, paragraph 1, aims at ensuring the free exercise of functions by local elected representatives. To this purpose, Article 7, paragraph 2, refers to an appropriate financial compensation.

 

No particular issues were raised in this respect during the visit. Under the Order on the organisation and functioning of the Comuns, the mayor and deputy mayor, as well as other members of the Junta de Govern are entitled to a monthly financial compensation. The other councillors enjoy a financial compensation for their effective participation in the meetings of the council and its committees. The minimum is fixed by the Reunió de cònsols de les valls. Rapporteurs have been told that each municipality establishes the financial compensation to elected representatives at the beginning of each term after elections and that the amount is appropriate.

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.


Consult reply indicated at article 7.1

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.


As for Article 7, paragraph 3, according to which “Any functions and activities which are deemed incompatible with the holding of local elective office shall be determined by statute or fundamental legal principles”, the incompatibilities are determined by Articles 16, 17, 63 and 74 of the Llei qualificada del règim electoral i del referèndum (Qualified Law on electoral system and referendum),.

 

The rapporteurs conclude that the requirements of Article 7 of the Charter are fully respected in Andorra.

 

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 8 of the Charter concerns the supervision of local authorities. In Andorra, Article 82.2 of the Constitution provides that “The acts of the Local Councils 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 competences.

 

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.


Consult reply indicated at article 8.1

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.


Consult reply indicated at article 8.1

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.


Article 9 of the Charter is aimed at ensuring that local authorities are entitled to sufficient financial resources. The legal authority to perform certain functions is meaningless if local authorities are deprived of the financial resources to carry them out. Andorra has not ratified Article 9, paragraph 2; Article 9, paragraph 5 and Article 9, paragraph 8 of the Charter.

 

In Andorra, the financial resources of the municipalities are based on their own taxes, taxes shared with the government, and on transfer of funds from the General Budget. The principles on financial resources are established directly by the Constitution (Articles 80.2 and 81) and developed throughout several Qualified Laws and ordinary laws.

 

At the moment of the visit of the Congress delegation, a tripartite negotiation process on a reform, lasting three years and involving the parliament, the government and the municipalities, was about to be finalised. The purpose of the reform is to update the entire system of transfers, through adapting it to the competences of municipalities and the new framework of State taxation, in place since the introduction of a full system of direct taxes, such as the income tax and the tax on corporation. In addition, the criteria of distribution between municipalities are planned to be revised, taking into account new parameters and based on the principle of solidarity introduced in favour of the municipalities that have fewer revenues from local taxes. The less economically advantaged Parishes would be compensated, as they are less able to generate their own resources. To this purpose, some asymmetries, that have an impact on the budget, have been identified, linking the expenditures for competences to the transfer of funds from the State.

 

Article 9.1 seeks to ensure that local authorities are not deprived of the power to determine expenditure priorities. From 1993 to 2015 some limitations did exist on the use of financial transfers: only 20% was for general expenditures, while 80% had to be used for investments or debt relief. In 2015, this limitation was removed and as a result the autonomy of expenditure of the municipalities increased.

 

The rapporteurs consider that the requirements of Article 9 of the Charter are respected in Andorra. As for the non-ratified provisions, they consider that very little is required to enable ratification of paragraphs 2 and 5 of Article 9. Consequently, the rapporteurs encourage Andorran authorities, once the reform in process is finally approved, to ratify these provisions.

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.


Article 9 of the Charter is aimed at ensuring that local authorities are entitled to sufficient financial resources. The legal authority to perform certain functions is meaningless if local authorities are deprived of the financial resources to carry them out. Andorra has not ratified Article 9, paragraph 2; Article 9, paragraph 5 and Article 9, paragraph 8 of the Charter.

 

In Andorra, the financial resources of the municipalities are based on their own taxes, taxes shared with the government, and on transfer of funds from the General Budget. The principles on financial resources are established directly by the Constitution (Articles 80.2 and 81) and developed throughout several Qualified Laws and ordinary laws.

 

At the moment of the visit of the Congress delegation, a tripartite negotiation process on a reform, lasting three years and involving the parliament, the government and the municipalities, was about to be finalised. The purpose of the reform is to update the entire system of transfers, through adapting it to the competences of municipalities and the new framework of State taxation, in place since the introduction of a full system of direct taxes, such as the income tax and the tax on corporation. In addition, the criteria of distribution between municipalities are planned to be revised, taking into account new parameters and based on the principle of solidarity introduced in favour of the municipalities that have fewer revenues from local taxes. The less economically advantaged Parishes would be compensated, as they are less able to generate their own resources. To this purpose, some asymmetries, that have an impact on the budget, have been identified, linking the expenditures for competences to the transfer of funds from the State.

 

As for the non-ratified provisions of the Charter, the rapporteurs are convinced that the on-going reform on transfers and competences, properly consulted with local authorities, will be implemented with due respect for the relevant principles of the Charter and that no obstacles will exist to the ratification of paragraphs 2 and 5 of Article 9 after the enactment of the reform.

 

Article 9.2 establishes the principle of an adequate relationship between financial resources and competences: although no elements have been provided till now to show that the actual level of financial resources is not commensurate with the responsibilities of Andorran municipalities, the reform under discussion is aimed at addressing this issue, removing any residual doubts on the compliance with Article 9.2.

 

The rapporteurs consider that the requirements of Article 9 of the Charter are respected in Andorra. As for the non-ratified provisions, they consider that very little is required to enable ratification of paragraphs 2 and 5 of Article 9. Consequently, the rapporteurs encourage Andorran authorities, once the reform in process is finally approved, to ratify these provisions.

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 9 of the Charter is aimed at ensuring that local authorities are entitled to sufficient financial resources. The legal authority to perform certain functions is meaningless if local authorities are deprived of the financial resources to carry them out. Andorra has not ratified Article 9, paragraph 2; Article 9, paragraph 5 and Article 9, paragraph 8 of the Charter.

 

In Andorra, the financial resources of the municipalities are based on their own taxes, taxes shared with the government, and on transfer of funds from the General Budget. The principles on financial resources are established directly by the Constitution (Articles 80.2 and 81) and developed throughout several Qualified Laws and ordinary laws.

 

At the moment of the visit of the Congress delegation, a tripartite negotiation process on a reform, lasting three years and involving the parliament, the government and the municipalities, was about to be finalised. The purpose of the reform is to update the entire system of transfers, through adapting it to the competences of municipalities and the new framework of State taxation, in place since the introduction of a full system of direct taxes, such as the income tax and the tax on corporation. In addition, the criteria of distribution between municipalities are planned to be revised, taking into account new parameters and based on the principle of solidarity introduced in favour of the municipalities that have fewer revenues from local taxes. The less economically advantaged Parishes would be compensated, as they are less able to generate their own resources. To this purpose, some asymmetries, that have an impact on the budget, have been identified, linking the expenditures for competences to the transfer of funds from the State.

 

Article 9.3 establishes the principle that part of the resources of local authorities shall derive from local taxes, whereas Article 9.4 establishes the principle of the diversification of the resources. The rapporteurs consider that both principles are respected in Andorra, as a relevant part of the financial resources of municipalities derives from their own taxes. The fact that local authorities can determine the rate of those taxes allows the income to keep pace with the evolution of the costs.

 

The rapporteurs consider that the requirements of Article 9 of the Charter are respected in Andorra. As for the non-ratified provisions, they consider that very little is required to enable ratification of paragraphs 2 and 5 of Article 9. Consequently, the rapporteurs encourage Andorran authorities, once the reform in process is finally approved, to ratify these provisions.

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.


Article 9 of the Charter is aimed at ensuring that local authorities are entitled to sufficient financial resources. The legal authority to perform certain functions is meaningless if local authorities are deprived of the financial resources to carry them out. Andorra has not ratified Article 9, paragraph 2; Article 9, paragraph 5 and Article 9, paragraph 8 of the Charter.

 

In Andorra, the financial resources of the municipalities are based on their own taxes, taxes shared with the government, and on transfer of funds from the General Budget. The principles on financial resources are established directly by the Constitution (Articles 80.2 and 81) and developed throughout several Qualified Laws and ordinary laws.

 

At the moment of the visit of the Congress delegation, a tripartite negotiation process on a reform, lasting three years and involving the parliament, the government and the municipalities, was about to be finalised. The purpose of the reform is to update the entire system of transfers, through adapting it to the competences of municipalities and the new framework of State taxation, in place since the introduction of a full system of direct taxes, such as the income tax and the tax on corporation. In addition, the criteria of distribution between municipalities are planned to be revised, taking into account new parameters and based on the principle of solidarity introduced in favour of the municipalities that have fewer revenues from local taxes. The less economically advantaged Parishes would be compensated, as they are less able to generate their own resources. To this purpose, some asymmetries, that have an impact on the budget, have been identified, linking the expenditures for competences to the transfer of funds from the State.

 

Article 9.3 establishes the principle that part of the resources of local authorities shall derive from local taxes, whereas Article 9.4 establishes the principle of the diversification of the resources. The rapporteurs consider that both principles are respected in Andorra, as a relevant part of the financial resources of municipalities derives from their own taxes. The fact that local authorities can determine the rate of those taxes allows the income to keep pace with the evolution of the costs.

 

The rapporteurs consider that the requirements of Article 9 of the Charter are respected in Andorra. As for the non-ratified provisions, they consider that very little is required to enable ratification of paragraphs 2 and 5 of Article 9. Consequently, the rapporteurs encourage Andorran authorities, once the reform in process is finally approved, to ratify these provisions.

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.


Article 9 of the Charter is aimed at ensuring that local authorities are entitled to sufficient financial resources. The legal authority to perform certain functions is meaningless if local authorities are deprived of the financial resources to carry them out. Andorra has not ratified Article 9, paragraph 2; Article 9, paragraph 5 and Article 9, paragraph 8 of the Charter.

 

In Andorra, the financial resources of the municipalities are based on their own taxes, taxes shared with the government, and on transfer of funds from the General Budget. The principles on financial resources are established directly by the Constitution (Articles 80.2 and 81) and developed throughout several Qualified Laws and ordinary laws.

 

At the moment of the visit of the Congress delegation, a tripartite negotiation process on a reform, lasting three years and involving the parliament, the government and the municipalities, was about to be finalised. The purpose of the reform is to update the entire system of transfers, through adapting it to the competences of municipalities and the new framework of State taxation, in place since the introduction of a full system of direct taxes, such as the income tax and the tax on corporation. In addition, the criteria of distribution between municipalities are planned to be revised, taking into account new parameters and based on the principle of solidarity introduced in favour of the municipalities that have fewer revenues from local taxes. The less economically advantaged Parishes would be compensated, as they are less able to generate their own resources. To this purpose, some asymmetries, that have an impact on the budget, have been identified, linking the expenditures for competences to the transfer of funds from the State.

 

As for the non-ratified provisions of the Charter, the rapporteurs are convinced that the on-going reform on transfers and competences, properly consulted with local authorities, will be implemented with due respect for the relevant principles of the Charter and that no obstacles will exist to the ratification of paragraphs 2 and 5 of Article 9 after the enactment of the reform.

 

Article 9.5 sets the principles of solidarity, referring to financial equalisation procedures to protect the financially weaker local authorities. Rapporteurs were told by all the interlocutors, both at national and municipal level, that the introduction of the financial solidarity principle is one of the main points of the reform under discussion. Once the reform is approved, no obstacle will remain to the ratification of this paragraph of the Charter.

 

The rapporteurs consider that the requirements of Article 9 of the Charter are respected in Andorra. As for the non-ratified provisions, they consider that very little is required to enable ratification of paragraphs 2 and 5 of Article 9. Consequently, the rapporteurs encourage Andorran authorities, once the reform in process is finally approved, to ratify these provisions.

 

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.


Article 9 of the Charter is aimed at ensuring that local authorities are entitled to sufficient financial resources. The legal authority to perform certain functions is meaningless if local authorities are deprived of the financial resources to carry them out. Andorra has not ratified Article 9, paragraph 2; Article 9, paragraph 5 and Article 9, paragraph 8 of the Charter.

 

In Andorra, the financial resources of the municipalities are based on their own taxes, taxes shared with the government, and on transfer of funds from the General Budget. The principles on financial resources are established directly by the Constitution (Articles 80.2 and 81) and developed throughout several Qualified Laws and ordinary laws.

 

At the moment of the visit of the Congress delegation, a tripartite negotiation process on a reform, lasting three years and involving the parliament, the government and the municipalities, was about to be finalised. The purpose of the reform is to update the entire system of transfers, through adapting it to the competences of municipalities and the new framework of State taxation, in place since the introduction of a full system of direct taxes, such as the income tax and the tax on corporation. In addition, the criteria of distribution between municipalities are planned to be revised, taking into account new parameters and based on the principle of solidarity introduced in favour of the municipalities that have fewer revenues from local taxes. The less economically advantaged Parishes would be compensated, as they are less able to generate their own resources. To this purpose, some asymmetries, that have an impact on the budget, have been identified, linking the expenditures for competences to the transfer of funds from the State.

 

Article 9.6 provides that local authorities shall be consulted during the preparation of the legislation on the redistribution of resources. The rapporteurs believe that this provision is fully respected in Andorra, taking into account the reduced dimension of the country, the smooth relationship at institutional and personal level between the national government and the municipalities and the representation of the Parishes in the parliament. The currently discussed reform of the transfer and competences which is the result of a long process of tripartite negotiations provides for an additional evidence of consultations.

 

The rapporteurs consider that the requirements of Article 9 of the Charter are respected in Andorra. As for the non-ratified provisions, they consider that very little is required to enable ratification of paragraphs 2 and 5 of Article 9. Consequently, the rapporteurs encourage Andorran authorities, once the reform in process is finally approved, 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.


Article 9 of the Charter is aimed at ensuring that local authorities are entitled to sufficient financial resources. The legal authority to perform certain functions is meaningless if local authorities are deprived of the financial resources to carry them out. Andorra has not ratified Article 9, paragraph 2; Article 9, paragraph 5 and Article 9, paragraph 8 of the Charter.

 

In Andorra, the financial resources of the municipalities are based on their own taxes, taxes shared with the government, and on transfer of funds from the General Budget. The principles on financial resources are established directly by the Constitution (Articles 80.2 and 81) and developed throughout several Qualified Laws and ordinary laws.

 

At the moment of the visit of the Congress delegation, a tripartite negotiation process on a reform, lasting three years and involving the parliament, the government and the municipalities, was about to be finalised. The purpose of the reform is to update the entire system of transfers, through adapting it to the competences of municipalities and the new framework of State taxation, in place since the introduction of a full system of direct taxes, such as the income tax and the tax on corporation. In addition, the criteria of distribution between municipalities are planned to be revised, taking into account new parameters and based on the principle of solidarity introduced in favour of the municipalities that have fewer revenues from local taxes. The less economically advantaged Parishes would be compensated, as they are less able to generate their own resources. To this purpose, some asymmetries, that have an impact on the budget, have been identified, linking the expenditures for competences to the transfer of funds from the State.

 

As for Article 9.7, according to which block grants are preferable to earmarked grants, in Andorra the transfers are based on objective criteria and they are not bound to any specific destination.

 

The rapporteurs consider that the requirements of Article 9 of the Charter are respected in Andorra. As for the non-ratified provisions, they consider that very little is required to enable ratification of paragraphs 2 and 5 of Article 9. Consequently, the rapporteurs encourage Andorran authorities, once the reform in process is finally approved, to ratify these provisions.

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.


Article 9 of the Charter is aimed at ensuring that local authorities are entitled to sufficient financial resources. The legal authority to perform certain functions is meaningless if local authorities are deprived of the financial resources to carry them out. Andorra has not ratified Article 9, paragraph 2; Article 9, paragraph 5 and Article 9, paragraph 8 of the Charter.

 

In Andorra, the financial resources of the municipalities are based on their own taxes, taxes shared with the government, and on transfer of funds from the General Budget. The principles on financial resources are established directly by the Constitution (Articles 80.2 and 81) and developed throughout several Qualified Laws and ordinary laws.

 

At the moment of the visit of the Congress delegation, a tripartite negotiation process on a reform, lasting three years and involving the parliament, the government and the municipalities, was about to be finalised. The purpose of the reform is to update the entire system of transfers, through adapting it to the competences of municipalities and the new framework of State taxation, in place since the introduction of a full system of direct taxes, such as the income tax and the tax on corporation. In addition, the criteria of distribution between municipalities are planned to be revised, taking into account new parameters and based on the principle of solidarity introduced in favour of the municipalities that have fewer revenues from local taxes. The less economically advantaged Parishes would be compensated, as they are less able to generate their own resources. To this purpose, some asymmetries, that have an impact on the budget, have been identified, linking the expenditures for competences to the transfer of funds from the State.

 

As for the non-ratified provisions of the Charter, the rapporteurs are convinced that the on-going reform on transfers and competences, properly consulted with local authorities, will be implemented with due respect for the relevant principles of the Charter and that no obstacles will exist to the ratification of paragraphs 2 and 5 of Article 9 after the enactment of the reform.

 

The possibility for Andorra to ratify Article 9.8 is more complicated, as there is no national capital market in Andorra and local authorities are too small to have access to the international financial market.

 

The rapporteurs consider that the requirements of Article 9 of the Charter are respected in Andorra. As for the non-ratified provisions, they consider that very little is required to enable ratification of paragraphs 2 and 5 of Article 9. Consequently, the rapporteurs encourage Andorran authorities, once the reform in process is finally approved, to ratify these provisions.

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.


Article 10 of the Charter covers the co-operation between local authorities and their right to associate, at national and international level.

 

In this regard, the specificity of Andorra has to be considered: there are only seven municipalities and the Principality itself is a product of co-operation among the Parishes. Both elements could contribute to explain why this issue has not been addressed by a written regulation.

 

The Comuns’ right to associate is expressly granted in Chapter XII of the Order of 24 November 2011 on the organisation and functioning of the Comuns. The rapporteurs were told by local authority representatives that an association of municipalities was set up in 2002 although co-operation between parishes was already well established. On the first Tuesday of every month, mayors meet to promote co-operation. This meeting – the Reunió de cònsols – is expressly referred to in Articles 35 and 36 of the aforementioned order.

 

Under Article 34 of the order, municipalities are free to cooperate with their counterparts in other States without any authorisation from the government. The delegation was informed that they have signed many decentralised co-operation agreements, especially on cultural matters.


 

During the consultation process the rapporteurs were informed that a draft Law on co-operation between central government and the Comuns and among the Comuns had been tabled in the Consell General. According to the government, this draft Law adopts the principles of institutional loyalty, co-operation in general and mutual information and assistance. It also deals with the development of public intermunicipal co-operation establishments (EPCIs), management requests and co-operation agreements between authorities and has a whole chapter given over to co-operation in the human resources field, laying down the principle of mobility between authorities.


 

The delegation was also told that despite the absence of a law covering this area, the Comuns provide joint services based on agreements or contracts. Examples of this form of co-operation are joint waste collection centres, the nationally co-ordinated selective waste collection system and forest cleaning arrangements.

 

The rapporteurs conclude that Article 10 is satisfactorily complied with.

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.


Article 11 of the Charter refers to an effective judicial remedy to secure the respect of local selfgovernment.

 

In Andorra, the municipalities have, in addition to ordinary legal remedies, the possibility to lodge a complaint on an individual basis directly to the Constitutional Court. According to Article 82.1 of the Constitution, “Conflicts arising from the interpretation or exercise of jurisdiction between the general organs of the State and the Local Councils shall be settled by the Constitutional Court”.

 

In addition, three Comuns are entitled to lodge appeals of unconstitutionality against laws or statutory rules, within the thirty days following the publication of the rule. The Tribunal constitucional shall pass judgement within the maximum of two months (Articles 83 and 99 of the Constitution).

 

Finally the Comuns may lodge, on an individual basis, a complaint of empara, according to Article 102 of the Constitution (for example to protect the right to jurisdiction).

 

In practice, only 13 conflicts have been submitted to the Constitutional Court between 1997 and 2008, the last one being decided on 8 of June 2009. It is evident that, notwithstanding this broad range of judicial remedies available to local authorities, other avenues to protect local self-government do exist. All the interlocutors agreed that personal and geographical closeness is conducive to the amicable settlement of most of the disputes.

 

The rapporteurs consider that the requirements of Article 11 of the Charter are fully respected in Andorra.

ACCESSION

to the Council of Europe

RATIFICATION

of the European Charter of Local Self-Government

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