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Monaco - Monitoring report

Date of the monitoring visit: from 16 to 17 May 2017
Report adopted on: 28 March 2018
Files : Report CG34(2018)16 | Recommendation 417 (2018)
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This is the first report on local democracy in Monaco since the country ratified the European Charter of Local Self-Government in 2013.

 

The report shows that the country has a satisfactory level of local self-government. It welcomes good relations between central government and the Municipality of Monaco, existing legal mechanisms for consulting the Municipality in several fields and adequate administrative structures and financial resources of the Municipality. The Congress similarly welcomes that administrative controls are aimed exclusively at ensuring compliance with the law.

The report however raises certain concerns regarding the political responsibility of the mayor and his deputies, the lack of appropriate consulting of the Municipality on the annual lump-sum appropriations allocated to it and the absence of the right to judicial remedy to challenge a law that is found not compliant with Title IX of the Constitution or with the Charter.

 

It is therefore recommended that the national authorities introduce mechanisms to ensure political accountability of the municipal executive to the Municipal Council, put in place a mechanism for consulting the Municipality on the annual lump-sum and acknowledge the Municipality’s right to challenge the constitutionality of laws on grounds of violation of Title IX of the Constitution and the compatibility with the Charter. The report calls on the Monegasque authorities to consider ratifying Articles 8.3, 9.2 and 10.2 of the Charter that are respected de facto.

 

Lastly, Monaco is invited to consider 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.

Despite Monaco’s small geographical size, local government is a long-established tradition here and the Municipality’s history is tied up with that of the Principality. Representative democracy began in the Principality in 1910 with the election by universal suffrage of the Municipal Council. For this reason, a remarkable amount of space had already been granted to the Municipality in the 1911 Constitution. This tradition continued with the 1962 Constitution: Chapter IX is given over entirely to the Municipality and the first article states that “the territory of the Principality forms a single municipality” (Article 78).

 

However, the Constitution makes no explicit reference to local self-government. It was Article 1 of Law No. 959/1974 on municipal organisation, as amended by Law No. 1.316 of 29 June 2006, which introduced the principle of free administration: “The territory of the Principality shall form a single municipality endowed with legal personality. It shall administer itself freely, via an elected council, in accordance with procedures prescribed by the Constitution and the law”.

 

It should also be considered that, in addition to being formally enshrined in the texts, the principle of local self-government is embodied in other provisions, such as those on the powers of the elected Municipal Council, supervision and local finances.

 

Bearing in mind the foregoing, the rapporteurs conclude that Monaco complies with Article 2 of the Charter.

Article 3.1
Concept of local self government - Non 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.

Monaco has not ratified Article 3, paragraph 1, of the Charter.

 

When Monaco ratified the Charter, it adopted an interpretative declaration concerning Article 3, in which it stated as follows: “The Princely Government recalls that the territory of the Principality, with a surface area of approximately 2 km², constitutes only one municipality which is an autonomous institution established by the Constitution, endowed with legal personality and governed by public law. Therefore, the concept of local self-government as stipulated in Article 3 of this Charter applies there, in Monaco, in light of the specific institutional and geographical characteristics of the country, within the framework defined by Chapter IX of the Constitution and by Law No. 959 of 24 July 1974”.

 

The main question posed by paragraph 1 of Article 3 is whether local authorities regulate and manage “a substantial share of public affairs”, which cannot be said for the Municipality of Monaco, whose budget only represents 5% of the Monegasque state budget.

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.

Paragraph 2 of Article 3 refers to the presence of assemblies comprising members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsible to them.

 

The Municipality of Monaco is run by a Municipal Council of 15 members, elected for four years through direct universal suffrage. This body appoints a Mayor and his/her deputies from among its members (Articles 79 and 80 of the Constitution).

 

The rules on the election of the Municipal Council are contained in Law No. 839/1968, according to which “elections to the Municipal Council shall be by a two-round, plurinominal majority ballot with the possibility of vote-splitting but no preferential voting” (Article 20.5). “A person may not be elected municipal councillor in the first round of voting unless they obtain: (1) an absolute majority of the votes cast; (2) a number of votes equal to a quarter of registered voters. In the second round, a relative majority shall be sufficient, regardless of the number of voters. In the event of an equal number of votes, the oldest candidate shall be elected” (Article 21).

 

These elections clearly correspond to the expectation of paragraph 2 of Article 3, as also shown in satisfactory voter turnout: 54.68% in 2011 and 60.61% in 2015. However, it must be highlighted that the chosen electoral system may lead to all the seats being allocated to one list, which happened in the 2011 and 2015 elections. This weakened the representative nature of the Municipal Council and the political interplay in its activities.

 

The Mayor and the deputies, comprising the municipal executive, are elected by municipal councillors for the same duration as the Municipal Council (Article 7, Law No. 959/1974). Once elected, the Mayor and the deputies may only be removed from office by a ministerial order, after consultation with the Council of State (Article 36, Law No. 959/1974). The Municipal Council is not authorised to hold a vote of no confidence in the Mayor or his/her deputies.

 

The fact that the Municipal Council is not entitled to hold a vote of no confidence in the Mayor (elected by the Council), or to remove him/her from office by any means, makes it difficult to believe that the executive body is responsible to the assembly, as required by paragraph 2 of Article 3. The country’s specific institutional and geographical characteristics do not seem to justify this form of government, which in this respect, resembles the form of government applied in the Principality, except that at municipal level, one of the aspects of the state political system is missing, namely the fact that executive power is exercised by “the high authority of the Prince” (Article 3 of the Constitution). The Princely Government pointed out during the consultation procedure that “a vote of no confidence is an unknown concept for the Monegasque law and institutions and cannot therefore be applied at the local level”. The rapporteurs believe however, that there is no specific characteristic preventing Monaco from steering the Municipal executive body towards the introduction of a vote of no confidence or other means to enforce political responsibility.

 

Consequently, the rapporteurs conclude that Monaco does not comply with 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.

The state’s small size and the existence of only one municipality whose area is the same as the state leads to a distribution of powers between the state and the municipality that is difficult to compare to the distribution in most other European countries.

 

Consequently, the rapporteurs consider it logical that Monaco has not ratified paragraph 3 of Article 4 on the principle of subsidiarity.

 

No provision is made for the Municipality’s powers in the Constitution, which merely states that “the Municipal Council shall deliberate in public on the Municipality’s affairs” (Article 86).

 

Provision is made for them in law, particularly in Article 25 of Law No. 959/1974 as powers of the Municipal Council. Law No. 1316/2006 extended and clarified these powers, as the persons we met pointed out. They cover many areas, including social welfare and recreational activities, particularly for pre-school children or to help elderly people remain in their own homes and activities for senior citizens, municipal events and activities, cultural and artistic activities in municipal buildings, etc. These powers can be regarded as full and comprehensive.

 

In addition, the Municipal Council may express opinions concerning all matters of municipal interest. It is not entitled to publish statements or addresses or express political views (Article 25 of Law No. 959/1974).

 

However, there are still powers such as public transport that remain under the Monegasque Government’s control, although in most countries they are exercised by local authorities. Monaco’s unusual situation should clearly be taken into consideration in this case, as it is transport into France that is at issue, so it is easy to understand that the state would have a say in this regard. The state is responsible for other areas traditionally handled by local authorities, such as town planning, although the Municipality must be consulted. Social assistance is divided between the state and the Municipality (crèches, home help for the elderly, etc.). Our discussion partners emphasised that the organisation of these services is very complex and confusing, but it generally works because the state and the Municipality maintain a good relationship.

 

With regard to the consultation of local authorities, Law No. 959/1974 requires the Minister of State to consult the Municipal Council in the areas of town and spatial planning (Article 26), on changes to their remit and on employment regulations for municipal officials (Articles 26.1 and 53).

 

The same articles contain the rules on the consultation procedure, including the consequences of an adverse opinion by the Municipality. Everyone we met agreed that informal consultations take place regularly between the Mayor and the Minister of State and, when there is a real risk of a stalemate, also with the Prince.

 

Taking into account Monaco’s unusual situation and its legislative framework and practices, the rapporteurs conclude that Monaco complies with Article 4 of the Charter.

Article 4.2
Scope of local self government - Article ratified

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

Consult reply indicated at article 4.1

Article 4.3
Scope of local self government - Non ratified

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

Consult reply indicated at article 4.1

Article 4.4
Scope of local self government - Article ratified

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

Consult reply indicated at article 4.1

Article 4.5
Scope of local self government - Article ratified

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

 

Consult reply indicated at article 4.1

Article 4.6
Scope of local self government - Article ratified

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

 

Consult reply indicated at article 4.1

Article 5
Protection of local authority boundaries - Article ratified

Changes in local authority boundaries shall not be made without prior consultation of the local communities concerned, possibly by means of a referendum where this is permitted by statute.

 

Monaco has only one municipality, which covers the entire 2 sq. km surface area of the state, as established by the Constitution (Article 78). Due to its unusual situation, the rapporteurs consider that Article 5 does not apply in Monaco’s case.

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 should be able to determine themselves what internal administrative structures they wish to be endowed with. The Municipality of Monaco enjoys a certain degree of autonomy in drafting its internal organisation chart, even though it should be remembered that it has no statutory power and that it is the law that gives the detailed rules on the organisation of the municipality.

 

Under Article 17 of Law No. 959/1974 the Municipal Council may set up its own standing committees and special committees for studying specific issues.

 

Under Article 25 of Law No. 959/1974, the Municipal Council’s remit includes: “5) the establishment, management or concession and organisation of municipal services and their transfer or withdrawal; 6) the establishment or amendment of the organisation chart of municipal services, which shall determine, by category of staff, how staff will be assigned, having regard where appropriate to the provisions in the second paragraph of Article 53”.

 

Chapter IV of Law No. 959/1974 contains provisions on municipal officials and staff.

 

Under Article 52, the status of municipal officials and staff is governed by public law provisions. Unless the laws and regulations state that the appointment for a job must be made through a sovereign order, the Mayor appoints and dismisses municipal officials and staff. If necessary, the Mayor may fill vacancies that have temporarily arisen in these jobs for limited periods, provided that he/she immediately notifies the Minister of State of these appointments. Municipal officials and staff work under the Mayor’s authority and are managed by the Secretary General of the Mayor’s office.

 

Article 53 of this law provides that “it shall be compulsory to consult the Municipal Council on the regulations governing municipal officials and the applicable provisions, particularly with regard to the hiring, discipline, dismissal or retirement of municipal staff, and on the hierarchical classification of the grades or jobs of these officials or staff and the establishment of salary scales corresponding to these grades or jobs, under the conditions set out in Article 26.1. The Municipal Council shall present the Minister of State with its proposals on the maximum number of permanent jobs by job category to be allocated by sovereign order to each of the Municipality’s departments”.

 

Law No. 1096 of 7 August 1986 on the regulations governing municipal officials provides for a municipal employment committee, which is chaired by the Mayor and comprises municipal councillors and union representatives of municipal officials. The Mayor deals with all general questions relating to the organisation of municipal services (Article 25).

 

Under the same law, officials are appointed by municipal order, apart from the Secretary General of the Mayor’s office, the municipal tax collector, the Secretary of the Mayor’s office and the heads of municipal departments, who are appointed by sovereign order. The Secretary General is appointed on the Mayor’s proposal while other officials are appointed after consulting the Mayor (Article 19).

 

Bearing in mind the foregoing, the rapporteurs conclude that Monaco complies with Article 6.

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.

With regard to Article 6, paragraph 2, of the Charter on the recruitment of staff, it should be noted that, under Law No. 1096/1986, officials are recruited through competitions. The general organisation of competitions is decided through a sovereign order issued after consultation with the municipal employment committee (Article 20). The composition of the competition panel is established by municipal order (Article 21).

 

According to recent reports sent to the rapporteurs, the Municipality had 673 officials in 2016, representing 14.9% of the Monegasque public sector. No mention was made during the visit of any problems for the Municipality in recruiting high-quality staff.

 

Bearing in mind the foregoing, the rapporteurs conclude that Monaco complies with Article 6.

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.

With regard to Article 7, paragraph 1, of the Charter, which provides that the conditions of office of local elected representatives must provide for free exercise of their functions, the rapporteurs have not been alerted to any objections concerning potential compatibility problems between Monegasque regulations and practices and this paragraph. Once elected, councillors cannot be dismissed. The Municipal Council may be dissolved by a reasoned ministerial order, after consultation with the Council of State (Article 83 of the Constitution and Article 24 of Law No. 959/1974).

 

Bearing in mind the foregoing, the rapporteurs conclude that Monaco complies with Article 7.

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

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

Monaco has not ratified Article 7.2 on financial compensation for local elected representatives. All elected representatives keep their original job and no elected representatives perform their public duties full time. Elected representatives receive emoluments but they do not make pension or social contributions. In the rapporteurs’ view, this system does not encourage unemployed persons to get involved in local politics.

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.

With regard to Article 7, paragraph 3, of the Charter, which provides that functions and activities which are deemed incompatible with the holding of local elective office shall be determined by statute or fundamental legal principles, Articles 16 and 17 of Law No. 839/1986 set out the grounds for ineligibility and incompatibility of Municipal Council members. Voters over the age of 21 on voting day who have had Monegasque nationality for at least five years are eligible for the Municipal Council. Persons whose situations are incompatible with the holding of local elective office are those who have a job or manage a department that is under the supervision of, or dependent on, the municipal authority, and the functions listed in Articles 14 and 15 of the same law (Crown counsellors; members of the Supreme Court or the Council of State; voters who, through another nationality, hold public or elected office in another country; members of the royal household, members of the Government Council, diplomatic staff, members of the judiciary; members of the National Audit Board; persons working directly with the Minister of State or a member of the Government Council; General Commissioners; the Secretary General of the Minister of State; the Controller of Public Spending; the General Inspector of Administration; the Territorial Administrator; the Director of Public Works; the Director of the Budget and Treasury; the Director of Labour and Social Affairs; the Secretary General of the Directorate of External Relations; the Treasurer or General Treasurer of Finance; the Head of Public Security and police commissioners; the Secretary General of the Directorate of Judicial Services; the Secretary General of the National Council; the Secretary General of the Mayor’s office; officials from state legislative departments; and officers in the Law Enforcement, Public Security and Municipal Police departments).

 

Under Article 18 of the same law, “all national or municipal councillors finding, when elected, that their situation is incompatible shall, in the 30 days after the election or, if their election is challenged, after a final court decision, either resign from the functions that are incompatible with public office, or be placed in the position provided for by their conditions of service if performing a public service job; failing this, they shall be automatically considered to have resigned from office. All national or municipal councillors who, for a reason occurring after their election, find themselves in a situation of ineligibility or incompatibility or deprived of their right to vote, shall be required either to resign from their elected office or resign from the function causing ineligibility or incompatibility within eight days; failing this, they shall be automatically considered to have resigned from office”.

 

Bearing in mind the foregoing, the rapporteurs conclude that Monaco complies with Article 7.

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, paragraph 1, according to which 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, poses no problem and Monaco must be considered to comply fully with this article.

 

Although no provision for the administrative supervision of municipal measures is made in the Constitution, Law No. 959/1974 has established regulations on the matter. None of the persons we met mentioned supervision that is not provided for by law.

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.

Article 8, paragraph 2, provides that any administrative supervision of the activities of the local authorities shall normally aim only at ensuring compliance with the law. Monaco must also be considered to be in conformity with this provision, as Law No. 959/1974 was significantly amended by Law No. 1316/2006 to eliminate full state supervision and restrict supervision to a review of the legality of measures.

 

Article 28 contains rules on the supervision of Municipal Council activities: “The deliberations of the Municipal Council shall be subject to a review of their legality by the Minister of State and shall be enforceable 15 days after the date on which they are communicated to the Minister of State, unless a reasoned objection is made in the form of a ministerial order”. 

 

Orders of a regulatory nature adopted by the Mayor “shall be published and enforced ten days after the official copy has been communicated to the Minister of State, unless the Minister of State gives special authorisation when requested by the Mayor for urgent cases. After ten days, it shall be legal to publish and enforce these orders unless a reasoned objection is made in the form of a ministerial order if the Minister of State considers them unlawful” (Article 47 of Law No. 959/1974).

Article 8.3
Administrative supervision of local authorities' activities - Non 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.

Monaco has not ratified Article 8, paragraph 3, of the Charter on ensuring the proportionality of administrative supervision.

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.

Consult reply indicated at article 9.1

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 question of compliance with Article 9 of the Charter on financial resources appears complicated in the case of Monaco, particularly as it has not ratified paragraphs 1-4 and 8. Here it is important to check whether Monaco does not already comply with these paragraphs in practice.

Nor may paragraph 8 be ratified, because Article 59 of Law No. 959/1974 explicitly rules out the possibility of the Municipality taking out loans. 

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 other two paragraphs ratified, 6 and 7, both pose some problems, which could partly be overcome on the basis of Monaco’s unusual situation.

 

Paragraph 7 provides that as far as possible, grants to local authorities shall not be earmarked for the financing of specific projects. In this connection, it must be reiterated that expenditure is divided into two sections (Article 56, Law No. 959/1974). Section I comprises ordinary expenditure while section II is made up of expenditure on facilities and activities carried out on behalf of the state. The latter accounts for 10% of the municipal budget. Projected expenditure in section II of the municipal budget is discussed by the Mayor and the Minister of State every year before 1 July so as to determine the amount of the grant for facilities and activities on behalf of the state (Article 58, Law No. 959/1974). Bearing in mind Monaco’s unusual situation and that this is only a small part of the municipal budget, the rapporteurs consider that Monaco complies with paragraph 7 of Article 9. 

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 other two paragraphs ratified, 6 and 7, both pose some problems, which could partly be overcome on the basis of Monaco’s unusual situation.

 

Paragraph 6 provides that local authorities must be consulted, in an appropriate manner, on the way in which redistributed resources are to be allocated to them. Monaco cannot be considered to comply with this provision because of the procedure to determine the fixed grant. 

 

Article 7 of Law No. 841/1968 provides that “the fixed operating grant shall be calculated by applying the coefficient for the projected change in expenditure given in sections 3 and 4 of the initial state budget for the following year to the grant for the current year. If, at the end of the following year, the actual change in expenditure incurred differs from the original estimation of the percentage, the fixed grant shall be adjusted accordingly.

 

When the fixed grant is calculated, all transfers of state or municipal duties which may result in an increase or decrease in the sum required shall be taken into account. The costs corresponding to the performance of transferred duties shall be assessed prior to the transfer.

 

If the balance of the municipal budget is upset by an exceptional external event, the Mayor may ask the Minister of State to reassess the budgetary allocation”.

 

This procedure has been criticised by the Municipality and the National Audit Board, because the state budget is adopted at nearly the same time as that of the Municipality, so that the coefficient for the projected change in the funds and functioning of the state may vary until adoption. For the municipal budget to be prepared in the appropriate conditions, it is essential for the various budgetary elements on which the calculation is based, to be transmitted to the Municipality in a timely manner. In contrast, the Minister of the Interior believes that the provision does not pose any particular problem, the system generally works very well and adjustments are always possible, with the Municipality’s agreement.

 

Although they recognise the complexity and the highly technical nature of the procedure, the rapporteurs consider that the Municipality should be consulted in an appropriate, timely and transparent manner on the way in which the fixed grant is allocated, as provided for by paragraph 6 of Article 9.

 

The rapporteurs conclude that Monaco does not fully comply with Article 9, paragraph 6. They also invite the Monegasque authorities to ratify paragraph 2 of Article 9, since it complies fully with this provision.

Article 9.5
Financial resources of local authorities - Article ratified

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

One of the paragraphs ratified, specifically paragraph 5 of Article 9 on financial equalisation procedures to protect financially weaker local authorities, is not applicable to Monaco, owing to the existence of only one municipality. 

Article 9.3
Financial resources of local authorities - Non ratified

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

Consult reply indicated at article 9.1

Article 9.1
Financial resources of local authorities - Non 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 question of compliance with Article 9 of the Charter on financial resources appears complicated in the case of Monaco, particularly as it has not ratified paragraphs 1-4 and 8. Here it is important to check whether Monaco does not already comply with these paragraphs in practice.

 

The right of local authorities to have adequate financial resources of their own, stated in paragraph 1, does not seem compatible with the special tax arrangements in the Principality. 

Article 9.4
Financial resources of local authorities - Non ratified

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

Consult reply indicated at article 9.1

Article 10.1
Local authorities' right to associate - Article ratified

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

However, paragraph 1 of Article 10, according to which local authorities are entitled, in exercising their powers, to co-operate and to form consortia with other local authorities in order to carry out tasks of common interest, is not applicable to Monaco, as there is only one municipality.

 

The rapporteurs conclude that Monaco complies with Article 10 of the Charter and encourage the Monegasque authorities to ratify paragraph 2, with which it also complies.

Article 10.2
Local authorities' right to associate - Non 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.

Firstly, it should be noted that Monaco has not ratified paragraph 2 of Article 10 of the Charter on 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. While membership of a national association of local authorities is not applicable in Monaco because there is only one municipality, membership of an international association of local authorities still applies.

 

The Municipality of Monaco is a member of the Euro-Mediterranean Regional and Local Assembly (ARLEM), which is the assembly representing local and regional elected representatives from the European Union and its Mediterranean partners. The Mayor of Monaco is a member of the International Association of French-speaking Mayors (AIMF).

 

In the rapporteurs’ opinion, paragraph 2 of Article 10 of the Charter could easily be ratified by Monaco and they encourage the Monegasque authorities to do so.

 

The rapporteurs conclude that Monaco complies with Article 10 of the Charter and encourage the Monegasque authorities to ratify paragraph 2, with which it also complies.

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.

With regard to paragraph 3 of Article 10, according to which local authorities are entitled, under such conditions as may be provided for by the law, to co-operate with their counterparts in other states, the rapporteurs highlight that Article 25, last paragraph, of Law No. 959/1974, as amended by Law No. 1316 of 2006, provides that “the Municipality of Monaco, after deliberation by the Municipal Council, may contact and enter into agreements with foreign local authorities and their associations within the limits of its powers and in compliance with the Principality’s international commitments, on condition that it keeps the Minister of State informed”. The government authorisation provided for in the previous text is no longer required. As a result, the Municipality has fostered intensive cross-border co-operation.

 

The rapporteurs conclude that Monaco complies with Article 10 of the Charter and encourage the Monegasque authorities to ratify paragraph 2, with which it also complies.

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.

Regarding the protection of local self-government, as a legal person the Municipality may contest any act before the courts.

 

Nevertheless, there is a limitation with regard to laws: the task of monitoring the constitutionality of the laws in Monaco is entrusted to the Supreme Court, which is one of the oldest constitutional bodies in the world. Under Article 90-A of the Constitution, however, the review of constitutionality is limited to monitoring compliance with Chapter III of the Constitution, on freedoms and rights.

 

Consequently, the Municipality, in its capacity as a legal person, may appeal to the Supreme Court to contest a law, but only if it infringes freedoms and rights granted by Chapter III of the Constitution, for example with regard to the Municipality’s right to property. The local authority has no judicial remedy against a law to secure free exercise of municipal powers and respect for the principles of local self-government enshrined in Chapter IX of the Constitution and the Charter.

 

Of course, when acting as an administrative court, the Supreme Court has jurisdiction to assess all the Municipality’s appeals against the state’s regulatory or individual decisions. The full Constitution and international treaties form the legal basis in this respect. However, a distinction must be made between international treaties whose standards are directly applicable, in that they establish rights and obligations for natural or legal persons, and those which establish laws and obligations only with regard to the state.

 

As to relations between the state and the Municipality, according to the report which the vice-president of the Supreme Court presented to the rapporteurs, the Municipality has only ever lodged four applications before the Supreme Court concerning alleged abuses of authority by the state.

 

The limited number of applications notwithstanding, it is still possible for the Municipality to appeal against the state’s administrative decisions in several fields, examples being the dissolution of the Municipal Council or measures to suspend or dismiss the Mayor or his/her deputies; decisions made by the government concerning the acts of the Municipal Council or Mayor; government decisions made without consulting the Municipal Council when this is required by law; and government decisions in a field legally reserved for the Municipal Council or Mayor.

 

The rapporteurs conclude that the Municipality of Monaco does not have a direct or indirect right of recourse against laws in order to secure free exercise of their municipal powers and respect for such principles of local self-government as are enshrined in the Constitution and in the Charter. The delegation notes that, although the implementation of Article 11 of the Charter is incomplete in law, the jurisdictional protection of local self-government exists de facto in Monaco: indeed, the Municipality’s recourse to the Supreme Court against decisions to apply laws which affect municipal interests works well.

 

The rapporteurs therefore conclude that there is partial compliance with Article 11 of the Charter.

Article 16.2
Territorial clause - Non ratified

Any State may at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Charter to any other territory specified in the declaration. In respect of such territory the Charter shall enter into force on the first day of the month following the expiration of a period of three months after the date of receipt of such declaration by the Secretary General.

ACCESSION

to the Council of Europe 5 October 2004

RATIFICATION

of the European Charter of Local Self-Government 10 January 2013

CONSTITUTION | NATIONAL LEGISLATION

A remarkable amount of space had been granted to the Municipality in the 1911 Constitution. This tradition continued with the 1962 Constitution: Chapter IX is given over entirely to the Municipality and the first article states that “the territory of the Principality forms a single municipality” (Article 78).



20Ratified provision(s)
0Provision(s) with reservation(s)
11 Non ratified articles
15Compliant Provision(s)
2Partially Compliant Articles
1Non-compliant Article