Luxembourg

Luxembourg - Monitoring report

Date of the monitoring visit: from 3 to 5 March 2015
Report adopted on: 21 October 2015

This is the second report concerning the monitoring of local democracy in Luxembourg since the country ratified the Charter in 1987. The report notes the commitment the government has shown for several years to continuing and stepping up the administrative and procedural reform efforts for the benefit of the communes and citizens, in particular in the field of legislation, involving the combination of all legislative amendments with an impact at local level in a single “Omnibus” bill, and in the field of public procurement.  The abolition of the districts and the good practice in terms of changes in boundaries, which are carried out on a voluntary basis after consulting the electorate in the communes concerned by means of a referendum, are among the many measures favourable to communes.

 

The rapporteurs underline the need clearly to delimit the powers of the state and the communes, relax the administrative supervision of the communes’ activities with a view to confining it to verification of strict legality and provide communes with sufficient own resources to enable them to exercise their powers, taking account of changes in their core tasks and income disparities between communes.  The government is also asked to review the staff recruitment policy for communes so that they can determine for themselves the kind of internal administrative structures which they wish to have, independently and without having to seek ministerial approval.  Formalising the procedure for consultation of SYVICOL by central government, which would co-ordinate the entire dialogue process, is also recommended in order to ensure that it becomes a permanent practice, in particular with regard to all matters concerning the communes.  Lastly, the government is urged to sign and ratify, in the near future, the Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority (CETS No. 207).

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Article ratified Ratified with reservation Non ratified
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Article 2
Constitutional and legal foundation for local self government - Article ratified

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


The principle of local self-government is recognised in the Constitution and in legislation, and is reflected in Chapter IX of the Luxembourg Constitution entitled “Communes”, Article 107, paragraph 1, of which provides that “communes form autonomous authorities, organised on a territorial basis, possessing legal personality and managing their own assets and interests through their subordinate bodies”. The amended Communal Law of 13 December 1988 (including the implementing Grand Ducal regulations) lays down detailed rules on the organisation of the communal system. The Council of State and the ordinary and administrative courts ensure compliance with the requirements of the European Charter of Local Self-Government. Consequently, the recognition of local self-government by the Constitution and in domestic legislation is in compliance with Article 2 of the Charter. Likewise, as mentioned above, the importance that Luxembourg attaches to proper local self-government is demonstrated by the fact that the country was the first having ratified the European Charter of Local Self-Government.

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.


Article 107 grants communes the right to manage their own assets and interests through their subordinate bodies (paragraph 1). The second paragraph of Article 107 provides: “in each commune there shall be a communal council elected directly by the commune’s inhabitants; the conditions to vote or stand for election shall be regulated by law”.

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.


Communal councillors are elected directly by the local electorate. Every commune in Luxembourg (there are 105 communes and 105 electoral wards) possesses a communal council from which the college of the mayor and aldermen is appointed. Voting is compulsory for everyone on the electoral roll. Voters may not ask somebody to vote in their place. A system of postal voting, available to certain voters under certain conditions, has been introduced to prevent abstention. A voter who wishes to vote by post must notify the college of the mayor and aldermen of the commune where he or she is registered and request, by ordinary letter or using a form provided by the commune, the requisite ballot material. Postal voting is available solely for voters over the age of 75, Luxembourg citizens resident abroad and those who for duly justified professional or personal reasons are unable to vote in person in the polling station they are assigned to. Those who cannot take part in the vote must notify the state prosecutor with territorial jurisdiction of their reasons and provide the necessary supporting documents. Unwarranted abstention is punished by a fine. Non-Luxembourg citizens, whether EU nationals or not, who have been residing in the Grand Duchy of Luxembourg for five years or more at the time of the application to be included on the electoral roll have the right to vote and to get elected in communal elections without losing their right to vote in the municipality of their country of origin.

 

In this respect, the constitutional and legislative provisions on the concept of local self-government (Article 3 of the Charter) are in compliance with 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.


Under Article 107 of the Constitution and Article 28 of the Communal Law, the communes regulate all matters of communal interest.

 

The Constitution itself directly assigns certain tasks to the communes, including the management of their territory and their assets, regulatory powers and the right to establish communal taxes (Article 107), civil status (Article 108) and the organisation of primary education (Articles 23 and 107).

 

Under Article 28 of the Communal Law, “the communal council shall regulate all matters of communal interest; it shall deliberate or give its opinion whenever its deliberation or opinion is required by the laws or regulations or called for by the higher authorities.” The work of the communal council varies according to whether it is working in the purely communal sphere or on matters which have been delegated to it by the higher authorities. In the former case, it takes decisions, in the latter it merely gives opinions. Sometimes there are shared powers, as in the case of communal spatial planning, where it can take regulatory decisions.

 

Over time various laws have consolidated the original tasks of the communes, assigned new mandatory tasks to local government or shared powers between the state and the communes. Currently the communes’ most important tasks are communal spatial planning and urban development, regulatory powers and policing, water management, various types of waste management, communal roads and traffic regulations, various activities related to environmental protection, the organisation of elementary education, civil status, social assistance and burials and fire services.

 

Alongside their mandatory duties, communes may also perform optional tasks insofar as their financial circumstances allow. Communes’ optional tasks are services that they have freely decided to make available to their inhabitants without being compelled to do so by legislation. These are services which are useful or agreeable to the population but not indispensable. Communes’ optional tasks therefore fall within the designated framework of communal interests. Optional tasks currently being performed by communes include music teaching, sport, tourist facilities, housing, museums and cultural centres.

 

During their visit, the rapporteurs were told about some problems with regard to the distribution of powers between the state and the communes. For communal tasks to be clearly delimited, they need to be set out in clear and coherent legislation and grouped into a communal code. The rapporteurs were informed during the consultation procedure that the code has now been published by circular of the Ministry of Interior of 15 June 2015. This is a “compilation code” covering all the legislation applicable to communes. Local stakeholders are also calling for some optional tasks to be converted into tasks which are de facto mandatory, with the allocation by central government of corresponding financial resources.

 

In this respect, SYVICOL had already pointed in 2008 to the need to review the powers of the communes in relation to the outdated decrees of 1789 and 1790 and the need to make a sharper distinction between national and communal powers so as to create a framework within which communal self-government could be exercised and develop fully.

 

The rapporteurs point out that this process will most certainly have to be accompanied by an adjustment to the communes’ financial resources to take account of the diversification of their tasks. SYVICOL hopes that the reform will take shape soon and cites the government programme which states that it “intends to reform the legislation on communes and adapt their tasks to the new circumstances on the ground”.

 

SYVICOL has also called for an increase in the powers of municipal staff. According to the government programme, “the government will create a statutory basis for municipal staff to be better equipped to supervise and comply with communal regulations. For this purpose, municipal staff must receive the necessary training”. This part of the government programme satisfies a long-standing demand by SYVICOL, which points out how important it is to maintain law and order in the communes and to be able to punish conduct which can be qualified as petty local crime or vandalism.

 

As to compliance with the principle that local authorities must be consulted on all matters concerning them directly, the rapporteurs note that SYVICOL is involved in working groups whose aim is to suggest amendments to the legislation. One positive example is the “Omnibus” bill, which has important repercussions for communes and was finalised in consultation with the association of communes.

 

SYVICOL, however, told the rapporteurs of its desire for there to be more systematic consultation on all matters concerning the communes. It is for this reason that on repeated occasions since 2005, SYVICOL has suggested to the government that consultations with the communes be formalised by signing an agreement. This proposal can be found in a resolution of the SYVICOL Committee adopted on 24 September 2012. The resolution contains specific demands in relation to the principle of consultation:

- consultation by the relevant ministry in due course and in an appropriate manner on any proposal likely to have a significant impact at communal level, particularly draft laws and Grand Ducal regulations affecting communes’ powers, interests or financial resources, draft state instructions or recommendations at communal level or draft EU legislation relating to matters affecting the communes;

- a consultation process beginning as soon as draft laws or Grand Ducal regulations are devised and continuing throughout the legislative and regulatory procedure, with the requirement that SYVICOL’s opinion should be sought at the same time as that of the professional bodies;

- access provided by the government to information and documents, which should be guaranteed in respect of matters connected directly with the question or the proposal on which there is consultation;

- assessment of the administrative and financial impact of the new legislation on the communes. For example, bills proposing that powers be delegated by the state to the communes or that new powers be granted to the communes must give details of the financial resources which will be placed at the communes’ disposal to carry out the new tasks.

 

SYVICOL has informed the delegation that some texts have apparently been adopted by the government without prior consultation, including the following in particular:

- the Grand Ducal regulation of 19 December 2014 on the allocation of subsidies for building restoration work;

- the legislation on communal spatial planning, which has been substantially amended since the 2004 law without consultation of the communes, even though it is a shared responsibility;

- sectoral master plans which have led to the preparation of documents without prior consultation and which were communicated to the communes at the same time as they were announced to the public. On the latter point, SYVICOL has, however, acknowledged that the government had been receptive to the observations which it had made following the presentation of the draft sectoral master plans. In this respect, the lack of prior consultation was offset afterwards to some degree by the government holding meetings with many players concerned with the matter and by its declared intention to meet the communes either individually or jointly. 

 

At the meeting with the Minister of the Interior, the minister informed the delegation of his undertaking to consult the communes regularly, namely about six times a year. This is significant progress compared to the practices under the previous government, which only consulted the local authorities from time to time. The minister also confirmed that the agreement proposed by SYVICOL in 2012 could form the basis for a working relationship provided it was established that these consultations would be co-ordinated by the Ministry. The rapporteurs regard this as positive news and are confident that some action will be taken on this point in the near future.

 

SYVICOL has said that co-operation between the communes and the offices of the Ministry of the Interior is functioning satisfactorily.

 

The rapporteurs’ view is that Article 4 is only partly respected in Luxembourg. There is a need to clearly delimit the powers of the state and the communes so as to establish a framework within which communal self-government can be exercised and develop fully. As to consultation procedures, the rapporteurs consider that they are applied in practice. They recommend, nonetheless, that exchanges should be placed on a formal footing with SYVICOL, which is the main discussion partner representing the communes, so as to ensure that this becomes a permanent practice in future. The agreement with the government proposed by the association in 2012 could serve as an appropriate working basis in this respect, while bearing in mind that it would be for the Ministry of the Interior to co-ordinate these consultation meetings.


http://www.legilux.public.lu/leg/textescoordonnes/compilation/code_communal/Code_Communal.pdf

Article 4.2
Scope of local self government - Article ratified

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


Consult reply indicated at article 4.1.

Article 4.3
Scope of local self government - Article ratified

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


Consult reply indicated at article 4.1.

Article 4.4
Scope of local self government - Article ratified

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


Consult reply indicated at article 4.1.

Article 4.5
Scope of local self government - Article ratified

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

 


Consult reply indicated at article 4.1.

Article 4.6
Scope of local self government - Article ratified

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

 


Consult reply indicated at article 4.1.

Article 5
Protection of local authority boundaries - Article ratified

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

 


The rapporteurs addressed the question of the reorganisation of local government in Luxembourg in the context of the reform for the merger of communes (2011-2017) in the light of Article 5 of the Charter.

 

The aim of amalgamating communes in Luxembourg is to establish more robust entities so that they can demand more autonomy and act as a true counterweight to central government. This is the very principle of mergers.

 

In August 2014, the government at the time made a statement undertaking to take the necessary steps to provide the country with a public service and local government structures equipped for the challenges of the 21st century. In spring 2005, the Minister of the Interior and Spatial Planning assessed the critical mass that the communes needed to reach to be in a position in the medium term to offer their inhabitants a proper basic service. The Ministry subsequently presented the Chamber of Deputies with its integrative blueprint for territorial and administrative reform of the Grand Duchy of Luxembourg. On 3 July 2008, a policy debate on the reorganisation of local government in Luxembourg was held in the Chamber of Deputies and confirmed the need for a sustained awareness-raising campaign to promote the move towards strong, self-governing communes.

 

Under Article 2 of the Constitution, “the boundaries and capitals of judicial or administrative districts may be changed only in accordance with a law.” This provision has the distinct advantage that each merger can be practically tailor-made under a special law taking account of the specific characteristics of the communes merging. Neither the Constitution nor the law expressly requires a referendum to be held prior to a merger of communes. The possibility of holding a referendum at communal level does exist in Luxembourg and derives from Article 35 of the modified Communal Law of 13 December 1988, which provides: “the communal council may call on the voters to give their opinions via a referendum on matters of communal interest and on such terms as it shall determine.” Referendums must be held by law if they are requested by a fifth of voters in communes with over three thousand inhabitants and by a quarter of voters in all other communes. In this event, the council must hold the referendum within three months of the request. The arrangements for referendums are established by Grand Ducal regulation. The provisions of the electoral law on compulsory voting, particularly Articles 259 to 262, apply. At all events, referendums are only consultative.

 

The arrangements for this type of referendum are governed by the amended Grand Ducal regulation of 18 October 1989, under which everyone on the electoral roll for communal elections may take part in a referendum. This includes foreign nationals who fulfil the conditions of the modified Electoral Law of 18 February 2003 and have asked to be included on the electoral roll. Although, under domestic law, holding a referendum in the event of a merger of communes is merely a possibility, this form of consultation has always been used without exception, with reference among other things to Article 5 of the Charter.

 

After the first wave of mergers in the 1970s, reducing the number of communes from 130 to 118, the following further mergers were carried out, reducing the number of communes to 105 by 2015:

 

Merger laws and new merged communes established since 2004:

- 21.12.2004 Tandel Bastendorf and Fouhren

- 14.07.2005 Kiischpelt Kautenbach and Wilwerwiltz

- 28.05.2009 Clervaux Clervaux, Heinerscheid and Munshausen

- 24.05.2011 Esch-sur-Sûre Esch-sur-Sûre, Heiderscheid and Neunhausen

- 24.05.2011 Käerjeng Bascharage and Clemency

- 24.05.2011 Schengen Burmerange, Schengen and Wellenstein

- 24.05.2011 Parc Hosingen Consthum, Hoscheid and Hosingen

- 24.05.2011 Vallée de l’Ernz Ermsdorf and Medernach

- 19.12.2014 Wiltz Eschweiler and Wiltz

 

All these mergers were preceded by a referendum. Political decision-makers have always considered themselves bound by the outcome of referendums and SYVICOL has expressed its support for mergers.

 

The mergers of communes in Luxembourg have gone hand in hand with a harmonisation of communal regulations and various administrative and technical services. However, all the merger laws referred to include a transitional measure under which the regulations of the former communes remain in force on the territory for which they were enacted until they are replaced by uniform texts that apply to the entire territory of the commune created by the merger. This measure is essential in order to avoid a legal vacuum when the merger comes into force. In some cases the communal councils of merged communes have even worked together to adopt identical regulations ahead of a merger.

 

However, the delegation has been told that sometimes the co-existence of different regulations within one and the same commune causes a whole range of practical and administrative problems. It is in the area of communal taxes and charges that any disparities are most obvious and that harmonisation is most urgently required.

 

In other areas, the continuing existence of old regulations can cause complications that are somewhat difficult to overcome. This applies chiefly to communal spatial planning, as the harmonisation of several master plans and regulations on buildings, public highways and sites must follow the same procedure as when these documents were originally drawn up, which can easily take more than two years. Likewise, preparing the accompanying document file represents a substantial cost.

 

The question of how communal services are reorganised has to be addressed differently for each merger depending in particular on the existing services and geographical considerations. As a rule, practice has shown that it is essential to combine services and that it is best for the efficient functioning of the new commune to do this as quickly as possible. This often entails major costs (for projects such as the construction of a new town hall or technical facilities or the conversion of existing buildings) and this accounts for a large share of state funding for mergers.

 

It is worth pointing out that the commune resulting from a merger is automatically a member of the intercommunal groupings to which at least one of the merged communes belonged. As far as SYVICOL knows, the difficulties that this caused in the past were resolved in the course of the merger preparation procedure.

 

The offices of the Ministry of the Interior help communes which are candidates for a merger with the formalities.

 

In accordance with a cabinet decision, financial support for mergers of communes from the government is provided by means of a per capita subsidy (EUR 2,500 from 2004 to 2011) based on population size at the date when the merger begins. Payment of this amount is spread over ten years. A sliding scale was applied for the first time to the merger of the communes of Eschweiler and Wiltz under the law of 19 December 2014. The rapporteurs have been informed that the cabinet meeting of 25 April 2014 adopted yet another calculation method for the years 2015 to 2016, which differs from the previous ones in that it no longer applies to the population of the commune created by the merger, but to that of each commune merged. The subsidies are now set at EUR 2,000 per capita per commune for the bracket up to 2,000 inhabitants and EUR 1,000 per capita per commune for the bracket from to 2,001 inhabitants to 3 000 inhabitants.

 

In the light of the foregoing, the rapporteurs conclude that Luxembourg is in full compliance with Article 5 of the Charter, as changes to local authority boundaries are not only voluntary but are preceded by a referendum of the electorate of the communes concerned In addition, the law on mergers provides for “tailor-made” mergers and, in this respect, Luxembourg’s example is clearly a good practice, which it would be worth bringing to the attention of other member states which are considering potential mergers.


According to the government press release of 27 February 2014, “The amounts will be a little lower than before. Communes will receive EUR 2,000 per capita for the first 4,000 inhabitants, then EUR 1,500 between the 4,000th and 6,000th inhabitants and EUR 1,000 from the 6,000th to 10,000th inhabitants.  The amounts will be reduced a little further for communes that merge after 2014.” (https://www.gouvernement.lu/3532771/27-kersch-quotidien?context=3316989).

 

http://www.gouvernement.lu/3673077/25-conseil

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

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


The legislation makes certain tools available to communes to enable them to perform both their mandatory and their optional tasks. Firstly, the communes may carry out their tasks as they wish; secondly, the law provides them with various means of working with other legal entities to complete certain tasks.

 

To perform some of their tasks, the communes employ their own staff (local government officers, employees, workers), who then provide the communal services. Communes are free to establish their own organisation charts and the posts of local government officer they consider necessary for these purposes, albeit always subject to the prior authorisation of the Minister of the Interior. Although the communes establish their own staffing requirements, it is the Minister of the Interior who approves the creation of the post and the appointment of the officer. The representatives of local elected officials claim that this supervision has a tendency to become one of expediency – and sometimes a disproportionate one – rather than one of mere legality. Competitive recruitment procedures are organised by the state but the officers are paid by the commune. It should be pointed out that the Minister of the Interior is entitled to intervene to rectify communal budgets.

 

Article 87 of the Communal Law requires each commune to have a secretary. The rules on the recruitment and examination of candidates for the post of communal secretary are contained in the Grand Ducal regulation of 1 February 2008.

 

Article 92 of the Communal Law requires each commune to have a revenue officer (receveur). The rules on the recruitment and examination of candidates for the post of communal revenue officer are contained in the Grand Ducal regulation of 20 December 1990. Like any other member of the communal staff, revenue officers are placed under the supervision of the college of the mayor and aldermen (Article 57 of the Communal Law). With the assistance of the communal secretary, the college verifies the revenue officer’s accounts at least once every three months. The college is also required to take steps to ensure the safety of revenue office staff.

 

The amended law of 19 July 2004 added a new section to the Communal Law containing rules on communal technical services. As communal spatial planning and urban development are increasingly complex matters, it has become necessary to provide communal authorities with qualified staff who can ensure that the legislation in these areas is correctly applied. This is why communal technical services are now regulated by the communal law. 

 

The communal technical services’ task is to assist communal bodies both with the application of the law on communal spatial planning and urban development and its implementing regulations and with the preparation and implementation of local spatial planning projects and schemes and the buildings regulations.

 

An obligation was introduced into the legislation for communes with 10,000 inhabitants or more to set up appropriate technical services. They were required to include at least one urban or spatial planner who meets the statutory conditions governing the profession and, where needed, one or more officers with a professional background in technical engineering.

 

Every commune with 10,000 or more inhabitants may decide to recruit an urban or spatial planner, and a number of communes with fewer than 10,000 inhabitants may decide, on approval by the relevant minister, to group together to recruit a joint urban or spatial planner in accordance with the procedures laid down by the communal law for the appointment of a joint secretary.

 

Each commune with 3,000 inhabitants or more is required to employ at least one communal officer with a professional background in technical engineering to take charge of technical service duties.

 

During their visit the rapporteurs were told by several mayors that small communes had a real need for specialised urban planning staff. Similarly, the communes repeatedly stressed the need for legal and technical support. The draft constitutional amendment presented to the rapporteurs included an article on the right of communes to set up public institutions.

 

While Article 6 is generally respected, the rapporteurs are concerned about the fact that staff recruitment is subject to the prior approval of the Minister of the Interior with regard to the creation of posts and the appointment of local government officers. The restriction of local self-government in this respect prompts the rapporteurs to reach a finding of partial compliance with this article.

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

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


Consult reply indicated at article 6.1.

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

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


In Luxembourg, mayors are appointed by the Grand Duke. Aldermen are appointed by the Minister of the Interior, with no distinction being made between “cities” and communes. All mayors and aldermen must be appointed from among the communal councillors and the practice is for the majority faction on the newly elected communal council to put forward a proposal to the state authorities. This system has not given rise to any criticism from Luxembourg’s local elected representatives, especially given the fact that the Communal Law provides for the possibility of a no-confidence motion when the communal budget is being voted on, which is a sign that the communal executive body is indeed accountable to the elected council.

 

Under Article 107, paragraph 3, of the Constitution, the Grand Duke has the right to dissolve the communal council, which is directly elected. In the event of commonly acknowledged misconduct, fault or gross negligence, aldermen may be suspended by the Minister of the Interior, while mayors may be suspended by the Grand Duke. The terms “commonly acknowledged misconduct” and “gross negligence” are not defined by the law. They are rather vague and allow central government a wide margin of discretion. The rapporteurs were told that although the Grand Duke has the right under the law to dissolve the communal council and dismiss the mayor, in practice this option has never been exercised.

 

It is not prohibited to hold office at local and national level simultaneously. The Minister of the Interior told the delegation that this possibility might be ruled out in future.

 

The question of the possibility of the full-time employment of mayors and aldermen, particularly in communes above a certain size, is a recurring issue. Any development of this sort would represent a move towards the professionalisation of communal executives, particularly in those communities with the largest number of inhabitants. For communes with 10,000 or more inhabitants, the mayor is granted political leave of 40 hours per week (full time) and the aldermen, 8 hours per week.

 

Persons holding the office of mayor or alderman are paid an allowance which is intended to offset the expenses incurred in the performance of their duties. Allowances for mayors and aldermen are set by the communal council with the approval of the Minister of the Interior. The amended Grand Ducal regulation of 13 February 2009 establishes the upper limits for these allowances. Besides these allowances, mayors and aldermen may not receive any remuneration financed by the commune under any pretext or designation whatsoever (Article 55 of the Communal Law). For example, it has been found in court that the Communal Law prohibits the communes from providing mayors with a free official residence.

 

Mayors and aldermen are not entitled to the fees which may be paid to communal councillors for attending meetings of the council and its committees. However, this prohibition, set out in Article 55, does not apply to travel expenses, subsistence costs or telephone charges.

 

Mayors, aldermen and communal councillors who work in the public or private sectors, along with those who are self-employed or not working and under 65, are entitled to leave for political activities in order to discharge their duties. The detailed rules on leave for political activities are set out in Articles 78 to 81 of the Communal Law.

 

The rapporteurs are of the opinion that the situation in Luxembourg is in compliance with the provisions of Article 7.


Supreme Court of Justice, 31 July 1950, Pasicrisie XV, p. 306.

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.


Consult reply indicated at article 7.1.

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

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


Administrative supervision of the communes is governed by Part 3 of the modified Communal Law of 13 December 1988 entitled “Administrative supervision”. However, numerous other texts require decisions by communal authorities to be approved by a higher authority.

 

The Constitution, in granting communes communal self-government, provided for a supervisory procedure that would aim to prevent communal decisions from undermining the fundamental interests of the state. That is why Article 107 of the Constitution also provides for oversight of communal administration. Such oversight, which the Ministry of the Interior indicated is due to end, constitutes “administrative supervision” and is exercised by the Grand Duke and the Minister of the Interior. The supervision exercised by the state authorities over the communes is regulated by statute, which envisages various measures for overseeing the activities of communal authorities.

 

In the case of administrative supervision, a distinction is made between supervision of activities and supervision of persons.

 

Supervisory power proper (annulment, suspension, approval, substitution of actions) is vested in the Grand Duke and the Minister of the Interior, according to the arrangements described below.

 

Administrative supervision of activities is intended to verify the legality of communal authorities’ activities.

 

The law establishes various means of supervising the activities of communal authorities. The Directorate of Communal Affairs is mainly responsible for reviewing the legality of any acts or decisions of communes, groupings of communes or public institutions placed under the supervision of communes which are submitted to it. It exercises power of approval in the cases expressly provided for by law. In this context, it prepares the decisions of the higher authority, Grand Ducal decrees or ministerial decisions as the case may be, especially in the following areas: real estate transactions above a certain value prescribed by law, large-scale construction projects, leases above a certain value, communal staffing matters and tax regulations.

 

Ex officio measures may be taken in the following circumstances:

- If the budget does not comply with the laws and regulations, the Minister of the Interior will rectify it (Communal Law, Article 124);

- If the budget is not put forward by the college of the mayor and aldermen or if the communal council does not approve it within the prescribed time, the Minister of the Interior will step in and either propose or adopt ex officio a budget covering merely mandatory costs as well as revenues and expenditure that are essential for the functioning of the commune (Communal Law, Article 125);

- In the event that the communal council should seek to avoid payment of mandatory costs which it is required to bear by law, by refusing to allocate all or some of those costs, the Minister of the Interior, after hearing the communal council, will personally charge the expenditure to the budget, in proportion to need, without prejudice to the recourse provided for in Article 107 (Communal Law, Article 125);

- If the college of the mayor and aldermen refuses or omits to authorise expenditure which the commune is required to bear by law, the Minister of the Interior may order that the expenditure be effected immediately. Such decision constitutes an order and the revenue officer is bound to pay the relevant amount (Communal Law, Article 133);

- If the college of the mayor and aldermen refuses or omits to draw up an order for outstanding revenue, the Minister of the Interior may order that the sum be recovered immediately. Such decision constitutes a revenue order requiring the revenue officer to collect the amounts in question. (Communal Law, Article 137);

- In all cases where budgets, accounts or other documents are not submitted within the prescribed time, the Minister of the Interior may, in accordance with Article 108 of the Communal Law, appoint a special commissioner to carry out the outstanding work at the expense of the defaulting parties (Communal Law, Article 165).

 

Supervision of persons may be exercised in respect of individuals (dismissal of a mayor or alderman) or groups (dissolution of the communal council) and amounts to a disciplinary power.

 

Supervision of individuals may be exercised only in respect of mayors and aldermen, who are instruments of local government and, at the same time, representatives of the state. It does not apply to communal councillors.

 

Supervision of persons is referred to in the following legislative provisions:

a. Dissolution of the Communal Council, collective measure: under Article 107, paragraph 3, of the Constitution, the Grand Duke has the right to dissolve the communal council. Neither the Constitution nor the Communal Law specifies in what circumstances such dissolution may take place.

b. Individual measures: the mayor and the aldermen are not merely involved in the administration of the commune; they also act as the state’s representatives at local level. Under the Communal Law, therefore, the government has the power to discipline mayors and aldermen, but not communal councillors.

 

In cases of commonly acknowledged misconduct, fault or gross negligence, aldermen may be suspended by the Minister of the Interior for a period which may not exceed three months unless it is renewed by reasoned decision (Article 41 of the Communal Law). The mayor may be suspended by the Grand Duke in the same instances and on the same terms (Article 63 of the Communal Law).

 

Mayors and aldermen may also be dismissed, by the Grand Duke and the Minister of the Interior respectively, if the situation is sufficiently serious to warrant such measures. Any mayor or alderman who has been dismissed cannot sit on the college of the mayor and aldermen until after the next communal council election following his or her dismissal.

 

The terms “commonly acknowledged misconduct” and “gross negligence” are not defined or clarified by law. The rapporteurs note that these terms are rather vague and allow scope for interpretation, as court rulings have shown. The current conditions governing dismissal allow central government a wide margin of discretion, therefore.

 

The provisions on financial supervision are found in Part 4 of the same law, under the heading “Communal accounts”. Here too, many communal authority decisions, such as approval of the budget and any amendments made thereto during the year, and adoption of the accounts, are subject to ministerial approval. At the same time, the Minister of the Interior has a department responsible for carrying out on-site audits of local government accounts.

 

In its Recommendation 175 (2005), the Congress questioned the conformity of the system of administrative supervision with the Charter and invited the Luxembourg authorities to “revise their legislation on supervision of local authorities with a view to confining such control to a posteriori verification of strict legality”.

 

During the meeting with the rapporteurs, SYVICOL complained of an increase in central government supervision since the 2005 recommendation, notably in the field of urban planning. The Minister of the Interior, for example, can even amend a general development plan (PAG) adopted by the communal council. Although it is enshrined in law, such scrutiny could in some instances amount to a review of expediency.

 

The rapporteurs note that so far, no changes have formally been made to the legislation in question with the aim of relaxing the supervision. There is a law abolishing districts (passed on 7 July 2015, entering into force on 3 October 2015), but it does not make any substantial improvements in this area given that the powers and responsibilities hitherto vested in the district commissioners are simply transferred to other authorities, in most cases the Ministry of the Interior.

 

The previous government indicated in a 2013 activity report that 2013 had been devoted to further efforts to reform the system of administrative supervision with a view to tabling a bill amending Part 3 and various other provisions of the amended Communal Law of 13 December 1988. The aim of this reform was based on the proposals set out in the report by the Chamber of Deputies’ Special Commission on the Territorial Restructuring of Luxembourg and on the objectives set in the governmental declaration of 2009.

 

The reform was accordingly designed to implement the following principles:

a. General supervision concerning the possible annulment of decisions and suspension to be abolished.

b. Supervision concerning the approval of decisions to become the exception.

c. Mandatory transmission of communal decisions to become the rule.

d. A list of decisions which do not have to be transmitted to be drawn up.

e. An institutional dialogue on issues relating to legality to be introduced.

f. Disputes over purely legal questions to be settled by the administrative court.

 

The rapporteurs’ understanding is that the current government is aware of the problem since it states in its governmental programme that “the government believes that the Ministry of Interior must be able to act in a more flexible, effective and speedy manner than is the case at present. To ensure better co-operation between the Ministry and the communes, the Ministry of the Interior needs to be less concerned with supervising and more concerned with partnering and advising the communal councils. In future, the various processes and responsibilities within the Ministry will be made transparent and verifiable...”.

 

At the time of the monitoring visit, there was no evidence of any tangible progress on the reform of supervision. That said, the rapporteurs were informed by the Ministry of the Interior of plans being drawn up in this area which should lead to a fundamental reform in this respect, taking account of the following points: application of the principles of proportionality and subsidiarity redefinition of the scope of ministerial supervision revision of the principle of double ministerial supervision establishment of transparent criteria for the allocation of subsidies to communes establishment of e-government.

 

The rapporteurs therefore consider that the situation is only partly compliant with Article 8. Particularly problematic in their view is the implementation of Article 8, paragraph 3, notably where urban planning and the hiring of local government officers are concerned.

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.


When discussing communal finances, a distinction needs to be made between communes’ ordinary revenues which are designed to cover current expenditure and extraordinary revenues which are designed to cover capital expenditure.

 

Communes’ ordinary revenues are intended to cover their operating costs and may be subdivided as follows:

a. Local taxes:

- communal trade tax  

- land tax

b. State grants:

- the Communal Financial Grant Fund

c. Local charges:

- for drinking water supplies

- for the removal and treatment of wastewater

- for waste disposal

- for the sale of various goods and services (electricity, gas, etc.)

d. State subsidies:

- state contributions towards the cost of operating childcare facilities (maisons relais)

- subsidies for public transport provided by the communes and groupings of communes

- subsidies for music teaching, etc.

 

Local taxes and state grants awarded through the Communal Financial Grant Fund constitute “non-earmarked” income for the communes, whereas local charges and state subsidies are “earmarked” income, to the extent that they are intended to pay for specific services provided by the communes and to finance clearly defined activities respectively.

 

Since the last monitoring exercise, local authorities in Luxembourg are still awaiting a communal finance reform promised by the national authorities. As a result, the mechanisms of local-government finance have remained almost unchanged, with the communes increasingly unhappy with a system of financing that takes no account of communes’ changing tasks or income inequality between communes. Indeed, for years now, the state’s ordinary revenues have been growing at a faster pace than those of the communes and the gap is becoming ever wider.

 

Some differences can nevertheless be observed in the way the various sources of non-earmarked communal revenue, i.e. the Communal Financial Grant Fund, the communal trade tax and the land tax, have evolved.

 

The Communal Financial Grant Fund was instituted under Article 38 of the Law of 22 December 1987 on the state budget for 1988. It is through this fund that non-earmarked grants are channelled from central to local government. The annual grant awarded via the fund is made up as follows:

- 18% of receipts derived from personal income tax determined on an assessment basis and from the withholding tax on wages and salaries

- 10% of VAT receipts, less any sums due to the European Communities by way of own resources derived from this tax

- 20% of motor vehicle tax receipts

- a flat-rate amount which is calculated schematically and the rules governing it which are, where necessary, adjusted annually to reflect changes in the legislation.

 

This tax has grown steadily in recent years. Two main factors account for this upward trend: an expanding job market in Luxembourg, which has helped boost personal income tax receipts, and substantial VAT receipts thanks to e-commerce. Under a European directive incorporated into Luxembourg law in 2014, however, as from 2015, VAT is to be applied in the consumer’s country, rather than the provider’s. The move to the new system of taxation will be spread over four years, which means that VAT receipts from e-commerce will have disappeared entirely by 2019. It is estimated that, as from 2015, the Luxembourg government stands to lose some EUR 800 million per year in VAT receipts, possibly more. Since the communes have traditionally received 10% of these receipts via the Communal Financial Grant Fund, the impact on local government finances will be considerable. During the consultation procedure, the Ministry of the Interior made it clear “that it is not the current government’s intention to alter the mechanisms of the Communal Financial Grant Fund to the detriment of communes’ interests.”

 

The communal trade tax was instituted by the Law of 1 December 1936, amended by the Law of 11 December 1967. Under this legislation, communes are entitled to levy a communal trade tax based on company profits. The communal trade tax is a means of involving communes in local business activities, by compensating them, as it were, for the costs and nuisance generated by these activities. Communal trade tax rates are determined annually by each commune. This tax is generally perceived as favouring communes where there are one or more companies making significant profits. The communal trade tax has been steadily losing ground to the Communal Financial Grant Fund. Under the state budget for 2015, communal trade tax receipts are projected to rise by a further 5.8% in relation to the amount budgeted for 2014. Compared to the actual amount for 2014, the forecasts are down slightly, by 0.6%. Given the “fiscal optimisation” efforts made by many companies, SYVICOL fears that communal trade tax receipts will continue to stagnate over the next few years.

 

It is important to note that receipts from the Communal Financial Grant Fund are the healthiest part of local government revenues, whereas communal trade tax is increasingly proving to be an unpredictable and unstable source of income for individual communes.

 

Lastly, under the amended law of 1 December 1936, communes are permitted to levy a local land tax. As with the communal trade tax, land tax rates are set annually by each commune. The local land tax would account for a significant share of communes’ overall revenues if the unit values used to calculate it were reviewed. However, the unit values have not been reviewed since 1941, resulting in persistent disparities in the value of some buildings because of their locations, which are now difficult to justify. SYVICOL has spoken out in favour of reforming the land tax to reflect actual property prices. An interministerial working group, which SYVICOL had been invited to join, had begun to discuss revising the land tax base under the previous government. This working group has not met, however, since the new government took office in December 2013, the latter having announced that it wished to deal with the matter as part of a wider fiscal reform.

 

Revising the unit values on which the land tax is based would help not only to reduce the disparities that currently exist in terms of the value of certain buildings but also to restore communes’ revenues, probably significantly.

 

Communes’ ordinary expenditure naturally depends on available revenue and the tasks they choose to undertake: a distinction needs to be made between mandatory tasks (original, constitutional and statutory) and optional tasks, i.e. ones that are freely chosen by the communes with or without financial help from the State.

 

Examples of tasks which communes are required to perform include:

- maintaining law and order within the commune;

- communal spatial planning;

- drinking water supplies;

- wastewater treatment;

- waste management;

- burials and upkeep of graveyards;

- firefighting;

- road building and maintenance;

- social assistance;

- primary education – care;

- registering births, deaths and marriages.

 

Examples of tasks which communes can choose to perform include the setting-up and operation of sports, cultural and tourism infrastructure; youth facilities (care, day centres, etc.); facilities for the elderly (retirement homes, day centres, etc.), gas and electricity supplies (these tasks had tended to disappear from the local budget because of outsourcing to private entities).

 

As regards taxes, under Article 107 of the Constitution and Article 105 of the amended Communal Law of 13 December 1988, communal regulations introducing charges must be approved by the Grand Duke if the charges in question are in the nature of taxes proper designed to cover general expenditure from the communal budget, such as charges intended to contribute to the financing of collective facilities. During the consultation procedure, SYVICOL stressed that the fiscal autonomy of the communes provided for in Article 107, paragraph 3, is subject to the restriction that the taxes raised must cover a financial need.  The association believes that it is hard for communal authorities to prove the relevant need, as demonstrated by the supervisory authorities’ refusal to approve numerous tax regulations.  The Administrative Court has held the following: “While the communes are fiscally autonomous and can take the initiative of establishing levies and taxes and determining their base, their amount and the arrangements for application and exemption, such fiscal autonomy is not absolute, as the communes may exercise it solely under the supervision of the higher authority, which must ensure that the communes act in accordance with the restrictions provided for by law and demanded by the general interest, including the restriction that their power is exercised to the extent – and hence within the limit – of their needs.

 

This is not the case with communal regulations introducing charges designed to pay for a service provided by the communal authority, i.e. to cover the costs of that service, which is used specifically by the individuals who pay for it. These compensatory charges are subject to approval by the Ministry of the Interior under Article 106,7 of the amended Communal Law of 13 December 1988 and include notably charges for services such as water, gas and electricity supplies, waste disposal, parking and any other charges for services provided by the commune.

 

Such decisions must be approved by the Ministry of the Interior. Following approval, the decisions must be duly published in the commune by displaying them according to the procedure laid down in Article 82 of the Communal Law and then placing a notice in the official gazette.

 

Where the Ministry of the Interior finds that a tax regulation passed by a communal council is not in keeping with the law or is not in the general interest, it will return the decision to the relevant communal authorities, explaining the reasons why it cannot approve the proposed provisions and will invite the communal council to reconsider the regulation in the light of the comments made.

 

When drawing up the state budget for 2015, the government adopted several measures which SYVICOL believes will have an adverse impact on local finances and which it has condemned as detrimental to communes’ financial autonomy. These measures concern the following three points:

- the decision not to allow the communes to share in the extra income generated by the increase in VAT

- abolition of the state contribution towards financing the two-yearly salary increments

- the capping of communal trade tax receipts at three times the national average per capita revenue from Communal Trade Tax.

 

The Minister of the Interior has presented this package of measures as an initial step towards reforming local finances, to be followed by more extensive reform in the coming years. SYVICOL believes that, rather than carrying out genuine reform, the government is engaged in an exploratory process that is giving rise to an array of disparate measures aimed at reducing state financial transfers to the communes in order to shore up the state budget.

 

Given the current situation in the communes, which have long been calling for local finance reform, the rapporteurs feel that any such reform should seek to achieve the following goals:

- provide the communes with predictable and stable income;

- introduce a system to ensure that receipts are allocated between communes in a fair manner and are commensurate with their tasks.

 

The rapporteurs also feel that the mechanisms for financial equalisation could stand to be developed further. In this regard, representatives of SYVICOL have called for discussions on setting up an independent equalisation mechanism, including by dividing communes into categories (e.g. small, medium-sized and large).

 

As regards consulting local authorities according to the criteria laid down in Article 9, paragraph 6 of the Charter, the rapporteurs are of the opinion that genuine consultation does in fact occur in practice. The Ministry of the Interior sends draft legislation to SYVICOL and holds meetings with mayors. Local elected representatives, moreover, have confirmed the existence of such co-operation between central and local government, although they believe it is too ad hoc and wish it to be more regular. There is, however, no legal framework that would make it compulsory to consult the communes via SYVICOL, the main discussion partner representing local elected officials in Luxembourg, in all matters which concern them directly.

 

As regards borrowing, it is important to note that communes are permitted to take out loans only in order to fund extraordinary expenditure, if other methods of financing are neither feasible nor economical and if the commune is in a position to make regular repayments. Any loans in excess of EUR 50,000 must be approved by the Minister of the Interior.

 

Under the law of 23 February 2001 on groupings of communes, furthermore, certain groupings are entitled to borrow in order to pre-finance communes’ capital investments. Accordingly, local government groupings set up for the purpose of ensuring drinking water supplies, wastewater treatment, waste management or the construction and running of crematoria, may borrow in order to obtain the funds needed to finance capital expenditure connected with these tasks. At the request of the grouping, communes must make a contribution equal to at least 30% of the total capital required, meaning that the maximum loan that can be awarded by the grouping is 65% of the amount requested by the commune. As the contributions are gradually released, the grouping uses the funds to repay the loan. The debt interest is payable by the commune concerned.

 

Borrowing may be used only to obtain the funds needed to balance the extraordinary budget and only then if all the funds carried over from previous years have already been used up and provided the ordinary budget can support the capital and interest repayments.

 

With the increase in repayment capacity, local government debt had increased in 2009 and 2010, before levelling off at EUR 826.4 million at the end of 2013. At the same time, the total value of newly contracted loans declined sharply between 2010 and 2013, mainly because of the increase in revenues in recent years. For 2014, the available figures indicate a similar pattern to that observed in previous years.

 

As regards access to the national capital market, under Article 173ter of the amended Communal Law of 13 December 1988, communes and groupings of communes may, without prejudice to the legislation on public procurement, conclude among themselves and with public and private legal entities and individuals, agreements on matters of communal interest. These agreements must be approved by the Minister of the Interior if the amounts involved exceed EUR 100,000. In addition, the ministerial circular of 24 January 2014 has set new thresholds for public procurement contracts covered by European directives as from 1 January 2014. For example, for public works contracts concluded by local authorities, the threshold is EUR 5,186,000, whereas for supply and service contracts, it is EUR 207,000.

 

The rapporteurs conclude that Article 9 of the Charter is being partly complied with.  The issue of free disposal of sufficient own resources seems to pose a problem.  It is worth noting that Article 119, paragraph 3, of the draft revised Constitution currently being debated in Luxembourg provides that “The communes are entitled to the financial resources for performing the tasks assigned to them by law”. This provision is an innovation compared with the current text.  If it were adopted, the rapporteurs believe that it would clearly be a very positive development, provided that it was implemented in practice. Local authorities are having to contend with the difficulties of introducing a system of financing which does not always take account of changes in their core tasks and income disparities between communes. The rapporteurs also feel that the equalisation formula and the criteria on which this formula is based could stand to be reviewed. Speaking to the delegation, the Minister of the Interior confirmed that he intended to revise the formula, just as, under the fiscal reform, he is planning to review the unit values for the land tax which have remained unchanged since 1941, resulting in lost earnings for local authorities. The rapporteurs therefore wish to underline that while paragraphs 1 to 5 of Article 9 are not being fully observed by Luxembourg, they received an assurance from the government that these provisions were currently receiving close attention from the authorities. The rapporteurs will follow any developments that occur in this area.

 

 As regards conformity with paragraphs 6 to 8 of Article 9, the rapporteurs are of the opinion that these provisions are being observed. The government’s procedure for consulting local authorities is followed in practice. The rapporteurs’ view is that it would be a good idea to place this regular consultation on a more formal footing, with the government providing co-ordination, so as to ensure that this becomes a permanent practice in future. 


Administrative Court Decision 6-12-07 (23020C to 23023C and 23040C).

Article 9.2
Financial resources of local authorities - Article ratified

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


Consult reply indicated at article 9.1.

Article 9.3
Financial resources of local authorities - Article ratified

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


Consult reply indicated at article 9.1.

Article 9.4
Financial resources of local authorities - Article ratified

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


Consult reply indicated at article 9.1.

Article 9.5
Financial resources of local authorities - Article ratified

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


Consult reply indicated at article 9.1.

Article 9.6
Financial resources of local authorities - Article ratified

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


Consult reply indicated at article 9.1.

Article 9.7
Financial resources of local authorities - Article ratified

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


Consult reply indicated at article 9.1.

Article 9.8
Financial resources of local authorities - Article ratified

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


Consult reply indicated at article 9.1.

Article 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.


Luxembourg communes are 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. SYVICOL is a case in point. Since 1996, it has been working to promote, safeguard and defend the general and common interests of its members.

 

SYVICOL has accordingly managed to establish itself as a spokesperson for the communes, by becoming the government’s preferred contact in all matters concerning local authorities. Alongside its lobbying activities in decision-making processes at national level, SYVICOL actively engages with several European and international bodies whose task is to defend common interests.

 

The communes’ increasingly numerous and extensive responsibilities in the social, economic and cultural spheres together with communal and national spatial planning have ultimately served to put intercommunal consultation and co-operation on a more formal footing, not least through local government groupings, of which there are now 67.

 

The rapporteurs conclude that the situation is therefore in conformity with Article 10 of the Charter.


2014 activity report, Government of the Grand Duchy of Luxembourg, Ministry of the Interior.

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.


Under the Constitution (Article 107, paragraph 1), the communes possess legal personality and, as such, can take legal action against any state decision that might interfere with the free exercise of their powers.

 

Supervisory measures may also be challenged in the courts. Article 107 of the Communal Law further provides that local authorities have a right of appeal concerning any decision of an individual or regulatory nature which has been set aside or denied approval by the Grand Duke, by the Minister of the Interior or by another supervisory authority. Such appeals are to be lodged with the Administrative Court.

 

As regards communal council decisions which require the approval of a higher authority if approval is denied, the communal authorities can appeal to the Administrative Court.

 

In the light of the foregoing, the rapporteurs consider that the situation is wholly compliant with Article 11 of the Charter.

ACCESSION

to the Council of Europe

RATIFICATION

of the European Charter of Local Self-Government

CONSTITUTION | NATIONAL LEGISLATION

The principle of local self-government is recognised in the Constitution and in legislation, and is reflected in Chapter IX of the Luxembourg Constitution entitled “Communes”, Article 107, paragraph 1, of which provides that “communes form autonomous authorities, organised on a territorial basis, possessing legal personality and managing their own assets and interests through their subordinate bodies”.



30Ratified provision(s)
0Provision(s) with reservation(s)
0 Unratified Provision(s)
11Compliant Provision(s)
19Partially Compliant Articles
0Non-compliant Article