Netherlands

Netherlands - Monitoring report

Date of the monitoring visit: from 14 to 16 May 2013
Report adopted on: 26 March 2014

This is the third report on the state of local and regional democracy in the Netherlands.  It underlines that the Dutch authorities seek on the whole to implement the principles set out in the Charter and are ready to consider the pertinence of ratifying some of the provisions not accepted at the time of ratification of the Charter. The report underlines the efforts made at municipal level, in particular in the context of the “Dualisation” reform and the modification of the Municipalities Act. It also refers to the good relationship between central and local authorities and to the authorities’ desire to ensure citizen participation in the political decision-making process. However, the report does express some concern about the fact that the principle of local self-government is not recognised in the Constitution or the relevant legislation. Moreover, the competences of municipalities and provinces are not clearly delimited and are restricted because of the medebewind co-governance mechanism. The mechanisms for consultation of municipal authorities by central government are also inadequate. Lastly, the report highlights the lack of financial resources of local authorities, which are dependent on state transfers and whose income has been limited by the local taxation reform.

 

It is recommended that the Dutch authorities apply Article 2 of the Charter and define the principle of local and regional self-government in the Constitution or in domestic law. They are urged to clarify and reinforce the “autonomous” and “proper” competences of municipalities and provinces, while also improving the mechanism for consultation between central government and local authorities. The Dutch authorities are also asked to amend the law on municipal and provincial finances and to improve local taxation so that local authorities have greater autonomy. Lastly, the authorities are encouraged to reconsider the relevance of the declaration of non-acceptance of certain provisions of the Charter made when the Charter was ratified by the Netherlands.

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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.


In the Netherlands, the principle of local self-government is not explicitly or openly recognised either in the Constitution or in the applicable domestic legislation (Municipalities Act). An attentive reading of both legal texts (at least the English version of them) reveals that they do not use the words “local self-government”, “local autonomy” or any other similar terminology. As for what concerns the Constitution, the opening article of Chapter 7 (Article 123) does not include a general proclamation of local autonomy or self-government (as is the case in other European constitutions). This section provides that “provinces and municipalities may be dissolved by an Act of Parliament”, which is a rather unusual and forceful way to open up the constitutional regulation of local and regional authorities in domestic constitutions. Neither the subsequent articles of Chapter 7 nor the Municipalities Act (which regulates extensively all important organic, operational and procedural aspects of the working of municipalities) include the words “local autonomy”, “local self-government”, “local self-administration” or “local free administration”. In short, there is no “programmatic” set of initial provisions, such as those that can be found in other domestic legislations on local government.

 

However, this does not mean that the Dutch legal system ignores the principle or the concept of local autonomy. Article 124 para.1 of the Constitution provides that “the powers of provinces and municipalities to regulate and administer their own internal affairs shall be delegated to their administrative organs”. This means that the Constitution recognises, in an implicit manner, that provinces and municipalities have the power to regulate and administer their own internal affairs. Indeed, local self-government is enshrined in the national constitutional tradition and is an essential part of the Dutch political landscape. In this sense, it has been written that “Local authorities’ powers are not attributed to them by the Constitution or the legislature: the Constitution simply recognises the competences they already had before the State existed. This is the foundation for local autonomy in the Netherlands. This autonomy can be characterized as the discretionary responsibility to govern, with both legislative and executive powers, the municipal or the provincial “household”. At present, the "household" is the sphere of public interest that a province or a municipality can oversee”.

 

In addition, the Dutch constitution (Article 124 para.2) also foresees that local authorities may be required “to provide regulation and administration” by an Act of Parliament or by the public authorities of a higher public body. This crucial concept in Dutch public law is called “medebewind” and will be examined infra.

 

Local self-government is thus recognised in the domestic and constitutional traditions, as an inherent part of the governmental landscape, but there is no “open” or “explicit” recognition of that concept. There is no explicit guarantee of local self-government either in the Constitution or in the key statute on municipalities; the actual scope, degree and extension of local self-government in the Netherlands is entirely attributed to regular legislation. Consequently, there is a risk that political considerations of the moment could – through legislation – severely restrict or reduce the intensity or extension of the autonomy enjoyed by provinces and municipalities, up to the potential stage of making it an almost unrecognisable notion (in the light of the most common Western European standards in the matter).

 

This feature has another indirect consequence: since there is no constitutional proclamation of a given/precise content of local autonomy, it is impossible to trigger legal challenges against statutes or regulations approved by the central government that could potentially make an attempt on local autonomy. This topic will be further discussed infra.

 

In the light of the above considerations, the Rapporteurs consider it reasonable to support the view that, at present Dutch constitutional and statutory arrangements do not formally satisfy the requirements of Article 2 of the Charter and that a clearer statement in the Constitution and legislation would provide better protection for local authorities.

Article 3.1
Concept of local self government - Article ratified

Local self-government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population.


The main question that must be addressed under this heading is whether, in the present situation, Dutch municipalities do regulate and manage a “substantial share of public affairs under their own responsibility and in the interests of the local population”. This provision requires an assessment which takes into account the rather “subjective” and relative nature of the concept of “a substantial” share of public affairs”, since there is no official or universal way of measuring that substantiality. The question must be tackled having in mind the historical evolution, the culture and the constitutional traditions of the country at stake.

 

Dutch laws and regulations entrust municipalities with a series of competences and powers that can be depicted as “fair” or “reasonable” in the light of the “unitary” constitutional characterisation of the country (although, of course, improvements could be made). The Congress delegation did not hear any substantial or recurrent claim from local representatives that the present local competences were either insufficient or non-substantial. As a matter of fact, most interlocutors seemed satisfied by the current situation on this point. It must be remembered that, in recent years, the central government has performed several decentralisation processes in favour of municipalities and provinces. What is more, a new and massive decentralisation process is under way at present. Leaving aside the question whether this arrangement is properly funded, this process will attribute to municipalities another significant share of public affairs and responsibilities, in fields that are highly sensitive for local residents.

 

In conclusion, the Rapporteurs consider that the scope of local self-government in the Netherlands can be defined as “mild” or “moderate”, in comparison with other structures throughout Europe. However, the situation is consistent with the national culture and constitutional traditions of the country. Therefore, it can be said that the requirements of Article 3 para.1 of the Charter are satisfied by the present legal and constitutional situation in the Netherlands.

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.


Municipal Councils

 

The rapporteurs would call to mind that there is a governmental project consisting in reducing the number of municipal council members. In total, roughly 1500 councillors are concerned nationwide. The government has provided several reasons for this initiative: to correct the unintended side-effect of dualisation in 2002, whereby municipal councils were expanded by the number of council members who had previously been appointed as aldermen; to make savings and to strengthen appropriate representation. At present, this type of initiative is also taking place in other European countries (Greece, Spain, etc.).

 

 

The government’s proposal has been accepted by the VNG on the provise that the income generated thereby is used for professionalisation. Against the background of the transfer of three decentralisation programmes (youth, care, and Exceptional Medical Expenses Act, AWBZ) to municipalities, the importance of professionalisation is expected to increase further. There is no guarantee, however, that this will take place. On the other hand, other interlocutors expressed their concern and their disapproval of the measure, which they think was unjustified since most local councillors devote a lot of time to their job for which they are not “paid”. The Rapporteurs have been informed since then that this proposal was rejected by the Senate in July 2013.

 

Mayors

 

The fact that Dutch mayors are neither directly elected by the local residents nor by the municipal council is a well-known feature of local democracy in the Netherlands. As the Municipalities Act puts it in its Article 61: “The mayor is to be appointed for a period of six years by Royal Decree on the recommendation of Our Minister” (the Minister of the Interior and Kingdom Relations). Following the amendments to the Municipalities Act in 2001, the municipal councils now fulfil a clear role in choosing the new mayor. This has proved to be an effective system, according to local leaders.

 

The issue of the appointment of mayors was discussed in depth by the 2005 Monitoring report (Part II, paragraphs 11-27). At that time, two bills had been prepared and submitted to the House of Representatives. One bill (Tweede Kamer der Staten-Generaal, Vergaderjaar 2004-2005, Wet verkiezing burgemeester, nr. 29865) concerned the election of the mayor which would be held in the first round at the same time as the election of the council; the second bill (Tweede Kamer der Staaten-General, Vergaderjaar 2004-2005, Wet introductie gekozen burgemeester, nr. 29864) contained changes in the municipal law consequent to the introduction of the directly elected mayor. However, those bills were eventually not approved by the legislature.

 

Since no substantial changes have happened since that date, it does not seem necessary to repeat what was said in the last monitoring Report. However, the question remains as to the necessity to revisit the traditional Dutch arrangement for the appointment of mayors complies with the letter and spirit of Article 3 para.3 of the Charter, which requires that local government “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”. These last words naturally raise the question whether a regular Dutch mayor (“executive organ” under Article 3 para.3) can be considered to be responsible to the Municipal council. This would mean not only that mayors have to inform and “respond” for their management to councils, but whether councils can dismiss mayors and finalise their term of office in cases of loss of confidence or bad political communication.

 

The reply to both questions must be positive, in the light of the applicable provisions of the controlling statute in the field, namely the Municipalities Act. Certainly, Dutch mayors have an institutional profile that is unique in comparative Law. In the Netherlands, mayors cannot be depicted as independent managers, although they have their own profile and duties, independent from the council (they even can seek the annulment of a council decision before the Minister of the Interior). Under the Municipalities Act, it is evident that there is a clear relation of “dependence” of mayors with respect to councils. This can be seen in different aspects of their mandate, and even for what concerns their continuance in office.

 

In this sense, the Municipalities Act provides that “the mayor is to receive remuneration from the municipality regulated by, or pursuant to, an Order adopted in Council”(art. 66.1); that “the council is to enact a code of conduct for the mayor” (art. 69.2); that the mayor is obliged to live in the municipality, and that only the council can lift that obligation (art. 71.2 ); that, “by means of a bye-law, the council can grant the mayor the power temporarily to have groups of persons specified by the mayor detained at a location specified by the mayor” (art. 154a). The key provision in terms of the political responsibility of the mayor is Article 61b.2 of the Municipalities Act, which states that “if a seriously impaired relationship should exist between the mayor and the council, the council can send a recommendation for dismissal to Our Minister through the intervention of the King’s Commissioner” (art. 61b.2), a recommendation which is usually followed. Therefore, it is clear that the council can terminate the duties of the mayor, and there is here a clear “responsibility”, on political or personal competence ground.

 

During the visit, the Congress delegation asked local leaders about this topic. The general understanding was that the present system of appointing mayors fits the Netherlands, and that the influence of the town council in “selecting” the mayor is considered sufficient. On the other hand some attempts to introduce “democracy” ingredients in the process of nominating mayors proved to be unsuccessful: in 2001, provision was made in the law for municipal councils to be able to hold a consultative referendum among their residents prior to issuing the government with a recommendation for the vacancy of the mayor. Since that date, only eight referenda have been held, and the actual rate of participation was very low. The rapporteurs did not find or hear claims in the sense that the system should be changed towards a direct election of the mayor. In the Netherlands, given its long history of coalitions, negotiations and compromise, we expect a mayor to be able to rise above individual party politics and take on rather the role of mediator. In general, the current system is seen as a reasonable one, consistent with the national tradition and culture. On the other hand, no significant claim or movement in favour of the direct election of mayors was detected by the Congress delegation, although a noteworthy recent initiative has crystallised in this field.

 

The House of Representatives member Mr Schouw (D66 Party) has submitted a legislative proposal aimed at amending the Constitution, so that the manner of appointment for mayors and Kings Commissioners should be regulated by Act of Parliament instead of by the Constitution. This proposal of “de-constitutionalising” the way mayors are appointed is backed by the present Cabinet in its Coalition Agreement. It remains to be seen whether this bill will manage to get through the legislative process.

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.


Although Dutch municipalities discharge many powers and responsibilities in several domains of local life, it should be pointed out that there is no comprehensive or codified set of competences for municipalities in the legal system of the Netherlands. The Municipalities Act does not contain such enumeration. The actual competences of municipalities in the different sectors of governmental action are identified by the applicable laws and regulations in each of those sectors. Therefore, there is no “hard core” of essential or “inherent” competences for municipalities whatsoever. Accordingly, the competences granted to local authorities in the different sectors of governmental activity may be widened or reduced by the State legislature.

 

As a general public law principle, governmental responsibilities should be exercised by the authority that can do so most appropriately. In accordance with this idea, the Minister of the Interior is compelled by law, as it were, to encourage decentralisation, and any measure proposed to make certain matters part of central government or provincial policy are to be taken only if the matters in question cannot be efficiently and effectively attended to by the municipal authorities (Article 117, Municipalities Act). As a matter of fact, the 2004/05 Inter-governmental Relations Code encompassed the principle “if possible local, if necessary centrally”.

 

Therefore, responsibilities may be allocated to higher-tier bodies only if this is required for reasons of efficiency and economy. In principle, if the State wishes to allocate a responsibility to a higher-tier body, the legislature must justify why that responsibility cannot be exercised by a lower body.

 

With respect to the fullness, comprehensiveness and exclusiveness of responsibilities, autonomous responsibilities and competences of municipalities in the Netherlands can be considered full, comprehensive and exclusive, while it should also be noted that public authorities of the higher tier supervise the decisions of authorities of the lower tier. This form of control can have a substantial impact on local and regional authorities, as it includes the supervision of autonomous activities, in terms of both their legality and their expediency.

 

In addition to what can be called “proper” or “autonomous” competences, the Dutch constitution (Article 124 para.2) also foresees that local authorities may be required “to provide regulation and administration” by an Act of Parliament or by public authorities of a higher public body (this crucial concept in Dutch public law is, as already mentioned, called “medebewind”. When a local authority acts under a scheme of Medebewind, its autonomy and capacity to take decision is much more reduced as compared to “autonomous” competences. Not to forget that, under “medebewind”, municipalities are “required” (that is, obliged) to provide a given service, to discharge a certain competence that is deeply regulated by the central authority. Therefore, municipalities lack the very essential choice of deciding whether to act or not in a given area, and how to do so. Moreover, the Constitution even provides for specific rules “in the event of non-compliance in matters of regulation and administration required under art. 124, paragraph 2”.

 

A good example of this “medebewind”-type of municipal tasks is the issuance of passports to local residents, a duty that municipalities certainly discharge, but in doing so they must restrict themselves to apply literally the laws, regulations and instructions approved by the central government. As scholars have put it, in most of these cases, “there is no margin for policy-making, but simply the obligation for the mechanical application of the legislation passed by the higher body”. Using a French administrative-law concept, one could say that, in the medebewind regime, municipalities behave as “indirect administration” of the State agencies.

 

Certain local leaders met by the Congress delegation expressed their concerns that in recent times the number and importance of tasks to be accomplished under “medebewind” have increased sharply. It is clear that (from the perspective of local self-government) there is a certain tension between “autonomous” powers and “medebewind” activities: the more tasks municipalities are required to perform under “medebewind”, the smaller local autonomy will be.

 

Finally, Article 4 para 6 of the Charter provides that “local authori­ties shall be consulted, insofar as possible, in due time and in an appropriate way in the planning and decision-making processes for all matters which concern them directly”. On this matter, see, infra.

 

In conclusion, three basic remarks may be formulated in respect of the requirements of art. 4, of the Charter:

 

On the one hand, the number and importance of powers and competences enjoyed at present by Dutch municipalities are generally regarded as “fair” or “reasonable” by local leaders and representatives in the Netherlands. Nothing would support the idea that municipalities are not really a “key” and vigorous actor of public life.

 

On the other hand, the same stakeholders complain that in recent times the number of tasks that municipalities are required to perform under “medebewind” schemes has increased sharply, reducing the autonomy enjoyed previously.

 

Finally, the Dutch public law system incorporates an implicit principle in favour of decentralisation and subsidiarity, whose actual implementation corresponds to the central administration (through the Minister of the Interior). This general clause is not an empty word, but has produced in the past (and is producing at present) precise and concrete decentralisation processes.

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 Dutch constitution provides that the “revision to provincial and municipal boundaries shall be regulated by an Act of Parliament” (Article 123 para.2). The Municipalities Act does not include specific provisions on the matter, but a specific statute deals with the matter: the “Wet algemene regels herindeling” (Wet Arhi). Thus, a modification of municipal boundaries takes place whenever a new municipality is established or suppressed, when two or more municipalities merge, or whenever a territorial modification concerns at least 10% of the local population. As a rule, a re-definition of municipal boundaries can only take place by an Act voted in Parliament, on the initiative of the local bodies concerned. The Minister of the interior is in charge of implementing such act. The Law on the change or local authorities’ territories provides for the necessary rules on the election of the new local representative bodies, and fixes the situation of the local authorities’ staff affected by the changes.

 

In this sense, it is convenient to stress that the process of mergers of municipalities has been a prominent feature in the Dutch territorial landscape. The process started in the 19th century and has continued for decades at a steady pace. Governmental officials told the Congress Delegation that, the process of mergers of municipalities cannot be considered to be definitively closed and that any further merger or fusion would be welcome by the government. However, the merger process must be decided by the municipalities themselves, even though the government may set the necessary financial incentives for such outcome. Merging municipalities is therefore a voluntary initiative of the local bodies concerned.

 

In the light of the precedent considerations, the requirements of Article 5 of the Charter can be considered to be complied with by the current legal scheme.

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.


Dutch municipalities enjoy a fair degree of autonomy in the field of internal organisation, which is commonly considered to be a part of local government. Within the limits of State legislation, the council and the executive board may decide to establish a wide array of different committees and internal structures: a. On the one hand, the council can set up council committees that can prepare the council’s decision-making and consult with the municipal executive or the mayor. The mayor and aldermen are not to be members of such a council committee. The composition of the said council committee must ensure that there is a balanced representation of the parties represented in the council. The chairman of the said committee must be a council member (Article 82, Municipalities Act). b. On the other hand, the council, the municipal executive or the mayor can set up governing committees that can discharge powers which have been delegated to them by the council, by the municipal executive or by the mayor (Article 83, Municipalities Act). c. Thirdly, “the council, the municipal executive or the mayor can set up committees other than those referred” in the precedent letters (Article 84, Municipalities Act). d. Fourth, the council, the municipal executive and the mayor can jointly set up one or more submunicipalities, with a submunicipal authority ruling it. This has to be done by way of council bye-law (Article 87, Municipalities Act). These bodies consist of a submunicipal council and an executive committee to which the representation of a considerable portion of the interests of this submunicipality is assigned and in respect of which the (main) municipal council may even delegate the power to lay down generally binding regulations with respect to that submunicipality. Submunicipal council members are directly elected by the residents of the submunicipality concerned, who are entitled to vote in the election of council members. The cities where municipal structures are most developed are Rotterdam and Amsterdam.

 

The auditing is another sphere where municipalities can adopt autonomous organisational decisions. The Municipalities Act imposes on municipalities the duty to have a specific organ to discharge that duty, but municipalities are free to choose any of the following options: (a) to set a local “audit office” (b) to establish an “audit office function”; (c) if the first option is adopted, to decide whether the municipality should have its own, specific audit office, or whether several municipalities should set up a joint audit office.

 

As regards Article 6 para.2 of the Charter, Dutch municipalities have the power and the autonomy to recruit high-quality staff on the basis of merit and competence. There is no centralised system for recruitment, in the sense of a nationwide, French-type territorial public service. The Municipalities Act lays down specific provisions dealing with the municipal secretary (Articles 100-106) and the municipal clerk (Articles 107-107e). The municipal executive is to regulate the replacement of the municipal secretary, but the council is to appoint the municipal clerk, and suspend and dismiss that officer.

 

Consequently, the current Dutch system meets the requirements enshrined in Article. 6 of the Charter.

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


Under Dutch law, the conditions of office of local elected representatives do provide for the free exercise of their functions. This point has never been put into question by facts or reality, as the Netherlands is an advanced democratic country.

 

As for the financial compensation of local representatives, it should be recalled that the Netherlands made a declaration in their instrument of acceptance deposited on 20 March 1991 to the effect that “it shall not consider itself bound by the provisions of Article 7 paragraph 2 of the Charter” and are consequently not bound by it. Council members receive no salary but an allowance for their work. The position of council member is a part-time position and is considered as an “additional” position, the allowance being a compensation for missed income arising from the main position of the councillor. The level of the allowance depends on the number of residents of the municipality (Decree on the Legal Status for Council and Committee Members).

 

According to the Municipalities Act, council members are to receive a payment for their activities and an allowance for their expenses in a bye-law to be enacted by the council (Article 95). In addition, and insofar as they are not members of the council or the municipal executive, the members of a committee, of a submunicipal council or of an executive committee of a submunicipality as set up by the council, the municipal executive or the mayor, are to receive an allowance enacted by a bye-law from the council (Article 96). Even if these provisions were not ratified by the Netherlands it is interesting to underline that consequently it appears that the situation in this respect would have been considered as satisfactory in the light of the above mentioned (not ratified) provisions. According to the local representatives met by the Congress delegation, the amount of allowances may be considered “fair” or “reasonable”.

 

As regards Article 7 para.3 of the Charter, the Municipalities Act describes in detail what functions and activities are incompatible with the holding of local elective offices (arts. 15 for council members, 36b for aldermen ) and even with the holding of the position of mayor (Article 69). Therefore, this section of the Charter is fully respected in Dutch local government law.

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.


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.


In Dutch constitutional and political tradition, supervision of municipal activities by the province and the central bodies is seen as a part of the system of self-government, a feature that counterchecks local autonomy in order to ensure the unity of the country. This supervision is strictly regulated by the law, and can only be enforced under the law. Thus, the Dutch constitution itself provides for such supervision: Article 132 establishes that the supervision of the municipal administrative organs “shall be regulated by Act of Parliament” and that decisions taken by a municipality´s organs “shall be subject to prior supervision only in cases specified by or pursuant to an Act of Parliament”.

 

At this point, it should be recalled that the Netherlands made a declaration in their instrument of acceptance (1991) that “it shall not consider itself bound by the provisions of Article8 paragraph 2 of the Charter”. In any case, the Dutch system excludes any form of “a priori” or “ex ante” intergovernmental supervision of local decisions, plans and ordinances by the central authorities, except in those exceptional cases provided for by the law. Intergovernmental supervision can be implemented “ex post”, and local decisions may be quashed only by royal decree and on the ground that they conflict with the law or the public interest (Article 132 of the Constitution).

 

Articles 259 to 281 of the Municipalities Act regulate the cases where State authorities are to approve, suspend or to annul municipal decisions. a. Prior approval: Decisions of municipal authorities can be subject to approval only in cases determined by Act of Parliament or a provincial bye-law pursuant to Act of Parliament (Article 259.1). This approval must be given by royal decree. To obtain such approval, the local decision is to be sent to the Minister of the Interior. This Minister makes a recommendation to grant or to withhold the approval sought. The Council of State must be consulted, too. The minister takes the final decision, on the basis of the report of the Council of State (art. 266, the Municipalities Act ). b. Suspension and reversal of local decisions: An order or a non-written decision adopted by the municipal administration may be reversed by Royal Decree, on the grounds of legality or for the protection of the general interest. In this case, state control is triggered by a demand of the mayor. The Municipalities Act describes the procedure. If the mayor is of the opinion that a decision should be considered for reversal, within two days of it coming to his or her attention, he or she is to inform the Minister of the Interior through the Provincial Executive. Simultaneously, the mayor is to inform the body which took the decision (the council or the executive board), and, if necessary, the body that has been charged with its implementation. Within one week of the date of the mayor’s notification, the Provincial Executive is to forward the documents, together with its opinion, to the Minister of the Interior. Then, the said minister is to make a recommendation for the suspension of the contested local decision. The Royal Decree to suspend, withdraw or extend the suspension of a decision or to reverse it, is to be published in the Bulletin of Acts, Orders and Decrees. When a royal decree has been granted, the municipal authority is to make a new decision on the matter that formed the subject of the reversed decision, taking the Royal Decree into account when doing so.

 

The Generic Supervision Act provides for other types of control or supervision of municipal activities, focusing on enforcement issues.

 

Consequently, the system indeed provides for “a posteriori” controls, which are discharged either by the Minister of the Interior or by another sectoral agency. Those controls cannot be based on expediency grounds, but only on reasons of legality, or for the protection of the public interest. In reality, and according to the information facilitated to the Congress delegation, the actual application of such controls is very rare.

 

The laws and regulations on local budgeting and financial relations (Financiële Verhoudingswet) and The Municipalities Act also allow for a specific sort of intergovernmental intervention in that, in general, provinces monitor the budgets of municipalities. When a municipality’s budget becomes unbalanced, the province can intensify its control mechanisms, which means that it approves of the proposed expenditures of the municipal boards. When the province’s measures do not suffice to improve the municipality’s financial situation, there is an article in that law that makes it possible that the municipality gets extra funding from the Municipality Fund.

 

Beyond this verification, there are other forms of more subtle supervision: for instance, the “Nerpe Act” (compliance with European rules by public entities) allows for fines imposed by the EU on the State to be collected from the municipalities. Other indirect controls are introduced when the State imposes performance or efficiency standards on the work of municipalities. However, this cannot be depicted as a true “expediency control”.

Article 8.2
Administrative supervision of local authorities' activities - Non 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.


The financial resources of local authorities are a hot topic and an important source of controversy in the Netherlands. It is important to note that the Netherlands made a declaration in their instrument of acceptance (1991) that “it shall not consider itself bound by the provisions of Article 9 paragraph 5 of the Charter”.

 

In purely legal terms, Article 132 para.2 of the Dutch Constitution provides that: “the taxes which may be levied by the administrative organs of provinces and municipalities and their financial relationships with the central government shall be regulated by Act of Parliament”, and the Municipalities Act include extensive provisions on municipal finances (Articles 186- 266). Furthermore, the Financiële Verhoudingswet regulates the intergovernmental financial relations.

 

As noted supra, this aspect of the Dutch system of local government was analysed in extenso on the occasion of the last Congress monitoring report on the Netherlands (2005). Recommendation 180 (2005) on the state of local finances in the Netherlands Congress mainly discussed the situation of local finances in the Netherlands, based also on Recommendation 79 (2000) on the financial resources of local authorities. In that document, the Congress noted that the local taxation system of the Netherlands was characterised by the fact that 83% of the local fiscal revenue derived from the real estate tax, that the part of the fiscal local income covered only 8.8% of the municipal revenue and that the local taxes covered only 1.1% of the GDP of the country. In the prospect of – by that time – announced amendments on the financial scheme for local authorities in the Netherlands, the Congress recommended the Dutch authorities that they change the provisions of the draft law so as to grant the municipalities an alternative possibility of levying local taxes; furthermore, it called on competent Dutch authorities to consider not following up on the proposals, which would infringe upon Article 9 of the Charter. It also recommended that the Dutch government continue to seek, in co-operation with the Association of the Netherlands Municipalities, ways and means to grant the municipalities by law, as from 2007, an alternative source of local fiscal revenue (simultaneously with the reform of the real estate tax) at least of the same volume as the current real estate tax of which they will have the freedom to determine the rate.

 

In a nutshell, the present situation of local finances (both municipalities and provinces) in the Netherlands may be presented as follows:

 

Sources of funding

 

Local bodies receive budget from different sources: a) Local taxes and other income (for example from land development), b) Lump-sum payment from the Government funds (algemene uitkering, Municipality fund and Provincial fund), c) Allocated payments from the Government funds (integratie- and decentralisatieuitkering), d) Specific transfers from line departments (specifieke uitkering), e) The sale of property and assets.

 

They see fit, where part of that will be used to execute tasks that are set by law. The Government does not formulate binding instructions or guidelines for decentralised governments for setting priorities, programmes or policies, nor does any other Cabinet member. The local democratic process is responsible for the planning and the budget. The Ministry of Interior guides the local governments executing their tasks. In the case of specific transfers (letter “d”, above) local authorities have the obligation to provide ex-post information on the allocation of those payments, to make sure that the money was spent on the goal as described by the competent State department. If not, the money is claimed back from the local authority.

 

Municipalities also get some subsidies from Provinces: for example, subsidies for special initiatives that are also in the province´s interest. Those are for investment in roads and public transport stops, or making plans for touristic places. On the other hand, local authorities can ask for loans from the private sector and form public debt, and the prior approval of the Ministry of Finance is not required.

 

At least twice a year, there is a formal meeting (called “Bofv”) between the Government and the representatives of local authorities on financial issues. The allocation of financial resources by municipalities is not part of these meetings, since decentralised governments are free to spend most of their resources, as long as the local democratic process supports it.

 

Articles 189 and 193 of the Municipalities Law and the Provincial Law respectively state that the municipal and provincial boards need to make sure there is a balanced budget, but that the board can deviate from this when it can make a case that a balanced budget will be achieved within the next three years. In law, there is no limit to the deficit that can occur under these rules. It is up to the financial supervisor of the municipality or of the province to determine what is an acceptable deficit, given the situation. If it is not plausible to assume that a balanced budget will be achieved within the following years, the supervisor will intensify its control.

 

Some fresh data on the financial situation of local authorities 

 

Proportion of transfers granted to municipalities by the State which are free and “earmarked” (pattern of evolution for these figures in the last five years).

 

Official position of the Ministry of Finance on the subject of local authorities finance

 

The fact that the main source of funding for Dutch local authorities comes from central government transfers is not new. A major source of income is the lump sum payment that municipalities receive from the Municipality Fund. Local authorities have complete autonomy as to how they spent this income this income as well as income generated by local taxes. This situation is seen as satisfactory by the present Cabinet. On the other hand, there are no measures taken to increase the tax base or the taxing power of local authorities.

 

The Dutch government supports the view that it has to fulfil the pledge, made in 2005, to increase the Municipal Fund, in order to compensate municipalities for the loss of income produced by the reform of the real estate local tax. As a matter of fact, in 2006 an amount of approximately 1 billion euros was added to the Municipality fund to compensate the loss of income.

 

The law that describes intergovernmental financial relations (‘Financiële Verhoudingswet’) provides for a safety net for municipalities that have an unbalanced budget (Article 12 of that statute).

 

The State’s contribution to the funds is linked to the development of central government’s spending. Because of the economic crisis, there have been budget cuts in the central government budget. Therefore, the State’s contribution to the Funds has been cut as well.

 

For 2012, the volume of debt of local governments amounted to 53.8 billion euros. One of the measures that are being taken is that local government will be obliged to keep their deposits at an account at the Ministry of Finance (treasury banking).

 

During the consultation process, the Minister of the Interior and Kingdom Relations informed the Rapporteurs that a letter had been sent in October 2013 to the House of Representatives on the subject of the “Design of the Constituent Fund for the Social Domain”, concerning the sub-fund for the financial compensation of the future decentralised responsibilities of municipalities in the social area. For this new responsibility, a specific budget without separate divisions, aimed at inceasing participation in society, was considered appropriate. With this “design”, the Cabinet sought for a balance between, on the one hand, the policy freedom for municipalities to provide local services and on the other, the measures necessary for its successful implementation during the first transitional years.

 

Conclusions

 

Although the Congress Recommendation 180 (2005) did not have the desired impact on national authorities and the situation remained unchanged. Its findings and general assessment of the insufficiency of the “own resources” of municipalities are still valid today. In the last years, the legal context has not been amended in order to increase the local taxes or “own resources” in general. Although Dutch municipalities do levy some taxes, they are mainly funded by a central government-run program, called “Municipalities Fund”, which transfers the amount granted to every municipality according to a complex set of criteria, data and coefficients (more than fifty).

 

Local leaders concurred on this view, and they claim that their own income remains limited; that they are not fully compensated for the execution of central government tasks in the framework of joint authority; that, if the sustainable government finance white paper is approved, local governments will be hindered in making investments and using their reserves. Since they will no longer be able to place their assets with a bank of their choice, but only with the central government (treasury) banks, they will get reduced returns because the interest rate paid by central government is considerably lower than that offered by the banks. Therefore, and according to local representatives, the Law on the Public Finance (Hof) and the ‘Schatkistbankieren’ (financing by the Treasury) have shown so far examples of what should be avoided. Furthermore, in the Council of State’s publication ”Inter-administrative Relations Re-evaluated” (page 32), it is stated that “the Department has also evaluated two legislative proposals (the Sustainable Public Finances Act and Treasury Banking) which, according to the IPO, VNG and UvW, are being considered jointly as an attempt to limit the powers of decentralised authorities to manage and allocate their general resources for themselves”.

 

All the local politicians met by the Congress delegation stressed the view that the local taxation reform has limited the income of municipalities, since tenants of houses do not pay the general property tax. Furthermore, municipalities also complain about the fact that the Municipalities Fund has suffered subsequent reductions over the years. The Minister of the Interior and Kingdom Relations refers to the report of Staat van Bestuur 2012 (Administration report) that stipulates that the size of the Municipalities Fund has increased in recent years. Municipalities in the Netherlands claim that their tasks have increased which mean a relative loss of fund. As regard the next decentralisation processes, concerning social programs, will be performed by the central government, but the State is not going to give the municipalities the same amount of money that is spent by State agencies on those programs. In the government’s understanding, because municipalities will be responsible for implementing those programs, the fact that they are the administration closest to the citizens will produce in itself some savings and “efficiency gains. Therefore, it is expected that municipalities will be able to implement those programs at a lesser cost. These efficiency gains and savings have been calculated unilaterally by the central government, without sufficient analysis and municipalities complain about the fact that they cannot provide these programs, at the same quality level, with far less money than before.

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 - Non ratified

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


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.


The size, population density and the spatial distribution of local authorities constitutes a more than favourable environment for inter-municipal cooperation in the Netherlands. In fact, the importance of inter-municipal cooperation (which is explicitly provided for by Article 134 of the Constitution) has grown over the last decades, especially on grounds of efficiency and getting economies of scale. Inter-municipal cooperation is used in many areas of local life: housing, town planning, environmental policy, fire prevention, sports and cultural facilities, waste collection and treatment, etc. The most important statute in the field is the “Act on Cooperation” (Wet gemeenschappelijke regelingen) of 1984.

 

Inter-municipal cooperation can be channelled through four basic types of bodies: the “public body” (openbaar lichaam), the “mutual organ” (gemeenschappelijk orgaan), the “central municipality” (centrumgemeente), and the “functional commission” (functionele commissie). The specific case of inter-municipal cooperation in a “metropolitan” area has been described above for Amsterdam. Municipalities can also establish private-Law entities such as companies, associations and foundations.

Article 10.2
Local authorities' right to associate - Article ratified

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


The situation of the “right to associate” requirements of Article 10 para.2 of the Charter in the Netherlands can only deserve a highly positive assessment. In the country there are two powerful, well-structured and active associations: one for municipalities (Vereniging van Nederlandse Gemeenten, VNG) and another of Provinces (Interprovinciaal Overleg, IPO) and one of the waterboards(UvW). They have provided much appreciated assistance to the Congress delegation before, during and after the visit. In both cases, the national associations are well-inclusive and representative of local authorities (at municipal or provincial scale). They play an active role in the representation, defence and advancement of the local interest, and they negotiate on a regular basis with the central government on major developments affecting the local interest. This is also favoured by the pattern of inter-governmental negotiation, which is deeply rooted in Dutch political culture. For instance, and as noted above, in 2004 the central government and the representatives of the sub-national authorities drew up an “inter-governmental relations code” (BZK, 2005). Other negotiated positions have followed in subsequent years: for instance, in June 2010 the Dutch local and regional authorities, in conjunction with the Dutch Government, adopted in The Hague a joint position paper on the future of the European cohesion policy.

 

Therefore, the VNG and IPO are fairly recognised as the right interlocutors on territorial governance by the central government, and negotiations are conducted on a regular and fruitful basis.

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.


The geographical location of the Netherlands, the historical tradition and the general co-operative culture of the country provide an optimal ground for municipal co-operation in a trans-frontier context. Furthermore, and as noted at point 1, the Netherlands have signed and ratified the applicable conventions and protocol on the matter (namely, the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities, and its protocols). Therefore, Dutch local authorities are entitled to co-operate with their counterparts in other States. The international cooperation agency of the VNG (VNG international) entertains a huge amount of international co-operation projects, literally around the world. In conclusion, the rapporteurs consider that the requirements of Article 10 of the Charter are presently satisfied by the Dutch system.

Article 11
Legal protection of local selfgovernment - Non 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.


121. Legal protection of local government in the Netherlands presents a rather unsatisfactory situation, although it should be recalled that the Netherlands made a declaration in their instrument of acceptance (1991) that “it shall not consider itself bound by the provisions of Article 11 of the Charter” and are not bound by it. 122. At present, the Dutch legal system does not grant local authorities any specific right to recourse to a judicial remedy in order to secure the free exercise of their powers. There is no specific legal proceeding or remedy that might be used in order to challenge an Act of Parliament that would clearly reduce or disregard the essential content of local autonomy. Moreover, the Netherlands has no Constitutional court, and there are no signs that such a court will be established in the near future. Therefore, there is no legal remedy against a statute that could potentially restrict the scope or the depth of local autonomy in the Netherlands, that is, there are no legal proceedings for enforcing autonomy. However, during the consultation process, the Minister of the Interior and Kingdom Relations stressed that municipalities can challenge any decision that they wish to contest, to the administrative courts (Council of State for the second instance) and also to civil law jurisdictions. 123. The VNG contends that, in 2007, the VNG called for the establishment of a Constitutional Court in its first government report from the Aartsen committee but never received a reply from the government. 31 The government’s comment on this was that they never officially received the report. During the consultation process the VNG informed the rapporteurs that this rapport has been offered to the Minister of the Interior and Kingdom Relations during the annual VNG Congress in 2007 and during his speech the former Minister reacted to this booklet. 124. On the other hand, there is no specific “locus standi” for local authorities in the administrative court system, where they could use local autonomy as a legal argument to challenge a measure, decision or regulation approved by the central government. It is true that municipalities (and provinces) may sue the central government using the system of remedies provided by civil law. A municipality may act in the civil court as an “affected person”, a situation that is seen as sufficient and satisfactory by the Council of State. However, the rapporteurs find it difficult to share this view, in the light of the letter and the spirit of Article 11 of the Charter. 125. Moreover, in recent times new statutory developments have exacerbated this situation. For instance, in recent years the Parliament approved the Crisis and Recovery Act (CRA) which aims to promote economic growth and accelerate decision-making processes (construction of roads, housing, wind farms, etc.). All the projects mentioned in its annexes are subject to a “fast track” approval procedure, where access to court is restricted on ground of administrative efficiency. Namely, Article 1 para.4 of the CRA aims at restricting access to administrative courts, by denying local and regional authorities the right to judicial review by the administrative courts in connection with the approval procedure of such projects. It states that a legal entity established pursuant to public law and not being part of the central government (for instance, a municipality), may only appeal against an approval decision, if the decision is addressed to that legal entity. Technically, this produces the practical result that a municipality cannot challenge in the administrative courts a decision adopted by a central agency by which approval is granted to an infrastructure project that seriously affects that municipality (because it is not the formal “addressee” of the decision). 126. In the light of the precedent considerations, the rapporteurs draw attention again (see supra § 116) that the Netherlands are not bound by Article 11 of the Charter as it was not ratified. Consequently this conclusion will not be part of the Congress Recommendation. This being said, the rapporteurs are of the opinion that the current situation of the Dutch legal system would not meet the requirements of Article 11 of the Charter if it would have been ratified.


31Written reply by the VNG to the questions formulated by the Congress Delegation.

Article 12.3
Undertakings - Non ratified

Any Party may, at any later time, notify the Secretary General that it considers itself bound by any paragraphs of this Charter which it has not already accepted under the terms of paragraph 1 of this article. Such undertakings subsequently given shall be deemed to be an integral part of the ratification, acceptance or approval of the Party so notifying, and shall have the same effect as from the first day of the month following the expiration of a period of three months after the date of the receipt of the notification by the Secretary General.


127. As noted above in various paragraphs, the Instrument of Ratification of the Charter by the Netherlands was deposited on 20 March 1991. The Charter entered into force in respect to the Netherlands on 1 July 1991.The said Instrument contained several “declarations” to different articles of the Charter, on the ground of Article 12, paragraph 2 of the Charter: namely, that the Netherlands will not consider itself bound by the following provisions: Article 7, paragraph 2; Article 8, paragraph 2; Article 9, paragraph 5; Article 11 of the Charter. 128. Moreover, and in accordance with Article 13 of the Charter, the Netherlands declared that it intended to confine the scope of the Charter to provinces and municipalities and that the Charter would apply to the Kingdom in Europe (on the ground of Article 16 of the Charter).32 129. During the consultation process, the Minister of the Interior and Kingdom Relations informed the rapporteurs that, for the time being, it is still not possible to ratify the above mentioned provisions. 130. On the other hand, and in a letter from the Permanent Representative, dated 20 March 1991, handed over to the Secretary General at the time of deposit of the instrument of acceptance on the same day, the Netherlands filed the following “declaration”: “With regard to Article 6, paragraph 2 of the Charter, the Government of the Kingdom of the Netherlands takes the view that, in the framework of the Charter, only Article 9 of the Charter has any bearing on the financial resources of local authorities. This means that local authorities may not take any financial claims on central government based on the provisions of Article 6, paragraph 2, of the Charter. In the opinion of the Government of the Kingdom of the Netherlands, Dutch legislation is in accord with both the wording and the purport of Article 6, paragraph 2, of the Charter.” 131. The rapporteurs were told that, at the time of the promulgation of the Charter Ratification Act, the government committed itself to try to ratify the other provisions where possible. In its third review of inter-administrative relations (see supra) the Council of State stated that the non-ratified provisions to the Charter were still not signed, and that the previous recommendations of the Congress had not been respected. 132. In consequence, this report would recommend the Dutch authorities to consider revisiting the pertinence of reviewing some of the declarations made at the time of ratification. For instance, the withdrawal of the declaration made in connection with Article 7 para.2 of the Charter should not represent a serious problem in the light of the present legal situation. 133. The same can be said in relation with Article 8 para.2, since the current system does, in practice, seem to satisfy the requirements of that provision. The withdrawal of the declaration made in respect of Article 11 represents more difficulties in the light of the above described situation, but Dutch authorities are warmly encouraged to introduce the appropriate changes in the present legal scheme so as to conform to that provision.


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Article 12.2
Undertakings - Non ratified

Each Contracting State, when depositing its instrument of ratification, acceptance or approval, shall notify to the Secretary General of the Council of Europe of the paragraphs selected in accordance with the provisions of paragraph 1 of this article.


127. As noted above in various paragraphs, the Instrument of Ratification of the Charter by the Netherlands was deposited on 20 March 1991. The Charter entered into force in respect to the Netherlands on 1 July 1991.The said Instrument contained several “declarations” to different articles of the Charter, on the ground of Article 12, paragraph 2 of the Charter: namely, that the Netherlands will not consider itself bound by the following provisions: Article 7, paragraph 2; Article 8, paragraph 2; Article 9, paragraph 5; Article 11 of the Charter. 128. Moreover, and in accordance with Article 13 of the Charter, the Netherlands declared that it intended to confine the scope of the Charter to provinces and municipalities and that the Charter would apply to the Kingdom in Europe (on the ground of Article 16 of the Charter).32 129. During the consultation process, the Minister of the Interior and Kingdom Relations informed the rapporteurs that, for the time being, it is still not possible to ratify the above mentioned provisions. 130. On the other hand, and in a letter from the Permanent Representative, dated 20 March 1991, handed over to the Secretary General at the time of deposit of the instrument of acceptance on the same day, the Netherlands filed the following “declaration”: “With regard to Article 6, paragraph 2 of the Charter, the Government of the Kingdom of the Netherlands takes the view that, in the framework of the Charter, only Article 9 of the Charter has any bearing on the financial resources of local authorities. This means that local authorities may not take any financial claims on central government based on the provisions of Article 6, paragraph 2, of the Charter. In the opinion of the Government of the Kingdom of the Netherlands, Dutch legislation is in accord with both the wording and the purport of Article 6, paragraph 2, of the Charter.” 131. The rapporteurs were told that, at the time of the promulgation of the Charter Ratification Act, the government committed itself to try to ratify the other provisions where possible. In its third review of inter-administrative relations (see supra) the Council of State stated that the non-ratified provisions to the Charter were still not signed, and that the previous recommendations of the Congress had not been respected. 132. In consequence, this report would recommend the Dutch authorities to consider revisiting the pertinence of reviewing some of the declarations made at the time of ratification. For instance, the withdrawal of the declaration made in connection with Article 7 para.2 of the Charter should not represent a serious problem in the light of the present legal situation. 133. The same can be said in relation with Article 8 para.2, since the current system does, in practice, seem to satisfy the requirements of that provision. The withdrawal of the declaration made in respect of Article 11 represents more difficulties in the light of the above described situation, but Dutch authorities are warmly encouraged to introduce the appropriate changes in the present legal scheme so as to conform to that provision.


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Article 12.1
Undertakings - Non ratified

Each Party undertakes to consider itself bound by at least twenty paragraphs of Part I of the Charter, at least ten of which shall be selected from among the following paragraphs:

 

– Article 2,

– Article 3, paragraphs 1 and 2,

– Article 4, paragraphs 1, 2 and 4,

– Article 5,

– Article 7, paragraph 1,

– Article 8, paragraph 2,

– Article 9, paragraphs 1, 2 and 3,

– Article 10, paragraph 1,

– Article 11.


127. As noted above in various paragraphs, the Instrument of Ratification of the Charter by the Netherlands was deposited on 20 March 1991. The Charter entered into force in respect to the Netherlands on 1 July 1991.The said Instrument contained several “declarations” to different articles of the Charter, on the ground of Article 12, paragraph 2 of the Charter: namely, that the Netherlands will not consider itself bound by the following provisions: Article 7, paragraph 2; Article 8, paragraph 2; Article 9, paragraph 5; Article 11 of the Charter. 128. Moreover, and in accordance with Article 13 of the Charter, the Netherlands declared that it intended to confine the scope of the Charter to provinces and municipalities and that the Charter would apply to the Kingdom in Europe (on the ground of Article 16 of the Charter).32129. During the consultation process, the Minister of the Interior and Kingdom Relations informed the rapporteurs that, for the time being, it is still not possible to ratify the above mentioned provisions. 130. On the other hand, and in a letter from the Permanent Representative, dated 20 March 1991, handed over to the Secretary General at the time of deposit of the instrument of acceptance on the same day, the Netherlands filed the following “declaration”: “With regard to Article 6, paragraph 2 of the Charter, the Government of the Kingdom of the Netherlands takes the view that, in the framework of the Charter, only Article 9 of the Charter has any bearing on the financial resources of local authorities. This means that local authorities may not take any financial claims on central government based on the provisions of Article 6, paragraph 2, of the Charter. In the opinion of the Government of the Kingdom of the Netherlands, Dutch legislation is in accord with both the wording and the purport of Article 6, paragraph 2, of the Charter.” 131. The rapporteurs were told that, at the time of the promulgation of the Charter Ratification Act, the government committed itself to try to ratify the other provisions where possible. In its third review of inter-administrative relations (see supra) the Council of State stated that the non-ratified provisions to the Charter were still not signed, and that the previous recommendations of the Congress had not been respected. 132. In consequence, this report would recommend the Dutch authorities to consider revisiting the pertinence of reviewing some of the declarations made at the time of ratification. For instance, the withdrawal of the declaration made in connection with Article 7 para.2 of the Charter should not represent a serious problem in the light of the present legal situation. 133. The same can be said in relation with Article 8 para.2, since the current system does, in practice, seem to satisfy the requirements of that provision. The withdrawal of the declaration made in respect of Article 11 represents more difficulties in the light of the above described situation, but Dutch authorities are warmly encouraged to introduce the appropriate changes in the present legal scheme so as to conform to that provision.


32

http://www.conventions.coe.int/treaty/Commun/ListeDeclarations.asp?NT=122&CV=1&NA=&PO=999&CN=999&VL=1&CM=9&CL=FRE

ACCESSION

to the Council of Europe

RATIFICATION

of the European Charter of Local Self-Government

CONSTITUTION | NATIONAL LEGISLATION

In the Netherlands, the principle of local self-government is not explicitly or openly recognised either in the Constitution or in the applicable domestic legislation (Municipalities Act).



25Ratified provision(s)
0Provision(s) with reservation(s)
8 Non ratified articles
18Compliant Provision(s)
0Partially Compliant Provision(s)
1Non-compliant Article