Local Government in Europe

The 'Fourth Level' in the EU Multi-Layered System of Governance

Carlo Panara, Michael R. Varney

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135021252
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This work considers the role of local government in 13 EU Member States (Austria, Belgium, Czech Republic, France, Germany, Greece, Hungary, Italy, Netherlands, Poland, Spain, Sweden and the United Kingdom. The book aims to provide an account of the system of local government in each of the countries studied along with a critical and contextual approach to the level of autonomy that local government enjoys. The approach is comparative, based on a questionnaire which all of the authors considered. There is then a detailed conclusion to the book which offers a detailed summary and comparative analysis of the responses in order to better consider the role of local authorities as the 'fourth level' of governance in the EU. The book aims to offer a detailed introduction to and account of each system of local government which may appeal to those seeking an overview of the area, but also a critical and contextual approach that will be of interest to those actively researching in the areas of local and regional government or EU-central-local government relations. The book contains details of reform in local government up to November 2012, including an analysis of the impact of austerity measures on local autonomy where these have become significant.

1 Austria

Municipalities as the “third tier” of Austrian federalism

Harald Eberhard¹

1.1 Introduction: municipalities and basic features of their autonomy

Austria is a federal state,² which consists of three levels: the Bund (hereafter “Federation”), the nine provinces (hereafter “Länder”)³ and the Gemeinden (hereafter “municipalities”). Within the Länder, there are a total of 2,357 municipalities: 15 cities (including the capital Vienna) with their own statutes (Statutarstädte), 200 towns (Stadtgemeinden),⁴ 762 markets (Marktgemeinden) and 1,395 villages (Ortsgemeinden).⁵

In this way, one can say that in the Austrian federal system the Länder represent the intermediate level of governance⁶ between the Federation and the municipalities. The latter could also be seen as the basic level of a system of European governance consisting of four tiers of government; the European Union, the Federation, the Länder, and the municipalities. Unlike the Federation and the Länder, the municipalities do not have any legislative powers and, therefore, are only administrative bodies. The special feature of them is represented in their constitutional right of self-government (Selbstverwaltung), which can be protected by a procedure before the Austrian Constitutional Court (Verfassungsgerichtshof, VfGH).⁷ The Federal Constitutional Law of Austria (Bundes-Verfassungsgesetz, B-VG) recognises the principle of self-government in two manners: on the one hand, with regard to territorial self-government of the municipalities and, on the other hand, with regard to non-territorial or personal forms of government such as professional, social and cultural government.⁸ In this way, the principal constitutional document, the B-VG, contains a Chapter V titled “Self-Government”, which in turn contains a subsection about the municipalities⁹ and – since 2008¹⁰ – a section about “other self-government bodies”.¹¹

Article 115–120 B-VG contain provisions about the organisation of municipalities, their bodies, functions and the relations between them and the Federation or Länder.¹² Article 120a–120c B-VG set up rules for all personal self-government bodies, especially the constitutional preconditions for such bodies, which for a long time had been quite unclear and derived mainly from the jurisprudence of the Austrian Constitutional Court (VfGH).¹³

The concept of self-government could be seen as part of the idea of a vertical separation of powers because of the fact that the executive powers both of the Federation and the Länder are curtailed.¹⁴ The constitutional status of the municipalities, as the most important form of territorial self-government in the Austrian system, does not generally match that of the Länder. However, the municipalities are recognised as a third partner in the system of fiscal equalisation and national budgeting where cooperation between the Federation, the Länder, and the municipalities is closer than in other areas.¹⁵ In this way one can say that the municipalities have – in the light of their constitutional regulation and their importance in constitutional reality – quite a strong position in the Austrian federal system as a “third tier” of it.¹⁶ It is accurate to talk about a “three-layered” type of federalism in Austria¹⁷ and – with regard to the European level – of a “multi-tier system”.¹⁸

The historic roots of municipalities in their function as local government go back quite far into the past. In their modern understanding, the municipalities are a result of changes brought by the Civil Revolution of 1848.¹⁹ The provisional Local Government Act of 1849²⁰ constituted the municipality as a self-governing body within the Provinces of the Austrian-Hungarian Monarchy (the so-called Kronländer).²¹ In 1862 an Imperial Local Government Act (Reichsgemeindegesetz)²² was passed, which became the legal basis for local government for the following 100 years. After the decline of the Monarchy and the foundation of the Republic in 1918,²³ a vivid political discussion took place about the status of the municipalities. The Federal Constitution of 1920²⁴ contained general provisions on local government and stipulated that these principles were to be implemented by Federal and Provincial laws. However, this programme was never implemented. In 1925 a provision came into effect, according to which until specific regulations on the constitutional status of self-governing bodies had been passed, the basic provisions of the Imperial Local Government Law of 1862 still have to be applied.²⁵ This provision is the result of a political compromise, given that in the constitutional discussion of 1919/20 an agreed solution on the legal status of the municipalities could not be found. This provisional situation came to an end in 1962, when the relevant provisions of the B-VG were fundamentally redrafted.²⁶ With some modifications, these provisions are still today the relevant constitutional foundation of the municipalities.²⁷ Article 120 B-VG²⁸ contains a programmatic provision about the possible combination of local communities into larger territorial communities, whose representative bodies would be elected by the respective municipalities, and declares this future combination as a “business of federal constitutional legislation”.²⁹

Article 116 para 1 B-VG³⁰ states that each Land is divided into municipalities and that each municipality is a territorial and administrative body of its own, enjoying the right of self-government.³¹ In contrast to the administrative bodies of the Federation and of the Länder, the municipalities enjoy a certain amount of autonomy, as they are – within their autonomous sphere (“eigener Wirkungsbereich”)³² – not subject to instructions from the Federation or the Länder.³³ In this way, they operate outside the concept of ministerial responsibility.³⁴ At the same time, in order to ensure the democratic legitimacy of their administrative action, they are subject to supervision by the Federation and the Länder.³⁵

The sphere of competence of Austrian local authorities includes two types of responsibilities: those responsibilities which belong to the autonomous sphere of local authorities, and those responsibilities which are delegated to the local authorities. The first type of competence comprises all matters that concern exclusively or predominantly the local community, and are appropriate to be handled by it.³⁶ Local self-government in this sense includes the right and the ability of local authorities to regulate an important part of public affairs under their own responsibility and in the interest of the local population.³⁷

With regard to those powers which are only delegated to the municipalities by the Federation or the Länder (“übertragener Wirkungsbereich”, assigned sphere of competence),³⁸ they are bound by instructions from the delegating authority. Within this sphere of delegated action, municipalities can be qualified as common administrative authorities, like those of the Federation and the Länder, which are bound by instructions of the highest authorities in the relevant field (Art. 20 para 1 B-VG³⁹).

As the municipalities are only administrative bodies, they have, as opposed to the Federation⁴⁰ and the Länder,⁴¹ no right to create legislation in a formal sense (i.e., an act of a Parliament).⁴² Administrative bodies can enact only ordinances (“Verordnungen”), which are general administrative acts and, in the light of the principle of legality (Art. 18 para 2 B-VG⁴³), need a legal basis in each case, and are only entitled to specify the relevant legal provisions. In contrast, both the Federation and the Länder, the other two levels of the Austrian Federal system, exercise legislative and administrative powers.⁴⁴

The existence of an autonomous sphere of competence can be qualified as the core element of self-government in general.⁴⁵ Behind this element, there is the idea that the handling of state functions affecting matters which affect the exclusive or preponderant common interest of the members of a particular group – such as the population of a local community, or professional chambers, like that of the lawyers – can be delegated to members of this group, insofar as these matters can be handled by them.⁴⁶

The territorial dimension of the municipalities shows a high degree of variation; the smallest municipality (Rattenberg/Tyrol) counts 0.11 square kilometres, the biggest municipality (Sölden/Tyrol) has an area of 466.91 square kilometres, whilst Vienna, the capital city, has an area of 414.89 square kilometres. Changes in municipal boundaries and the merging or splitting of municipalities require a special decision by the local council and the approval of the respective Land Government.⁴⁷ From a legal point of view, the changes take place through ordinances of the Land Government or through Land acts.⁴⁸ Depending on the legislation in each Land, the public do not necessarily have to be consulted. In the early 1970s, a number of ‘area reform acts’ (Gebietsreformen) were passed, which unified smaller municipalities to bigger units, thus abolishing these former local communities. The Austr...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of figures and tables
• Notes on contributors
• Acknowledgements
• Introduction
• 1. Austria – Municipalities as the “third tier” of Austrian federalism
• 2. Belgium – Local government in Belgium: A ‘Catch 22’ between autonomy and hierarchy
• 3. Czech Republic – Local government in the Czech Republic: History, current position, prospective evolution
• 4. France – Territorial decentralisation in France: Towards autonomy and democracy
• 5. Germany – Local government in Germany: An indispensable level of EU governance
• 6. Greece – Local authorities in Greece: Organisation, recent trends, European integration, reform, and the “Kapodistrias” tendency
• 7. Hungary – Local government in Hungary: A creeping centralisation?
• 8. Italy – Organisation and responsibilities of the local authorities in Italy between unity and autonomy
• 9. The Netherlands – Local authorities in the Polder–Dutch municipalities and provinces
• 10. Poland – Local government in Poland: Towards consolidation?
• 11. Spain – Ungovernable Spain: Regional subsidiarity and the crisis of local governance
• 12. Sweden – Local government in Sweden: Flexibility and independence in a unitary state
• 13. United Kingdom – Local government in England: Localism delivered?
• 14. Conclusion – The contribution of local self-government to constitutionalism in the member states and in the EU multilayered system of governance
• Appendix: The different tiers of government
• Index