10.6092/issn.2531-6133/8415
The article takes a critical look at the meaning of the term “local authority”which is one of the main terms of the European Charter of Local-Self Government and considers the question: “can the meaning of the term “local authority” change theessence of local democracy in Europe?”.
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Sergiy Panasyuk
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European Charter of Local Self-Government
The Term "Local Authority" in the European Charter of Local-Self Government: Different Meanings Lead to Different Implementation
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Sergiy Panasyuk
2018/07/09
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The Term "Local Authority" in the European Charter of Local-Self Government: Different Meanings Lead to Different Implementation
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ARTICLES & ESSAYS                                                        https://doi.org/10.6092/issn.2531-6133/8415




The Term “Local Authority” in the European Charter of Local-Self
Government: Different Meanings Lead to Different Implementation

                                             SERGIY PANASYUK†



TABLE OF CONTENTS: 1. Introduction; 2. The Charter’s Term; 3. The Charter’s Provisions; 4.
The Historical Processes and the Documents; 5. The Dictionary and Translating; 6. The
Provisions of the European Outline Convention on Transfrontier Co-Operation Between
Territorial Communities or Authorities; 7. Information about Reservations and
Declarations and Domestic Legislation of Member States of the Council of Europe; 8.
Conclusions.


ABSTRACT: The article takes a critical look at the meaning of the term “local authority”
which is one of the main terms of the European Charter of Local-Self Government and
considers the question: “can the meaning of the term “local authority” change the
essence of local democracy in Europe?”.


KEYWORDS: Law; Public law; Local Autonomy; Local Authority; Local Self-Government; Local
Government; European Charter of Local Self-Government




                                            UNIVERSITY OF BOLOGNA LAW REVIEW

                                                    ISSN 2531-6133

                                                     [VOL.3:1 2018]

           This article is released under the terms of Creative Commons Attribution 4.0 International License


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        1. INTRODUCTION

This article is prompted by three considerations:

        1) A number of European Countries which are member states of the
Council of Europe have signed the European Charter of Local Self-Government1
and have given different meanings to the term “local authority”.

        2) The Charter gave all member states of the Council of Europe which
have signed this document the possibility to autonomously interpret and
implement meanings, principles and terms.

        3) The Charter in the author’s opinion has inconsistencies in the text
with the terms.2

        Thus, this article is about correcting the meaning of the Charter’s term
“local authority”. The paper includes some questions about the problems of
the different terms’ translation and of understanding the principles and
implementation of the Charter in domestic legislation of the member states of
the Council of Europe.




        2. THE CHARTER’S TERM

Local democracy is the main part of any democratic regime in the World.3 The
main document of the local democracy in Europe is the European Charter of
Local Self-Government (hereinafter “the Charter”), which includes basic
principles of local self-government.




†
 Professor of the Department of Social and Humanitarian Disciplines of the Ukrainian-American
Concordia University (Ukraine). Contacts at s.a.panasyuk@gmail.com.
1
  Council of Europe, European Charter of Local Self-Government, Oct. 15, 1985, E.T.S. No. 122. Was
entered into force on September 01, 1988.
2
  M. Pittsyk et al., Pryntsypy Evropeysʹ koyi khartii mistsevoho samovryaduvannya [Principles of
the European Charter of Local Self-Government] 136 (2000).
3
  Sergiy Panasyuk, Aktualni problemy rozuminnya, vyznannya ta realizatsii pryntsypu mistsevoho
samovryaduvanniya v zakonodavstvi Ukrainy [Actual problems of understanding, recognition and
implementation of the principle of local self-government in the legislation of Ukraine], Visnyk
tsentralnoi vyborchoi komisii [Bull. of the Cent. Election Comm’n of Ukr.], Dec. 2 2013, at 70, 73.



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The Charter4 was opened for signature on 15 October 1985, but scholars from
different European Countries are still discussing about its essence.5

         One of such discussions concerns the meaning of the Charter’s term
“local authority”.

         It is one of the main terms of the Charter and its correct understanding
is very important for the correct implementation of the Charter.

         Member states of the Council of Europe have intrerpreted the term
“local     authority”       differently.      Some       of   its    meanings           include:          “local
communities”, “local councils”, “local government bodies”, “local group of
people” and others.6

         To understand the reasons and arguments of why so many versions of
the term “local authority” exist, we need to understand a few key details.

          Firstly, we should analyze the text of the Charter. Then, we should
proceed to a reconstruction of the historical documents, the drafting
procedure, and the adoption of the Charter. Finally, we should examine the
Member States’ information about the adoption of the Charter and their
domestic legislation.




4
  The European Charter of Local Self-Government was drawn up within the Council of Europe by a
committee of governmental experts under the authority of the Steering Committee for Regional
and Municipal Matters on the basis of a draft proposed by the Standing Conference of Local and
Regional Authorities of Europe. 47 countries (member states of the Council of Europe) have signed
the Charter.
5
  See Pittsyk et al, supra note 2.
Nataliya Kaminskaya, Mistseve samovryaduvanniya: teoretyko-istorychnyy i porivniialno-
pravovyy analiz [Local Self-Government: Theoretical-Historical and Comparative-Legal Analysis:
Teaching Manual]229 (2010).
Vyacheslav Maklakov, Evropeyskaya Khartiya Mestnoho Samoupravleniya [The European Charter
of Local Self-Government], in Reformy mestnoho upravleniya v stranakh Zapadnoi Evropy [Local
Government Reforms in Western European Countries] 111-124 (1993).
A. Zamotaev, Mestnoe samoupravleniye kak element hosudarstvennoho ustroystva [Local self-
government as an element of the state system], Rossiyskayayustitsiya [Russian Just.], no. 6, 1996,
at 17.
Oleg Tarasov, Yuriy Dmitriev, Evropeyskaya khartiya mestnoho samoupravleniya i rossiyskoe
zakonodatel’stvo [European Charter of Local Self-Government and Russian Legislation], Pravo y
zhyzn [Right and life], no. 12, 1997, at 162-172.
6
  Comm. of Ministers, Explanatory Report to the European Charter of Local Self-Government, E.T.S. No.
122 (1985).
Eur. Conf of Local Authorities., Resolution 64 (1968) on a Declaration of Principles of local autonomy, 7th
Sess., (1968).
Conf. of Local and Regional Authorities of Europe, Resolution 126 (1981) on the principles of local
self government, 16th Sess., (1981).



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           3. THE CHARTER’S PROVISIONS

The main part of any legal document is the preamble. In the preamble, we can
find the main principles of the document and the essence of the terms, as laid
down by its authors.

           In paragraph 4 of the Charter’s Preamble is noted: “Considering that
the local authorities are one of the main foundations of any democratic
regime”.

           As we know, the terms “democracy” and “democratic regime”, first of
all mean rule of the people.7 In this case, it would mean – rule of the people
who live in a local area.

           Paragraph 5 confirms the Author’s point of view and states that:
“Considering that the right of citizens to participate in the conduct of public
affairs is one of the democratic principles that are shared by all member States
of the Council of Europe”.

           So, citizens have basic and inalienable right to participate in the local
self-government.

           Paragraph 7 of the Preamble of the Charter denotes that: “the existence
of local authorities with real responsibilities can provide an administration
which is both effective and close to the citizen”.

           It is known the term “citizen” has at least two meanings: “a person
who is a member of a particular country and who has rights because of
being born there or because of being given rights” and “a person who lives in a
particular town or city”.8

           Also, we should notice that the term “citizens” should be analyzed in
two aspects: “as a group of people who have electoral rights” and “as a group
of people without such rights”.

           Next question is: if the term “local authority” is not citizens, does it
mean that local authority is a local body or local council?




7
    DEMOCRACY AND THE RULE OF LAW (José María Maravall & Adam Przeworski eds., 2003).
8
    THE CAMBRIDGE DICTIONARY: https://dictionary.cambridge.org/dictionary/english/citizen.




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The Preamble of the Charter (in its paragraph 9) says that: “this entails the
existence of local authorities endowed with democratically constituted
decision-making bodies and possessing a wide degree of autonomy with regard
to their responsibilities, the ways and means by which those responsibilities
are exercised and the resources required for their fulfillment”.

        If the local authority can have decision-making bodies which are the
councils, the term “local authority” can’t mean the council.

        Maybe, in the Charter (in paragraph 7 of the Preamble) it is written
about citizens like people who don’t have electoral rights in that local area and
just live there.

        The author thinks that the term “local authority” can mean a group of
people who live in local area and have electoral rights. It is very important
because not every person who lives in a local area can elect or be elected. Why
are electoral rights so important? Electoral rights give people real possibilities
to influence local policies and local affairs.

        However, as we know from paragraph 5 of the Charter’s Preamble,
citizens have rights.

        Next provisions might be helpful in finding the solution.

        Article 3 (1) of the Charter declares that: “the 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 local authority realizes its right and its ability in the interests of the
local population.

        First, as we know from paragraph 5 of the Charter’s Preamble, citizens
have the right to participate in the conduct of public affairs. So, local self-
government should be the citizens’ right.

        We can also say that the local authority is not the local population.




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So, what does the term “local population” mean?

          The local population is the number of people who live in a local territory
(area).

          The author thinks that the term “local population” means the group of
people who live in local area and don’t have electoral rights.

          Article 3(2) denotes that: “the right of local authorities shall be
exercised by councils or assemblies”.

          As we can see, the basic right of local authorities on local self-
government can be realized by elected bodies. This provision, as we thought,
proves that the local authority can’t be neither councils nor assemblies.

          Article 4 (3) of the Charter denotes that: “Public responsibilities shall
generally be exercised, in preference, by those authorities which are closest to
the citizen”.

          If the local authority is neither local bodies nor citizens, what is a local
authority?

          Article 4 (4) of the Charter considers another authority the central
authority, which can’t be group of the people.

          Article 5 of the Charter denotes that: “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”.

          Local authorities have boundaries and should consult with local
communities. This provision is not about local authorities like the group of
people (local communities).

          Article 10 of the Charter identifies the possibility for local auhoroties to
co-operate and establish associations.

          As we can see, the Charter’s provisions can’t give a clear answer about
the meaning of the term “local authority”.




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The author thinks that if we want to understand the essence of the meanings
or terms of any legal document we should analyze the historical processes and
documents about the adopting procedure of the text.



         4. THE HISTORICAL PROCESSES AND THE DOCUMENTS

There are many historical documents which can help us understand the
essence of the Charter and the meaning of its terms.

         Before we start to analyze historical documents, we should remember
that most of the documents of the Council of Europe were done in English and
French (both texts are equally authentic), and that in the Charter the term
“local authorities” has French synonym “collectivités locales”.

         First of all, we should analyze two historical documents which in the
author’s opinion can help us understand the essence of the term “local
authority”.

         These documents were mentioned in the Explanatory Report 9 to the
Charter: Resolution 64 (1968)10 of the European Conference of Local Authorities
and Resolution 126 (1981)11 of the Conference of Local and Regional Authorities
of Europe.

         In Resolution 64 (1968) the Declaration of Principles on Local
Autonomy was adopted which was the historical prototype of the Charter.12 The
principles of this Declaration proclaimed the rights of local communities:

           The Conference,

           Convinced that one of the essential guarantees of the rights and
           freedoms of man lies in a guarantee of the rights and freedoms of
           local communities;




9
   COMM. OF MINISTERS, Explanatory Report to the European Charter of Local Self-Government, E.T.S. No.
122 (1985).
10
   EUR. CONF OF LOCAL AUTHORITIES., Resolution 64 (1968) on a Declaration of Principles of local autonomy,
7th Sess., (1968).
11
   CONF. OF LOCAL AND REGIONAL AUTHORITIES OF EUROPE, Resolution 126 (1981) on the principles of local
self government, 16th Sess., (1981).
12
   These documents have same principles and Ideas.




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            Whereas the extension of the activities and prerogatives of
            individual states and the European Communities or international
            institutions increase the necessity for such a guarantee;

            Whereas an organised Europe must comprise a number of common
            rules legally ensuring local autonomy in the same way as the
            principal human rights are already guaranteed,

            Adopts the following Declaration:.

In Resolution 64 (1968) we can also see that the term “local communities” was
used which has French synonym “collectivités locales”. However, in the Charter
the French term “collectivités locales” has synonym“local authority”.

        Also, parahraph 1 of the Declaration of Principles on Local Autonomy
denotes: “the autonomy of a local community is the right of that community to
manage under its own responsibility its own affairs with a freely elected
Assembly”.

        Considering that the Declaration of Principles on Local Autonomy is a
prototype of the Charter and that the provision under paragraph 1 is so similar
to the provision under Article 3 of the Charter, we can tell that the term “local
community” is historical synonym of the term “local authority”.

        However, in 1981, Resolution 126 was accepted which uses the terms
“local authorities” (which has the French translation “collectivités locales”) and
“local community” (which has the French translation “communauté locale”):
“Whereas, in the conditions of the modern state, the genuine autonomy of
local authorities is an indispensable element of democratic government and
essential to safeguarding the rights and liberties of the citizen in his local
community”.

        As we can see, the different English terms (the term                                    “local
communities” in Resolution 64 (1968) and the term “local authorities” in
Resolution 126 (1981)) have one and only French translation “collectivités
locales”.




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Also, the provisions under Resolution 126 are linked to the Recommendation
61513 which offered a new edition (version) of the Declaration of Principles on
Local Autonomy and has the same provision as Resolution 64: “The autonomy
of the local communities is the right of those communities to manage under
their own responsibility their own affairs through freely elected assemblies”.

         The Declaration of Principles on Local Autonomy which was in
Recommendation 615 uses the term “local community” which is translated
into French with “collectivités locales”.

         Recommendation 615 is linked to another document:

           Recalling its Resolution 410 (1969) approving the principles
           contained in Resolution 64 (1968) adopted by the European
           Conference of Local Authorities, and instructing the Committee on
           Regional Planning and Local Authorities to prepare a joint text
           meeting the considerations both of the Consultative Assembly and of
           the European Conference of Local Authorities.

Resolution 41014 states: “Recalling once again that the political structures of
European civilisation and its fundamental liberties have their deepest and
oldest roots in the autonomy of local communities”.

         It uses the term “local communities” (autonomy of local communities)
with new French synonym “autonomies locales”.

         This is a very interesting fact, because Resolution 410 (1969) is the
middle document between Resolution 64 (1968) and Recommendation 615
(1970), but uses a French word to express the term “local communities”.

         To understand what happened we searched for later documents15 and
found an interesting Report16 of the Mr. Ziyad Ebuzziya17.



13
   EUR. PARL. ASS., Declaration of Principles on Local Autonomy, 19th Sess., Recc. 615 (1970).
14
   EUR. PARL. ASS., Declaration of Principles on Local Autonomy, 7th Sess., R DOC. NO. 2560 (1969).
15
    Resolution 20, available at
http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta52/ERES20.html
Motion for a resolution, available at
http://assembly.coe.int/ASP/Doc/XrefViewPDF.asp?FileID=307&Language=EN
Introducing      Council      of     European       Municipalities    and     Regions,     available at
http://www.ccre.org/en/article/3_2
Report of the Committee on Rules of Procedure, Immunities and Institutional Affairs, available at
http://assembly.coe.int/ASP/Doc/XrefViewPDF.asp?FileID=411&Language=EN
Report of the Committee on Regional Planning and Local Authorities, available at



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We found that there was a problem with the terms in Report’s provision all the
time.

         First, we have analyzed the title of the Report: “Inquiry into the
national or international bodies connected with local government and
examination of the best means whereby these bodies and the local authorities
themselves may help in the propagation of the European idea”.

         After analyzing the French version we saw that the term “local
government” is translated in French with “collectivités locales” and the term
“local authorities’ with “pouvoirs locaux”.

         But the languages discrepancies were not just in these examples.

         In paragraph 1 of the Explanatory Memorandum of the Report the terms
“local authorities” and “municipal units” (in its English version)18 have the
same French synonym “collectivités locales”: “L'Europe en construction ne peut
trouver ses fondements effectifs que dans les éléments sains qu'elle renferme.
Âucun effort profond de renouvellement n'aura lieu qui n'utilisera l'une, de ces
cellules si vivantes que constitue toujours en Europe la collectivité locale et, la
plus vivante des collectivités locales, la commune” (in French version).

         In paragraph 2 of the Explanatory Memorandum, we can see that the
municipal unit and Commune are local authorities, and that the mayors,
deputy mayors, municipal and provincial councillors are local representatives,
not local authority.

         Also, paragraph 3 (of the Explanatory Memorandum) talks about the
powerful support of the local authorities and uses the French equivalent
“pouvoirs locaux”.

         If we are talking about the meaning of the terms then we should
analyze translations and dictionary meanings.

http://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewPDF.asp?FileID=532&lang=en.
16
   EUR. PARL. ASS., Inquiry into the national or international bodies connected with local government and
examination of the best means whereby these bodies and the local authorities themselves may help in the
propagation of the European idea, 5th Sess., DOC. NO. 173 (1953).
17
   The member of the Committee on Regional Planning and Local Authorities of the Parliamentary
Assembly of the Council of Europe.
18
    The new Europe can only be based effectively on the soundest of its existing elements. There
can be no far-reaching renovation without recourse to that most vital and consistent element in
the body social: the local authority, and that most vital of local authorities: the municipal unit or
Commune.



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           5. THE DICTIONARY AND TRANSLATING

The Cambridge Dictionary19 says:

           1) Self-government - the control of a country or an area by the people
living there, or the control of an organization by a group of people independent
of central or local government.

           2) Local government - the control and organization of towns and small
areas, and the services they provide, by people who are elected by those living
in the area.

           3) Local authority - the group of people who govern an area, especially
a city.

           We can draw the conclusion that the term “local authority” probably
means the group of people. Is it a group of people who live in a local area?
Should they be citizens? Can this group of people take part in local elections?

           Also, if we try to translate the term “local authority” into French it will
be “autorité locale”.

           If we try to translate the term “local community” into French it will be
“communauté locale”.

           But if we try to translate French term “collectivité locale” into English
it will be both “local community” and “local authority”.

           According to the Oxford Dictionary,20 local authority means an
administrative body in local government.

           There is no correct answer. The reason for that lies in the different
meanings of the terms and the different ways member States of the Council of
Europe have implemented the Charter.




19
     THE CAMBRIDGE DICTIONARY, https://dictionary.cambridge.org/.
20
     THE OXFORD DICTIONARY, https://en.oxforddictionaries.com/definition/local_authority.




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        6. THE PROVISIONS OF THE EUROPEAN OUTLINE CONVENTION ON TRANSFRONTIER

     CO-OPERATION BETWEEN TERRITORIAL COMMUNITIES OR AUTHORITIES

The author thinks that to understand the term “local authority” we should
analyze the provisions of the European Outline Convention on Transfrontier
Co-operation between Territorial Communities or Authorities 21 (hereinafter the
Convention),      because     the    Convention      promotes       European            co-operation
between local authorities in a number of specifically local fields recognised as
such in national law.

        Article 2 (2) denotes:

          For the purpose of this Convention, the expression “territorial
          communities or authorities” shall mean communities, authorities or
          bodies exercising local and regional functions and regarded as such
          under the domestic law of each State. However, each Contracting
          Party may, at the time of signing this Convention or by subsequent
          notification to the Secretary General of the Council of Europe, name
          the communities, authorities or bodies, subjects and forms to which
          it intends to confine the scope of the Convention or which it intends
          to exclude from its scope.

      The Explanatory Report to the Convention denotes: “This paragraph
specifies the Convention’s scope regarding, first of all, the bodies concerned by
transfrontier co-operation at local and regional level”,22 has an important role
in understanding the provisions of the Convention. Here, the criterion of the
Convention’s applicability is the concept of regional or local function.
“Territorial communities or authorities” was chosen as a term for covering the
various potential cases without having too close a connection with the existing
law of any one member State23.

        The term "territorial" has a geographical connotation, denoting powers
covering a smaller area than those of the State. It should not be interpreted as
referring only to "territorial communities", a precise concept in the law of


21
   Council of Europe, European Outline Convention on Transfrontier Co-operation between
Territorial Communities or Authorities, May 21, 1980, E.T.S. NO. 106.
22
   COMM. OF MINISTERS., Explanatory Report to the European Outline Convention on Transfrontier Co-
operation between Territorial Communities or Authorities, E.T.S. No. 106 (1980).
23
   Article 2 of the Convention.




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some member States which is too narrow for the Convention’s purposes. It is
intended      to    embrace      the    diversity       of   systems     that       characterize             the
administrative organisations at both the local and regional level in the States
concerned.

         However, the general definition adopted for the Convention is subject to
certain limits:

         Paragraph 2 of Article 2 also provides that “a State may define in so far
as it is concerned, either positively (by drawing up a list) or negatively (by
excluding certain bodies or authorities from co-operation), the substance of
the concept of territorial authority or community. It is thus always possible for
a State to specify, for example, which of its regions fall within the
Convention’s scope and which ones are excluded there from”.

         As we can see, the Convention gives large possibilities for member
States of the Council of Europe to give different meanings to the terms
“territorial communities” or “territorial authorities”.

         Also, the terms “territorial communities” or “territorial authorities”
and “local authority”, in the author’ opinion, are the same.

         Such opinion is proved by Recommendation 470 (1966)24 which includes
Draft Convention on European co-operation between local authorities and has
provision: “Considering that co-operation between local authorities of
different European countries is desirable and has indeed become a necessity in
certain frontier zones”.

         The       above   provisions,      in   the     author’s     opinion,         give       us     some
understanding that in different States and different legislations, including
differences in language, we could use the terms in different ways and with
different understandings.

         We will now analyze the legislation of the member States of the Council
of Europe and the meanings which these States give to the term “local
authority”.


24
  EUR. PARL. ASS., Draft Convention on European co-operation between local authorities, 15th Sess., DOC.
NO. 2109 (1966).




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        7. INFORMATION ABOUT RESERVATIONS AND DECLARATIONS AND DOMESTIC

     LEGISLATION OF MEMBER STATES OF THE COUNCIL OF EUROPE

Article 16 (1) of the Charter declares that: “Any State may, at the time of
signature or when depositing its instrument of ratification, acceptance,
approval or accession, specify the territory or territories to which this Charter
shall apply”.

        If we analyze the information about the reservations and declarations25
for the Charter from member States of the Council of Europe and if we analyze
the implementation processes and domestic legislation of the different
countries, we will discover many interesting details. In the author’s opinion,
countries have different understanding of the terms and principles of the
Charter26.

        We     will   now     analyze     the    information      about        the      reservations,
declarations and domestic legislation of different member States of the Council
of Europe.

        Ukraine ratified the Charter without any reservation. There is no
information about declarations, denunciations, derogations from Ukraine on
the official website of the Council of Europe.

        The Ukrainian Parliament ratified the Charter in 1997.

        However, Ukraine has a problem with the translation of the term “local
authority” and its meaning in domestic legislation.

        aa




25
   Council of Europe, European Charter of Local Self-Government, Oct. 15, 1985, E.T.S. NO. 122.
26
   Sergiy Panasyuk, Aktual’ni problemy tlumachennya terminu «implementatsiya» v konteksti
yakisnoho vprovadzennya pryntsypiv Evropeĭs’koyi khartiyi mistsevoho samovryaduvannya v
zakonodavstvo Ukrayiny [Actual Problems of Understanding of the term “Implementation” in the
context of correct realization of the principles of the European Charter of Local Self-Government
in the Ukrainian Legislation], Naukovyĭ visnyk Akademiï munitsypal’noho upravlinnya [2 Vol. J.
Acad. Mun. Mgmt],192, 192-198 (2012). Sergiy Panasyuk, Zakhyst terytorial’nykh kordoniv
mistsevykh spivtovarystv: realii ta perspektyvy implementatsii pryntsypu Evropeyskoyi khartii
mistsevoho samovryaduvannya v zakonodavstvo Ukrayiny [Protection of territorial boundaries of
local communities: realities and prospects of implementation of the principle of the European
Charter of local self-government in the legislation of Ukraine], Derzhava i pravo: Zbirnyk
naukovyx prats’. yurydychni i politychni nauky, [St. and L.: Collection Sci. Works. Legal and Pol.
Sci], no. 62, 2013, at 459-466.



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In the official Ukrainian translation27 of the Charter the term “local authority”
means “organs of local self-government” (local self-government bodies).

        However, if we analyze the Act of Local Self-Government in Ukraine                             28
                                                                                                         ,
we will not find what “organs of local self-government” (local self-
government bodies) means.

        The term “local authority” does not have detailing in the Ukrainian
legislation.

        On the other hand, in the Act of Local Self-Government in Ukraine29, for
example, we can find that local councils are representative organs of local self-
government (local self-government bodies). This is confirmed in Article 140 of
The Constitution of Ukraine30.

        This brings us to a question: does the term ‘local authority’ mean the
organ of local self-government (body of local self-government) or local
council?

        The answer is neither.

        According to Article 2 of the Act of Local Self-Government in Ukraine
and Article 140 of The Constitution of Ukraine the local self-government is the
right of the territorial community (citizens of local area).

        If we compare Article 3(1) of the Charter with Article 140 (1) of The
Constitution of Ukraine, we can draw the conclusion that local self-
government relates to the right and the ability of local authorities (which are
called in Ukraine “territorial communities”).

        Furthermore, according to Article 140 of The Constitution of Ukraine the
territorial community creates the organs of local self-government (local self-
government body). Such “organs of local self-government” were translated
into “local authority” in the Ukrainian text of the Charter.




27
   Yevropeys’ka khartiya mistsevoho samovryaduvannya [European Charter of Local Self-
Government].
28
   Local Self-Government in Ukraine, 1997, No. 280/97-ВР, Acts of Parliament, 1997 (Ukraine).
29
   Id.
30
   CONSTITUTION OF UKRAINE, 1996, No. 254к/96-ВР, Acts of Parliament, 1996 (Ukraine).




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The problems with translating the term “local authority” were denoted in the
Report on Compliance of the Ukrainian Legislation with the Principles of the
European Charter for Local Self-Government31:

           Comparison of the various linguistic versions of the Charter may
           create some difficulties for the interpretation of the Charter. For
           example, where the English version refers to “local authorities”, the
           French version refers to “collectivités locales”; in the French legal
           language, “authority” is usually linked with administration, rather
           than with local government (with its political meaning). Where the
           English version refers to “powers and responsibilities”, the French
           version uses the word “competence”. To describe the matter of the
           activity of local government, the English law makes use of the words
           “function”, “powers” and “duties”. Local self-government, as the
           basic concept of the Charter is translated in the French version as
           “autonomie locale”, whereas French law considers this expression as
           equivalent to the constitutional concept of “libre administration des
           collectivités   locales”,   currently    used   in   the     decisions       of     the
           Constitutional Council. In French legislation, there is no difficulty
           with the expression “territorial community”; it is reflected in the
           Charter by the expression “collectivité locale”, as the subject of the
           self-government rights. This is even more so in Sweden, where the
           Constitution states that the citizens exercise their sovereignty rights
           also at the municipal level when they form the local government
           bodies (chapter 1, article 1). On the contrary, in English law, the
           councils, not the community, are legal subjects of self-government
           rights, because they are conferred upon them by parliament. A
           similar position, although with differences, is followed in Russia and
           in Ukraine, where not only the councils, but also all local
           government bodies, including the administration (in the Russian law
           of 2003) are legal subjects.




31
  DIRECTORATE GENERAL OF DEMOCRACY AND POLITICAL AFFAIRS, Report on Compliance of the Ukrainian
Legislation with the Principles of the European Charter for Local Self-Government, DPA/PAD 1/2010 (July
30, 2010) available at http://www.slg-coe.org.ua/wp-content/uploads/2012/11/CoE-Report-on-
Compliance-of-the-Ukrainian-Legislation-with-the-Principles-of-the-European-Charter-for-
Local-Self-Government_2010.pdf



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The other example is Montenegro. Article 1 of the Law on Local Self-
Government of the Republic of Montenegro32 states that: “Local self-
government includes the right of citizens and local self-government bodies to
regulate and administrate, within the limits of the law, certain public and
other affairs based on their own responsibility and in the interest of the local
population”.

        Then, the term “local authority” in Montenegro means both “citizens”
and “local self-government bodies”.

        If we analyze the information about reservations and declarations for
the Charter of the French Republic we will discover some interesting details:
“The French Republic considers that the provisions of Article 3, paragraph 2,
must be interpreted as giving to the States the possibility to make the
executive organ answerable to the deliberative organ of a territorial authority”.

        The Constitution of the French Republic distinguishes three subjects
“executive organ”, “deliberative organ” and “territorial authority”.

        Article 72 (1) of the Constitution of the French Republic says that: “The
territorial communities of the Republic                   shall be the Communes, the
Departments, the Regions, the Special-Status communities and the Overseas
Territorial communities”.

        The    French     version    of   the      term    “territorial      communities”                is
“collectivités territoriales”.

        Also, Article 72 (2) of the Constitution of the French Republic affirms:
“In the conditions provided for by statute, these communities shall be self-
governing through elected councils and shall have power to make regulations
for matters coming within their jurisdiction”.

        Then, we can draw the conclusion that territorial communities are not
elected councils.




32
  Law on local self-government, Official Gazette of Montenegro, No. 42/2003, 28/2004, 75/2005,
13/2006 and Official Gazette of Montenegro, No. 88/2009 and 3/2010.



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If we translate the terms “collectivités territoriales” and “collectivités locales”
we will have one translation “local authorities”.

        If we analyze the information about reservations and declarations for
the Charter of Ireland33, we can see that Ireland intends to confine the scope of
the Charter to the following categories of authorities: county councils, city
councils, town councils. So, in Ireland the term “local authority” means
councils.

        It is proven by Local Government Act (2001) 34 which denotes that “local
authority” means: a county council, a city council, a town council.

        The United Kingdom in its information about reservations and
declarations35 for the Charter denotes that it intends to confine the scope of the
Charter to the following categories of authority:

        For England – county councils, district councils, London borough
councils and the Council of the Isles of Scilly.

        For Wales – all councils were constituted under Section 2 of the Local
Government (Wales) Act in 1994.

        For Scotland – all councils were constituted under Section 2 of the Local
Government (Scotland) Act in 1994.

        The term “local authority” in the United Kingdom means also a council.

        In Switzerland, as we can see from its information about reservations
and declarations for the Charter, the term “local authority” means local
bodies: “the Charter shall apply in Switzerland to the political communes
(“Einwohnergemeinde”/comuni politici)”.




33
   Reservations and Declarations for Treaty No.122 - European Charter of Local Self-Government,
available at https://www.coe.int/en/web/conventions/full-list/-/
conventions/treaty/122/declarations?p_auth=VD1z2dZK.
34
   Local Government Act of Ireland, No. 37, (2001).
35
   Reservations and Declarations for Treaty No.122, supra note 34. Reservations and Declarations
for Treaty No.122, supra note 34.




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           8. CONCLUSIONS

There are many questions about the meanings of the terms and about the
implementation of the Charter.

           The reasons are attributed to the countries’ different cultures, different
histories and different meanings of the loca democracies 36.

           Then, there is no correct answer about the meaning of the term “local
authority” and the main question is: should there be one?

           One of the aims of the Charter was to draft a single document which
included principles of local democracy.

           The Charter tried to consolidate all European countries and to create
European standards of local self-government. An effort that ended in a
success.

           However, the Charter is not an order, it just tries to connect different
countries and to spread the “European idea” of good local self-government.

           There is no ideal version of local democracy or ideal definition of the
term “local authority”.

           Maybe now experts should limit themselves to making corrections
about inconsistencies or contradictions with one aim in mind: “to create the
best local democracy system and to provide the best quality of life in the local
area”. It is not about the meaning of some term or its translation, it is about
good local government across Europe and all over the world.




36
     The member states of the Council of Europe, which have signed the Charter.




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