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JURIDICA INTERNATIONAL. LAW REVIEW.
UNIVERSITY OF TARTU (1632)

About Two Relations between European Union and Local Authorities – Citizenship of EU and Committee of Regions

Vallo Olle
pp. 48-52

At the outset, it should be noted that relations between the European Union and local authorities are very complex and much of the ambiguity can be attributed to the application of European Community law. An example can be seen in the situation whereby assistance originating from a local authority may be deemed prohibited public aid. The European Court of Justice has recognised local authorities as an “emanation of the state”. As nationals may bring the activities of a local authority in implementing European Community law to a court, analysts have expressed the view that this reality makes local authorities extremely vulnerable to informed public interest groups, aware of their right to seek direct enforcement of unimplemented directives, and willing to exercise this right [2, pp. 3-4]. The integration of acquis communautaire is a precondition of Estonia’s accession to the European Union. European Community law is undoubtedly an expression of the closely integrated nature of European countries’ legal systems. At the same time, Community law does not aim to unify the power structures of the Member States within the European Union. Our public, the press included, has quite ignored the fact that regions and local authorities play an important role in the European Union.*1 Concerned citizens should however be aware that the need to apply and consider the Community law in their activities is not limited just to the legislator and central administrative bodies of a state. In this connection, the following diagram could be used in respect of administrative bodies:

This article, however, will not focus on the problems encountered by local authorities in applying EC law but rather contemplates briefly two connections that exist between the European Union and local governments – the citizenship of the European Union and the Committee of the Regions. These are the factors bound to have an effect on Estonia’s situation upon our accession to the European Union.

Citizenship of European Union

In the literature on problems of citizenship it has been said that nationals of the Member States of the European Union find themselves increasingly more “subject to two spheres of rights and duties: the national and the Community” [4, p 24]. Estonia is one of the countries in Europe where aliens have been granted the right to vote at local elections. Under the 2nd paragraph of § 156 of the Constitution of the Republic of Estonia, in elections to local government councils, persons who reside permanently in the territory of the local government and have attained eighteen years of age have the right to vote, under conditions prescribed by law [14]. The units of local government are rural municipalities and towns (1st paragraph of § 155) and the representative body of a local government is the council which is elected for a term of three years (1st paragraph of § 156).

Under §§3(1)-(3) of the Local Government Council Election Act*2 an Estonian citizen who has attained eighteen years of age by election day, resides permanently in the territory of the local government and is entered in the Estonian National Electoral Register of Citizens in the rural municipality or city has the right to vote. An alien legally residing in Estonia who has attained eighteen years of age by election day, has resided permanently in the territory of the corresponding local government for at least five years by 1 January of the election year and is entered in the Estonian National Electoral Register of Aliens in the rural municipality or city also has the right to vote. An alien residing permanently in the territory of the local government is a person who is in Estonia on the basis of a residence permit and resides in the territory of the local government for at least 183 days annually, whereas his or her absence therefrom does not exceed ninety consecutive days. Every Estonian citizen with the right to vote who has attained eighteen years of age, resides permanently in the territory of the local government on 1 June of the election year at the latest, is entered in the Estonian National Electoral Register of Citizens in the rural municipality or city, has taken the oath pursuant to procedure prescribed by law and is proficient in Estonian pursuant to the level provided for in the Language Act (RT I 1995, 23, 334) may run as a candidate for membership of the local government council*3 [15].

Under the Treaty of Maastricht (1992), articles concerning citizenship of the Union were inserted to the Treaty on the European Community (Part 2 – Citizenship of the Union, Articles 8-8e).*4 Pursuant to the 1st paragraph of Article 8, every person holding the nationality of a Member State is a citizen of the Union [6, p. 75]. The Treaty of Amsterdam supplements this article with the principle that citizenship of the Union shall complement, and not replace, national citizenship [17, art. 2]. Article 8b(1) of the Treaty of the European Community states: “Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that state. This right shall be exercised subject to detailed arrangements to be adopted before 31 December 1994 by the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.” [6, p. 75].

Council Directive 94/80/EC of 19 December 1994 [18] (amended by Council Directive 96/30/EC of 13 May 1996 [19])*5 laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals. Its content is as follows:

1. The above-mentioned Directives lay down detailed arrangements enabling citizens of the Union who reside in a Member State of which they are not nationals to exercise the right to vote and stand as a candidate in municipal elections there.

2. Their purpose is not to harmonise Member States’ electoral systems; instead, they set out to ensure that Community nationals can exercise their right to vote and to stand as a candidate under the same conditions as those applying to nationals. In other words, they are essentially designed to abolish the nationality requirement which currently applies in most Member States. They do not affect rules in any Member State governing the rights of its own nationals or of resident non-Community nationals.

3. “Municipal elections” means all elections by direct universal suffrage for the authorities governing basic local government units. These are indicated, for each Member State, in the annex to the Directive. The Member States may reserve the office of elected head, deputy or member of the governing college of the executive for its own nationals if these persons are elected to hold office for the duration of their mandate, while ensuring that any measures adopted in this area are appropriate, necessary and proportionate. The Member States may also provide that citizens of the Union who are elected members of a representative council may not take part in designating delegates who can vote in a parliamentary assembly or in electing the members of that assembly.

4. The Directives define the qualifications required in order to be entitled to vote and to stand as a candidate in the Member State of residence:

  • one must be a Union citizen (have the nationality of a Member State);
  • one must reside in the Member State in which one proposes to exercise one’s rights;
  • one must comply with the rules governing the right of nationals of the country of residence to vote and to stand as a candidate (i. e. the principles of equality and non-discrimination between domestic and Community voters and candidates).

    5. Citizens of the Union residing in a Member State of which they are not nationals who wish to take part in municipal elections must apply to be entered on the electoral roll. The Member State must take the necessary measures to enable them to be entered on the electoral roll in due time before polling day. Community voters must provide the same supporting documents as national voters.

    6. There is no prohibition to prevent a person voting or standing as a candidate both in his Member State of residence and in his home Member State. Member States may provide that the holding of an elected municipal office in the Member State of residence is incompatible with the holding of similar offices in other Member States.

    7. Freedom of choice as regards place of voting: Union citizens meeting these conditions may vote in municipal elections in their Member State of residence if they have expressed the wish to do so. In places where voting is compulsory, a voter who has been entered on the electoral roll in this way will be obliged to vote.

    8. Disqualification:

  • where there are different rules on disqualification in the home Member State and the Member State of residence, the Member State may choose to apply whichever set of rules is the stricter;
  • in that event, the Member State of residence may require a person applying to stand as a candidate to produce an attestation from the competent administrative authorities in the home Member State certifying that he has not been deprived of the right to stand as a candidate in that country or that no such disqualification is known to those authorities.

    9. here are derogations and transitional provisions:

  • for any Member State where the proportion of Union citizens of voting age who reside there but are not its own nationals exceeds 20% of the total electorate; such a State may require a minimum period of residence;
  • for Union citizens who already have the right to vote in elections to the national parliament of their Member State of residence.

    10. Citizens of the Union who on 1 January 1996 already have the right to vote in municipal elections in their Member State of residence and whose names appear on an electoral roll in that State are not subject to the formalities laid down in the present Directives at the first municipal elections after the Directive first applies.

    11. These derogations are to be reviewed at regular intervals on the basis of a Commission report [8].

    Insofar as the previously mentioned Directives do not affect domestic legal provisions which regulate the election rights of a person, residing in a Member State but not holding the nationality of any of the Member States, at municipal elections, and taking into account the fact that Russia’s accession is not topical in the near future, the granting of the passive right to vote at municipal elections to the most numerous group of foreign citizens – citizens of Russia – and to persons without citizenship*6 will not be mandatory per se for Estonia’s accession to the European Union. The Local Government Council Election Act, however, must be amended as the current version awards the passive right to vote at local elections only to the nationals of Estonia.

    Committee of Regions

    The Committee of the Regions embodies the principle of subsidiarity pursuant to which the decisions should be taken “as closely as possible to the citizen” (Art. A(2) TEU) [6, p. 15].

    The Committee of the Regions (hereinafter COR) was formed under the Treaty of Maastricht (Articles 198a-198c of the Treaty of European Union) and started its activities in 1994. Under the Treaty, it is a committee composed of representatives of regional and local authorities, with advisory status. COR was formed as a response to the demands of several Member States (primarily Germany and Spain) that regional and local authorities should be directly involved in discussions held at Community level. This was due to the presence in several states of a legislative structure containing several spheres of influence. Denmark serves as an example. Danish communes (local governments) are responsible for primary schools, adolescents interest schools and education of adults. Communes maintain public libraries and have responsibilities in other spheres of culture. They support cultural and sports organisations, build and maintain stadiums and sports centres. Communes also create and expand the local infrastructure, take care of gas, power, water and heating supplies, are active in the social arena, impose taxes, etc. On a shared cost basis, Danish communes and counties are accountable for 46.6% and 12.5% respectively of public duties [13, pp. 17-18]. Under §§ (1) and (2) of the Estonian Local Government Organisation Act, the functions of a local government include the organisation, in the rural municipality or city, of social assistance and services, welfare services for the elderly, housing and utilities, the supply of water and sewerage, the provision of public services and amenities, physical planning, public transportation within the rural municipality or city, and the maintenance of rural municipality roads and city streets unless such functions are assigned by law to other persons. The functions of a local government include the provision and maintenance of pre-school child care institutions, basic schools, secondary schools, extra-curriculum education, libraries, community centres, museums, sports facilities, shelters, care homes, health care institutions and other local agencies if such agencies are in the ownership of the local government. Payment of specified expenses of such agencies from the state budget or law may prescribe other sources [16].

    In addition to those functions, local governments address local issues assigned to them by other Acts or not assigned by law to other persons for resolution. Local governments also fulfil state functions which are assigned to them by law; which arise from a contract between an authorised state body and a specific council [ 16, §§ 6(3) and (4)].

    The Committee of the Regions consists of 222 standing members and an equal number of alternate members. A majority of them are directly elected regional or local politicians. Their composition by country is the same ration as in the Economic and Social Committee. The members of the Committee and alternate members are appointed for four years by the Council acting unanimously on proposals from the respective Member States.

    Their term of office is renewable. As the elected representatives or chief officers of local, district and regional authorities, the members of the COR fulfil a two-fold function on behalf of the EU’s citizens – on the one hand, by defending their immediate interests in the EU policy-making process and, on the other, by keeping them regularly posted on all EU legislation.

    The COR is an independent body and its members may not be bound by any mandatory instructions. They are completely independent in the performance of their duties, in the general interest of the Community.

    The Committee of the Regions elects its president, First Vice-President and Bureau from among its members for a term of two years. It adopts its rules of procedure and submits them for approval to the Council, acting unanimously. The Committee is convened by its president at the request of the Council or of the Commission. It may also meet on its own initiative. The Committee holds five plenary sessions per year [7]. The Committee of the Regions is consulted by the Council or by the Commission where the EU Treaty so provides and in all other cases in which one of these two institutions considers it appropriate (e.g. the right of EU nationals to vote at municipal elections in the Member State in which they reside). The COR must be consulted in the following spheres:

  • Education and youth (Title VII, Chapter 3, Article 126)
  • Culture (Title IX, Article 128)
  • Public health (Title X, Article 129)
  • Trans-European networks in the areas of transport, telecommunications and energy infrastructures (Title XII, Article 129d)
  • Economic and social cohesion (Title XIV, Article 130b: progress report; Article 130d: Structural Funds, and Article 130e: European Regional Development Fund).

    The Council or the Commission, if it considers it necessary, sets the Committee, for the submission of its opinion, a time-limit which may not be less than one month from the date on which the president receives notification to this effect. Upon expiry of the time-limit, the absence of an opinion does not prevent further action.

    Where the Economic and Social Committee is consulted pursuant to Article 198, the Committee of the Regions is informed by the Council or the Commission of the request for an opinion. Where it considers that specific regions’ interests are involved, the Committee of the Regions may issue an opinion on that matter. It may take the initiative of issuing an opinion in cases in which it considers such action appropriate. The opinion of the Committee, together with a record of the proceedings, is forwarded to the Council and to the Commission [6, pp. 236-237]. During its first two years of work, the Committee of Regions adopted 74 Opinions: 65 main Opinions and 9 Supplementary Opinions. Among the 65 main Opinions, 35 were adopted following referrals from the Commission or the Council, and 30 using the Committee’s own power of initiative [12].

    The Treaty of Amsterdam expresses the expansion of the consultative remit of the COR and strengthening of political legitimacy. Under it, the European Parliament may consult the Committee. The COR obtained the right to be autonomous, independent of the Economic and Social Commission. The COR must be consulted in new fields (employment, social matters, public health, environment, Social Fund, vocational training and transport) [11, p. 23]. COR President Pasqual Maragall said, after the Amsterdam European Council, that the European Council has sanctioned the growing recognition of the role and influence of the regions and cities in the construction of the new Europe [1].

    However, not all the desires of the COR were met by the Treaty of Amsterdam. The COR failed to achieve the right to initiate a court proceeding in the European Court of Justice for itself or by legally capacitated regions.*7 The European Commission did not support this proposal. The Treaty also does not recognise the Committee as an institution in which rights are vested and it does not expressly speak about cities or regions. Kurt Gaissert, secretary of the Committee of Institutional Matters of the Committee of the Regions has said that they wanted to be an institution under the first paragraph of Article 4 of the Treaty which meant becoming a member of the club. He added that they were mentioned in the second paragraph as a consultative body only [5, p. 9].

    The COR has won recognition for, amongst other things, the summit meeting in Amsterdam and the presentation of Agenda 2000. It plans to play a decisive role in any proposal presented to the European Commission or the Council of EU in respect of expansion. The Committee believes that in case of successful cross-border co-operation, the process must be directed from bottom to top. The co-operation between Århus, Denmark, Kiel, Germany, and Tallinn, Estonia to save energy in schools is an example of cross-border co-operation project [5, p. 9].

    Estonian local governments face expansive work in applying European Community law in the future. The Committee of the Regions is an output for influencing the drafting of EU law.

    REFERENCES:

    1. After the Amsterdam European Council: A Growing Awareness of the Role of the Committee of the Regions. Available:
    http://europa.eu.int/comreg/pr/97182en.html,25 July 1998
    2. Bogdanor, V. Local Democracy and the European Community – Challenge and Opportunity. – The Belgrave Papers No 6, 1992.
    3. Commission Opinion on Estonia’s Application for Membership of the European Union. Brussels, 15.07.1997 COM (97) 2006 final. - Office for Official Publications of the European Communities, L-2985 Luxembourg, 123 p.
    4. Cram, L., Richardson, J. Citizenship and Local Democracy: A European Perspective. – Luton: The Local Government Management Board, 1993, 43 p.
    5. Dillon, S. Piirkondade roll Euroopa asjades suureneb.- Euroopa Dialoog (The Role of Regions in European Matters Increases. – European Dialogue), 1997, No. 6, pp. 8-9.
    6. Euroopa Liit. Lepinguraamat: Euroopa Liidu leping. Euroopa Ühenduse asutamisleping. Liitumisleping. Ühtse Euroopa akt.- (The European Union. The Book of Treaties. The Treaty of the European Union. The Treaty Establishing the European Community. Accession Agreement. Single European Act) Eesti Õigustõlke Keskus (Estonian Translation and Legislative Support Centre), 1997, 446 p.
    7. Five Questions and Answers Concerning the Committee of Regions.
    Available:
    http://europa.eu.int/comreg/5qa.html,12 March 1998
    8. Free Movement of Labour and the Professions. Municipal Elections: Exercise by Citizens of the European Union of the Rights to Vote and to Stand as a Candidate. Available: http:/
    /europa.eu.int/comm/sg/scadplus/leg/en/lvb/123026.htm,
    28 July 1998
    9. Opinion of the Committee of the Regions on the Revision of the Treaty on European Union. Available: http:/
    /europa.eu.int/en/agenda/igc-home/eu-doc/regions/crf_en.html,
    25 July 1998
    10. The speech of Prime Minister Mart Siimann at the conference Eurointegration at the Baltic Region – a Challenge to Local Governments. Available in the Internet:
    http://www.rk.ee pm.baltlinn.html,25 July 1998.
    11. Questions and Answers on the Treaty of Amsterdam: Information Programme for the European Citizen. - European Commission Directorate – General X Priority information projects, 1997, 26 p.
    12. The Committee of Regions’ Contribution to European Integration: Impact of Opinions/New Ways Forward, by Jacques Blanc, President of the Committee of Regions. Available:
    http://europa.eu.int/comreg/infoen.html,25 July, 1998-07-29
    13. Ülevaade Taani kohalikust omavalitsusest: Taani-Eesti ühisseminar 8.-10. jaanuar 1992 (Overview About Danish Local Authorities: Danish-Estonian joint seminar 8-10 January 1992). – Toim Kaldmäe, M. (Editor M. Kaldmäe), Tallinn: Riigikantselei Koolituskeskus, 1992, 198 p.

    REFERENCES TO LEGISLATION:

    14. Eesti Vabariigi põhiseadus (Constitution of the Republic of Estonia), 28 June 1992. – RT 1992, 26, 349.
    15. Kohaliku omavalitsuse volikogu valimise seadus (Local Government Council Election Act), 16 May 1996. – RT I 1996, 37, 739; 38, õiend; 76, 1343; 1998, 28, 356; 57, 864.
    16. Kohaliku omavalitsuse korralduse seadus (Local Government Organisation Act), 2 June 1993. – RT I 1993, 37, 558; 1994, 12, 200; 19, 340; 72, 1263; 84, 1475; 1995, 16, 228; 17, 237; 23, 334; 26-28, 355; 59, 1006; 97, 1664; 1996, 36, 738; 37, 739; 40, 773; 48, 942; 89, 1591; 1997, 13, 210; 29, 449 and 450; 69, 113; 1998, 28, 356; 59, 941; 61, 984.
    17. Treaty of Amsterdam amending the Treaty on European Union, the Treaties Establishing the European Communities and certain related Acts. Available:
    http://ue.eu.int/Amsterdam/en/amsteroc/en/treaty/Partone/amst09.htm, 28 July 1998.
    18. Council Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals.- Official Journal NO. L368, 31/12/1994 P. 0038-0047.
    19. Council Directive 96/30/EC of 13 May 1996 amending Directive 94/80/EC laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals. – Official journal NO. L122, 22705/1996 P.0014-0014.

    REFERENCES TO COURT CASES:

    20. 3-4-1-1-98 Review of the request of the President of the Republic of 30 December 1997 declaring the Act Amending and Complementing the Language Act and State Fees Act contradictory to the Constitution by the Constitutional Review Chamber of the Supreme Court dating from 5 February 1998. – RT I 1998, 14, 230.

    Notes:

    *1 Prime Minister Mart Siimann said in his speech at the conference Eurointegration at the Baltic Region – a Challenge to Local Governments (17 November 1997): “Contemplating on subjects connected with Eurointegration and viewing Estonia as a future members state of the European Union, co-operation between cities and regions, being one of the pillars of European co-operation, is often overlooked.” [10]
    *2 Local Government Council Election Act is a constitutional act (§ 104(2)) of the Constitution), which may be passed and amended only by a majority of the membership of the Riigikogu.
    *3 Constitutional Review Chamber of the Supreme Court remarked in its decision that under the 4thparagraph of §104(2) of the Constitution, the Local Government Council Election Act was also a constitutional act.
    The regulation of relations in common, if such relations are subject to regulation by constitutional laws, is anti-constitutional. Constitutional laws must not contain reference norms in respect of common acts or delegation norms concerning the granting of a general deed of executive power, which by their nature are subject to regulation by constitutional laws. Consequently, the requirement concerning the level of knowledge of language is possible only by the Local Government Council Election Act [20].
    *4 Upon entry into force of the Treaty of Amsterdam, the articles shall be respectively renumbered as 17–22.
    *5 The said Directives entered into force respectively on 20 January 1995 and 22 May 1996.
    *6 Commission Opinion on Estonia’s Application for Membership of the European Union gives the following data: “Around 35% of the population of Estonia consists of minorities, including non-citizens, made up of 28% Russians, 2.7% Ukrainians and 1.5% Belorussians. The minorities live mainly in Tallinn and the north-eastern quarter of the country (Narva-Sillamäe region), where they may account for up to 95% of the total population (Narva). Of that 35%, a group of 23% (numbering around 335,000, mainly of Russian origin) are not Estonian citizens, 8% having chosen Russian nationality and 13% former Soviet citizens now without any nationality. [Commission Opinion on Estonia’s Application for Membership of the European Union.- Brussels, 15.07.1997 COM(97) 2006 final. Office for Official Publications of the European Communities, L-2985 Luxembourg, 123 p. p. 13.]
    *7 See Opinion of the Committee of the Regions on the Revision of the Treaty on European Union [9].






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