This report follows the third monitoring visit, carried out remotely, in Spain since the country ratified the European Charter of Local Self-Government in 1988.
The report notes that Spain is generally fulfilling its obligations with regards to the Charter and municipalities are at the core of Spanish democracy. The Charter is incorporated under Spain’s national law, enabling legal interpretation by the domestic courts. Moreover, local authorities can directly challenge laws or regulations passed by State and autonomous communities that adversely affect the constitutionally guaranteed local autonomy.
Nevertheless, the division of responsibilities between levels of government has not been clarified, and the general competence clause of municipalities has been narrowed to limited matters and subjected to several conditions. Also, the report notes the persistence of the transfer of powers to municipalities without adequate financial resources. Furthermore, the difficulties of management of small municipalities and the insufficient financial equalisation procedures or equivalent measures to correct the effects of the unequal distribution of financial resources between smaller and larger municipalities have not been solved.
Therefore, it is recommended that the Spanish government grant full discretion to local authorities to exercise their initiative in any matter which is not excluded from their competence nor assigned to any other authority. National authorities are invited to clarify the division of responsibilities among levels of government, whilst providing an appropriate legal framework and institutional settings for consultation of local authorities. The recommendation also invites Spanish authorities to ensure that each transfer of powers to local authorities is accompanied by adequate financial resources along with greater management support for smaller municipalities. Finally, the government is encouraged to sign and ratify the Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority.
The principle of local self government shall be recognised in domestic legislation, and where practicable in the constitution.
The Spanish Constitution of 1978 explicitly recognises local self-government (autonomía local) but does not provide a definition of it. Article 137 identifies the basic local government units that are present in the country (municipalities, provinces and eventually Autonomous Communities) and recognises them as constituent parts of the State. It also establishes that all those entities “shall enjoy self-government for the management of their respective interests”. Article140 lays down the constitutional principles for the municipalities and Article 141 for provinces. Finally, local finances are dealt with by Article 142.
However, since its earlier decisions, the Constitutional Court developed the principle of “institutional guarantee of local self-government”, considering that local autonomy is a general principle of the territorial organisation of the State. This implies, among other elements, the right of the local government units to participate in the governance and decision making on matters that affect the local citizens. The organs of the said units must have powers and competences. On the contrary, the legislator (either national or regional) cannot minimise or reduce this autonomous domain of decision making below a recognisable level. As the same Constitutional Court recognised, “This notion is very similar to the one that was later embraced by the 1985 European Charter of Local Autonomy (ratified by Spain in 1988), whose art. 3 ('Concept of local autonomy') establishes that 'by local autonomy is understood the right and effective capacity of local entities to order and manage an important part of public affairs, within the framework of the law, under their own responsibility and for the benefit of its inhabitants".
This principle has to be respected by all the legislators, national and regionals. It is the standard the Constitutional Court applies to review the legislation, including the national legislation setting the basic principles of local self-government, “as the recipients of art. 137 CE are all public powers, and more specifically all legislators”.
Nevertheless, in the recent years, especially after the enactment of the LRSAL, scholars questioned the doctrine of the “institutional guarantee”, considering that it is insufficient to avoid the re-centralisation of competence and, in general, a regression in the level of local self-government.
However, in the light of the respect of Article 2 of the Charter, we should consider that, in addition to this constitutional framework, there is extensive and systematic legislation, recognising and regulating different aspects of local government, that has often been inspired by Charter.
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, Spanish municipalities and provinces 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 such concepts as “ability”, “a substantial share of public affairs”, “under their own responsibility” and “in the interests of the local population” since no official or universal method of measuring such substantial character has yet been developed. The question must be addressed considering the historical evolution, the culture and the constitutional traditions of the country under analysis. It is also closely linked to the assessment of the compliance with other parts of the Charter, such as Articles 4, 8 and 9.
In order to assess compliance with this provision, both legislative and factual aspects should be taken into consideration.
The Spanish government system is one of the most decentralised in Europe: all together the regions and local authorities manage more than half of the public expenditures in the country.
The local autonomy is recognized in arts. 137 and 140 of the Constitution. As stated by the Constitutional Court, «it is configured as an institutional guarantee with a minimum content that the legislator must respect and that is specified, basically, in the 'right of the local community to participate through its own organs in government and administration of all matters that concern it, graduating the intensity of this participation according to the existing relationship between local and supralocal interests within such matters or matters. For the exercise of this participation in the government and administration insofar as it concerns them, the representative bodies of the local community must be endowed with the powers without which no regional action is possible' (STC 32/1981, FJ 4)» ( STC 40/1998, of February 19, FJ 39).
Municipalities (as well as provinces and islands), enjoy several powers and prerogatives which are usual for public, governmental bodies:
As stated by the Constitutional Court in STC 159/2001 of July 5, FJ 5 (reiterated in STC 240/2006), the notion of local autonomy accepted in Spain “is very similar to the one that was later accepted by the European Charter of Local Autonomy of 1985 (ratified by Spain in 1988), whose art. 3 ("Concept of local autonomy") establishes that ‘local autonomy means the right and effective capacity of local entities to order and manage an important part of public affairs, within the framework of the law, under their own authority. responsibility and for the benefit of its inhabitants’”.
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.
Article 3.2 is the main statement of the democratic principle in the provisions of the Charter. The right of self-government must be exercised by democratically constituted authorities. Spain did not ratify article 3, paragraph 2. However, this paragraph is mentioned it in the preamble of the Law n° 57/2003, concerning the relationship between elected councils and executive bodies in bigger municipalities, and by several decisions of the Constitutional Court.
The central role played by the elected assemblies is evident in municipalities. Especially relevant is the decision STC 111/2016, which declared unconstitutional the provision of the LRSAL attributing, in exceptional circumstances, to the executive body the power to approve the budget. According to the Court, “the will of the local community is fulfilled through the attribution of competencies and sufficient participation to local entities”. Autonomy and democracy are, therefore, inextricably linked, as specifically provided for in the preamble to the European Charter of Local Autonomy, to which the Constitutional Court explicitly alludes.
Although provincial councils are not directly elected in Spain (as in other European countries) there are not impediments for Spain to formally accept Article 3.2 for municipalities and islands (since, at present, the island councils are directly elected both in the Balearic and Canary Islands).
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.
The current system of competences of local authorities is based on Law n° 7/1985 LBRL, as amended by Law n° 27/2013 LRSAL. According to Article 7 LBRL, “1. The powers of the Local Entities are their own or attributed by delegation. 2. The powers of the Municipalities, Provinces, Islands and other territorial Local Entities may only be determined by Law and are exercised autonomously and under their own responsibility, always attending to due coordination in their programming and execution with the other Public Administrations”. Article 9 establishes that “The rules of development of this Law that affect the Municipalities, Provinces, islands or other local territorial entities may not limit their scope of application to one or more of said entities with a singular character”.
The principles on municipal competences are established by Articles 25-27, which is complemented by national and regional legislation. As for the provincial competences, the national legislation is not as detailed and exhaustive as it is when it deals with municipalities. Therefore, the role, services and responsibilities of the provinces are mainly regulated by regional legislation. However, national legislation establishes a set of minimum competences to be discharged by the provinces, in Article 36.1 of Law 7/1985.
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.
In Spain, the issue of the “competencias impropias” (competences traditionally exercised by the municipalities due to their proximity to the citizens and in response to their direct demands, although not explicitly attributed or delegated to them) has been debated for decades and it was addressed by the Congress in the 2013 report. These “competencias impropias” are not explicitly provided for by law (but nonetheless hitherto assumed to comply with LBRL, which establishes, in Article 2, the principle of the “right of intervention in every field concerning the circle of their own interests”), They concern personal services and physical environment services. The provision of services that results from these competences is not fairly compensated; no economic resources are made available for their implementation.
The LRSAL reform, in 2013, was aimed at eliminating or at least greatly reducing this phenomenon. Article 25.1 of the LBRL, which allows municipalities to “promote all kinds of activities and provide all public services that contribute to satisfy the needs and aspirations of the neighborhood community”, was kept firm, although a precision was introduced, limiting the general competence clause “within the limits provided by this article”. For this aim, the law provided for a strict list of responsibilities classified either as “held in own right” (competencias propias) or “delegated” (atribuidas por delegaciòn). In addition, Article 7.4, gave explicit recognition to the “competencias impropias”, at the same time it introduced some conditions to assume them: the Constitutional Court definite Article 7.4 as “a new general clause for municipal competences”.
Therefore, the LRSAL does not prevent the municipios from assuming responsibilities outside the list of Article 25.2, but subject to two specific substantive conditions (Article 25 and Article 7.4 of the LBRL, as modified by the LRSAL):
a) when the assumption of a “non-standard” responsibility is in line with the constraints of the legislation on budgetary stability and financial sustainability of the municipio concerned;
b) when the exercise of the competence does not imply a “duplication” of competence in respect to other administrative tiers. In addition, also some procedural conditions are established, in terms of prior reports of the competent Administration by reason of matter, in which the absence of duplications is pointed out, and of the Administration that has attributed financial supervision over the financial sustainability of the new competences.
Although the LRSAL does not prohibit the possibility of developing improper powers, this will only be possible if the municipality has a healthy economic situation and as long as improper competition does not produce duplication.
The rapporteurs consider this rationalisation of the “improper competences” as a positive development, contributing to improve the financial situation of the municipalities. Nevertheless, the impact on local autonomy cannot be underestimated. During the monitoring activity the delegation was informed that, in practice, it is almost impossible for some municipalities, especially for small municipalities, to undertake “competencias impropias”. At this respect, as on many other issues, an enormous difference exists between the bigger towns and the small municipalities. The delegation was informed that the situation of small municipalities is even more problematic in the non-insular unprovincial Autonomous Communities, where the province, as local authority which tasks of coordination and support to small municipalities, does not exist.
During the consultation process after the monitoring activity, the Spanish government pointed out that the LBRL recognises the assistance function of the Provincial Councils to the municipalities, especially those with a smaller population. In fact, a series of basic services or benefits that are compulsory public services or respond to competences that constitute the basic nucleus of municipal autonomy are attributed as their own competencies (art. 36.1 LBRL). In addition, the government highlighted that the LBRL attributes to the uniprovincial Autonomous Communities the competences, means and resources that correspond to the Provincial Councils (art. 40 LBRL). In this way, the municipalities that are in the territorial sphere of a uniprovincial Autonomous Community are insured by law with the aforementioned assistance function. Finally, the Spanish government highlighted that it is working to a reform aimed at improving the inter-administrative collaboration and co-governance, giving an essential role to the Provincial Councils, reinforcing their assistance especially towards small municipalities.
The competences of the provinces are more limited. They are not empowered by a “general competence”. Their tasks are limited to those attributed by the State or by the Autonomous Communities.
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.
This principle is clearly upheld in national law (see Article 2.1 of the LBRL) as a guiding principle for State and regional legislation assigning powers to local authorities, and it is also included in the most recent statutes of the Comunidades autónomas. Most of the new generation Statutes explicitly adopt the principle (see Article 84, paragraph 3 of the Statute of Catalonia, which directly links the principle to the Charter; Article 89.2 of the Statute of Andalusia; Article 64.2 of the Basque Country Statute), which is also included in many regional laws on local government. During the consultation after the monitoring activity, the FEMP pointed out that the LRSAL has reduced the importance of this principle in the attribution of powers to local authorities. Whereas previously the principles that governed this attribution were those of decentralisation and proximity, now these are subordinated to those of effectiveness and efficiency and strict compliance with budgetary stability and financial sustainability regulations (article 2.1 LBRL).
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.
In Spain, the main concern with respect to this article has always been the clear definition of the competences of the different levels of government. The LRSAL tried to apply the principle of “one competence, one administration”, especially with the aim of reducing public expenditure. This principle has been entrenched in Article 25.5 of the LBRL.
During the monitoring activity, the delegation was informed by many interlocutors that this issue has not been fixed. The problem of the delimitation of competences remains unsolved and there are still cases in which the distribution of competences of the territorial administrations is not sufficiently clear and requires greater specificity.
This situation has been aggravated by the consequences that the management of the health and economic crisis caused by the COVID-19 pandemic is having on the different public administrations. In this way, local authorities face new needs that must be met by public administrations, sometimes without being clear about who the competence is, with the consequent increase in the cost of providing many public services.
The central government, the representatives of the Autonomous Communities, the representatives of the local authorities, including the FEMP, all agreed on the necessity of a new “Pacto local” (Local Compact), which should address several issues, including a new division of competences between levels of government.
Rapporteurs are aware that Spain is a strongly decentralised State, with a very complex territorial structure and a sophisticated system of division of competence. However, they encourage all the stakeholders in engaging in a dialogue with the aim to continue improving this system, adapting it to the new challenges.
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.
In Spain, according to article 7.3 of the LBRL, “The State and the Autonomous Communities, in the exercise of their respective powers, may delegate the exercise of their powers to the local authorities”. Likewise, it is established that the delegated powers are exercised in the terms established in the delegation provision or in the delegation agreement, as appropriate, subject to the rules established in article 27 of the above mentioned law, and will provide management techniques and control of expediency and efficiency. This article contains a list of powers which may be delegated (not exhaustive):
a. Surveillance and control of environmental pollution.
b. Protection of the natural environment.
c. Provision of social services, promotion of equal opportunities and prevention of violence against women.
d. Conservation or maintenance of healthcare centers owned by the Autonomous Community and creation, maintenance and management of publicly owned nursery schools for the first cycle of early childhood education.
f. Carrying out complementary activities in educational centers.
g. Management of cultural facilities owned by the Autonomous Community or the State.
h. Management of sports facilities owned by the Autonomous Community or the State, including those located in educational centers when they are used outside of school hours.
i. Inspection and sanction of establishments and commercial activities.
j.Tourism promotion and management.
k. Communication, authorisation, inspection and sanction of public shows.
l. Liquidation and collection of taxes of the Autonomous Community or the State.
m. Registration of associations, companies or entities in the administrative records of the Autonomous Community or the State Administration.
n. Management of unified information offices and administrative processing or cooperation with the educational Administration through the associated centers of the National University of Distance Education.
Article 27 establishes that the delegation must determine the scope, content, conditions and duration, which may not be less than five years, as well as the efficiency control reserved to the delegating administration and the personal, material and economic means, that it assigns, without additional costs for the Public Administration. The effectiveness of the delegation will require its acceptance by the interested municipality.
No issues have been raised during the monitoring activity.
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.
At national level, the main institution is the National Commission for Local Administration, which is regulated by the Articles 117-119 of the LBRL. The Commission is integrated by an equal number of members appointed by the government and by the FEMP. It must meet at least twice a year. The Commission issues advice on draft laws and draft regulations affecting local government. It can also make proposals and suggestions to the government.
Consultation rights are very developed at regional level. In this field, several Autonomous Communities have changed their Statutes and laid down new principles regarding the rights of local authorities to participate to the decision-making process at regional level, creating new areas of co-operation between autonomous communities and local authorities.
For example, Catalonia created (Article 85 of the Statute) a Consejo de Gobiernos Locales, as an organ representing municipios and veguerias (the only second tier of local government recognised by the Statute) in the legislative process and in taking decisions on regulations and acts of general planning. The Consejo has to be regulated by an ordinary law of the autonomous communities. Similar institutions have been created in Navarra, Comunidad Valenciana, Galicia, Andalucia, Castilla y Leon, Aragon, although the effectiveness of such bodies has been questioned by some scholars.The interlocutors pointed out many interesting tools of consultation developed by the Autonomous Communities. To give just one example, the Basque Country developed a system of “alerta temprana” (early warning), according to which the Commission of Local Governments of the Basque Country, of strictly municipal composition, prepares a preliminary report on the draft laws or legislative decrees, to analyze the adequacy of such draft or projects to the local autonomy.
During the monitoring activity, the rapporteurs received inconsistent information. While some sources have stated that the central government consults the local authorities, namely the FEMP, in due time and in appropriate way in the planning and decision-making process for all matters which concern them directly, others have declared the opposite and stressed the need to improve such consultation. It has especially been pointed out the necessity of including representatives of local authorities in the main body of consultation between the State and the Autonomous Communities: the Conference of Presidents.
The issue was also raised by the Recommendation 336 (2013), which asked the Spanish government to “define in law the relationship between the State, the Conference of Presidents of Autonomous Communities and the FEMP”.
Only recently the President of FEMP has been invited to attend the meetings of such institution, but without any legal framework. In addition, the FEMP may attend the sectorial conferences between the State and the regions, but without the right to vote (the Conferences on Public Administration; Housing, Urbanism and Land; Agriculture and Rural Development; Fisheries; Consumption; the Interterritorial Council for Social Services and the Unit Care System). A special mention is worthy the “Conferencia Sectorial del Plan de Recuperación, Transformación y Resiliencia”. This Sectorial Conference is a coordinating body between the State and the regions, created by Royal Law-Decree n°36/2020, of December 30, to establish routes of cooperation in the implementation of European funds from the Recovery and Resilience Mechanism. In this Conference the local authorities participate through the FEMP, with right to vote. The participation of the FEMP is also contemplated in the regulations of the three sectoral conferences constituted in 2020: that of the 2030 Agenda, that of the demographic challenge and that of professional qualifications. And the Federation has been invited to the meetings of the Interterritorial Council of the National Health System, the Conference of Presidents or the Conference on Affairs Related to the European Union.
During the consultations after the monitoring activity, the Spanish government pointed out that it is working on a draft reform of the sectorial conferences, including the participation of the President of the FEMP or the person appointed by him in the Conference of Presidents and sectorial conferences.
The rapporteurs appreciate the recent developments of the consultation process at national level. However, they consider that there is room for improvement, especially in the perspective of an initiative towards an important local government reform, with the aim of realising a “second decentralisation”.
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.
Article 13 of the LBRL establishes that “The creation or suppression of municipalities, as well as the alteration of municipal boundaries, shall be regulated by the legislation of the Autonomous Communities on local regime, without the alteration of municipal boundaries may imply, in any case, modification of the provincial boundaries. In any case, they will require a consultation of the interested municipalities”. The details of the procedure are specified by the Royal Decree n° 1690/1986, of July 11, which approves the Regulation of Population and Territorial Demarcation of Local Entities.
During the monitoring activity the issue was not raised. Although local government is highly fragmented and there are many small municipalities experiencing serious problems in managing their tasks, consolidation is not an option in Spain. The LRSAL introduced several measures aimed at encouraging voluntary mergers (as the increase in financing, the preference in the allocation of local cooperation plans or subsidies, the dispensation in the provision of new mandatory services as a consequence of the population increase), but they have had a limited application in practice. The number of municipalities has not decreased, whereas the preferred solution to remedy the high fragmentation has been the inter-municipal cooperation.
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.
In Spain, the national law (LBRL) recognises the normative power of local authorities also regarding their internal administrative organisation. They can approve organisational by-laws (reglamento orgánico), which may respect the basic provisions of State legislation in the matter, as well as the implementing legislation approved by the Autonomous Communities within their competences. The organisational autonomy is firmly considered as an important part of local autonomy, by scholars and case-law.
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.
Title VII of LBRL ensures the legal basis of human resources at local level, as well as regional and sectorial law.
In Spain, local government staff may be of two different kinds: civil servants (funcionarios) and contractual employees (personal laboral). Civil servants are considered under public law and enjoy a special legal status (in principle, they cannot be fired or made redundant). The recruitment of this type of employee, their rights, services, duties and responsibilities are regulated by administrative law. Contractual employees, on the other hand, are governed by private employment law. Their salaries and working conditions are regulated in a different way: they sign individual contracts; they bargain and negotiate collective agreements with the corresponding local authority (usually the big ones). In terms of personnel management, each local authority is supposed to work as an independent “company”, with its own staff, although within strict budgetary limits, introduced by the LRSAL. Especial limitations were introduced for the number of positions which can be covered by additional staff. During the monitoring activity no issues were raised.
In addition, there is a special type of local employee, who has traditionally been recruited and managed by the national government. These so-called “civil servants having a national qualification” or “national-wide qualified” employees (funcionarios de Admnistración Local con habilitación de carácter nacional) are the only ones who enjoy ‘‘professional mobility’’ across the Spanish territory. In other words, during their career, they may obtain positions within the administration of different local authorities across the country, by participating in “ad hoc” staffing procedures. The status of this special type of civil servant is also regulated by the State (the essential rules and elements) and by the Autonomous Communities. More detailed rules were introduced by the LRSAL. Clearly, the role of such special civil servants is of high importance to each and every local authority, because they discharge (in an exclusive way) crucial legal and managerial functions. These public servants are assigned functions involving the use of authority and certification powers and to provide legal advice, as well as the control and internal auditing of finances and budgeting, and for accounting, treasury and tax-collection.
The conditions of office of local elected representatives shall provide for free exercise of their functions.
In Spain, local representatives are elected for four years and cannot be recalled. Their status is regulated by the LBRL, which establishes their rights and duties (Articles 73-78). During the monitoring activity, no issues were raised concerning this paragraph.
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.
In Spain, the LBRL (Articles 75 to 78) establishes the possibility that elected representatives can receive remuneration and compensation for the performance of the position. The economic perceptions that councilors receive are the following:
Article 75.1 LBRL establishes that “The members of the local authorities will receive remuneration for the exercise of their positions when they perform them with exclusive dedication, in which case they will be registered in the general Social Security Regime, with the local authorities assuming the payment of the corresponding contributions”. It will be the Plenary, at the proposal of the president, who determines within the global budget allocation of the local council, the list of positions that are developed under that exclusive dedication regime, setting the amount of the remuneration that correspond to each of them, although always within the limits established by State legislation.
Recommendation 336 (2013) asked Spain to revise legislation in order to fix a minimum and maximum threshold for remunerating local elected representatives in accordance with Article 7.2 of the Charter.
Also to address this recommendation and in the framework of the measures adopted to rationalise public expenditures, the LBRL was amended by the LRSAL. A new article was added (Article 75 bis), establishing the thresholds for the full time (dedicación exclusíva) elected officials, according to the size (number of inhabitants) of the local authority. Also for budgetary reasons, the law established a ceiling of the elected representatives which can opt for a full-time position, in proportion to the number of inhabitants (Article 75 ter).
Interlocutors met by the delegation consider that, in general, the remuneration system can be considered adequate and allows, above all, great flexibility to adapt to the needs of each municipality and the personal circumstances of each councilor.
Any functions and activities which are deemed incompatible with the holding of local elective office shall be determined by statute or fundamental legal principles.
In Spain, the incompatibilities are determined by several legal provisions., included in the General Electoral Law, which largely correspond (with only a few additions) to those provided for general elections. No issues have been raised during the monitoring activity.
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 line with the requirements of the Charter, in Spain the rules governing the supervision over local authorities and the powers of the central and regional authorities concerned are determined by the law (see above).
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.
In Spain, (see above) the supervision over the acts of local authorities is carried out by the State or the Autonomous communities and it is limited to a control of legality. If the supervision authority considers that the act is illegal, they can only challenge it in courts. No issues have been raised during the monitoring activity.
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.
In Spain, no issues have been raised during the monitoring activity. Nor the financial supervision, which has been reinforced in the framework of the introduction, in the Constitution and in the legislation (Organic Law n.2/2012; LRSAL) of the principle of the balanced budget (see above), did raise any special concern by local authorities.
Local authorities' financial resources shall be commensurate with the responsibilities provided for by the constitution and the law.
In Spain, all the interlocutors agreed on the need to change the current system of local financial resources, in favour of a new regional and local financing model, which gives the certainty of the resources that each administration can count on, and which takes into account the particularities of local authorities in its distribution, such as demographic factors and geographic dispersion.
The issue was also raised by Recommendation 336 (2013), which asked the Spanish government to “ensure that, in accordance with the legislation, each transfer of powers to local authorities is guaranteed by adequate financial resources; (Article 9.2)”.
The main concerns are related to the continuing of transfer of competences without adequate resources; the financial difficulties of small and depopulated municipalities; the lack of resources to address the needs of the residents, in terms of social services. It was especially pointed out the lack of a correct calculation of the real costs of social services. Some interlocutors described the existing system as a “perverse financing system, which in fact encourages depopulation”. New criteria must be included, beyond population, such as geographic dispersion, in the calculation of the financial transfers to municipalities.
During the consultation process after the monitoring activity, the Spanish government pointed out that, notwithstanding particular cases of municipalities not properly funded and the convenience to introduce technical corrections in the new financing system, the local governments subsector is the level of government that presents the best financial figures: in contrast to Central State and regional governments it has generated substantial fiscal surpluses since 2012, and is the only sector which stock of debt is below the long term reference laid down in article 13 of the Basic Stability Organic Law, for fiscal year 2020, namely, 3% of GDP (see also the Annex 1 on the Evolution of gross fiscal magnitudes 2009-2019). The total accumulated savings of the subsector amounted to 20 billion euros in 2019. Therefore, contrary to some opinions, it is difficult to argue that the sector, in general, presents financial difficulties and lack of resources to address the needs of the residents, in terms of social services.
However, the rapporteurs consider that these figures cannot substitute the introduction of adequate criteria to assure local authorities sufficient financial resources in proportion to the responsibilities assigned to them by law. They strongly encourage the Spanish government to push forward the announced reform of the local finances.
For the purpose of borrowing for capital investment, local authorities shall have access to the national capital market within the limits of the law.
In Spain, local authorities have access to capital market, with some limitations related to their financial situation, which can imply the authorisation of the Ministry of Finance or of the Autonomous Community (Article 53).
As a consequence, according to 2018 figures, 2.3% of the Municipalities cannot arrange debt operations due to exceed their debt / current income ratio by 110%, and 2.2% must have the approval of the supervisory body when it is between 75% and 110%. On the other hand 4,403 Municipalities have no financial debt as of 31 December 2018.
The delegation was informed that the local government indebtment was halved from 2012 to 2020.
The rapporteurs are aware of the impact of the local government debt on the public finances and of the importance of keeping a balanced budget, also taking account the European Union requirements.
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.
Article 9, paragraph 7 of the Charter establishes that “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”. Although most of the State or regional grants are unconditional (non-earmarked), grants for specific projects do exist in Spain. Part of local investment projects are also financed through EU structural funds and other financial instruments. In addition, municipalities (especially the small ones) may also receive grants from the provinces for the accomplishment of public works or infrastructures (for instance, the paving of local streets or the construction of a new sports facility)
However, local authorities are completely free to exercise policy discretion within their own jurisdiction also when they use those specific grants. No issues have been raised on this topic during the monitoring activity.
Local authorities shall be consulted, in an appropriate manner, on the way in which redistributed resources are to be allocated to them.
The rapporteurs welcome the participation of the representatives of the FEMP within the newly created “Conferencia Sectorial del Plan de Recuperación, Transformación y Resiliencia” and encourage the enhancement of the principle of consultation in the perspective of a “second decentralisation”.
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.
La Recommandation 336 (2013) appelait le Gouvernement espagnol à « renforcer l’aide à la gestion dispensée aux petites communes par l’administration des provinces et mettre en place un système de péréquation entre les communes, afin de garantir le transfert de ressources des plus riches d’entre elles vers les plus pauvres (article 9.5) ».
Cette question n’a pas reçu de réponse dans la législation : l’Espagne n’a pas de véritable système de péréquation au niveau local. La formule appliquée pour la répartition de la part des communes sur les impôts nationaux (participación de los municipios en los tributos del Estado) inclut (outre le nombre d’habitants, qui compte pour 75 % du total, et la capacité de la collectivité locale à collecter ses propres ressources, correspondant à 12,5 %) certains critères visant à réduire les inégalités entre les communes les plus riches et les plus pauvres, en tenant compte de la faible capacité fiscale (inverso de la capacidad tributaria, correspondant à 12,5 %). Cependant, ce mécanisme est insuffisant, surtout pour les petites communes des régions dépeuplées, où le coût des services est plus élevé du fait de la faible densité de population, comme l’ont souligné les représentants des petites communes lors de l’activité de suivi.
Lors des consultations consécutives à l’activité de suivi, le Gouvernement espagnol a souligné que les petites communes présentent une situation financière extrêmement saine, réalisant une épargne budgétaire (environ 20 % de l’ensemble des communes) d’après les dernières données publiées (voir aussi l’annexe 2 sur l’épargne brute et nette, adressée par le gouvernement). Même si des problèmes de manque de ressources peuvent se poser dans certains cas particuliers, et tout en reconnaissant que le nouveau système devrait viser à corriger ces problèmes et prendre en considération les situations spécifiques de ces collectivités locales, le gouvernement soutient que les données publiées ne décrivent pas une situation générale de sous-financement des petites communes et des zones géographiquement défavorisées (régions en transition, de montagne ou insulaires).
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.
En Espagne, les collectivités locales disposent de leurs propres ressources, qui représentent une partie importante de leurs revenus. D’après les informations communiquées par l’administration fiscale nationale, et correspondant aux chiffres de 2018, les ressources propres représentent 61,1 % des recettes totales des communes et 22,4 % dans le cas des provinces (voir ci-dessus). Lors de l’activité de suivi, par exemple, il a été indiqué à la délégation que les recettes provenant des redevances et impôts locaux dans la province d’Almeria représentent entre 50 et 60 % des recettes locales totales des communes de plus de 5 000 habitants et entre 20 et 40 % pour les communes de moins de 1 000 habitants.
Certains interlocuteurs au niveau local ont souligné la nécessité d’améliorer la coresponsabilité budgétaire des collectivités locales, en leur donnant une plus grande autonomie pour déterminer leurs propres recettes et réduire leur dépendance vis-à-vis d’autres niveaux d’autorité. Ils ont aussi indiqué que, pour atteindre cet objectif, il était essentiel de réviser les principaux éléments du système, afin de le rendre plus efficace et plus équitable.
Le système fiscal local repose sur un ensemble d’impôts fixes et hautement impopulaires. En effet, les impôts locaux sont extrêmement visibles pour les citoyens, en comparaison avec les principaux impôts collectés par les autres niveaux d’administration, qui sont soit dissimulés derrière le prix des marchandises et des services (TVA et taxes spéciales), soit largement déguisés du fait qu’ils sont collectés au moyen d’une retenue à la source (impôt sur le revenu). Cela signifie que les autorités nationales et régionales peuvent, en période de boom ou de croissance économique, augmenter sensiblement leurs recettes fiscales à un coût politique réduit, tandis que les collectivités locales doivent adopter des mesures bien plus visibles pour accroître leurs recettes fiscales.
De plus, une part importante des impôts locaux est étroitement liée au cycle économique, ce qui compromet à moyen et long terme la stabilité de leur collecte, pourtant essentielle pour garantir le financement des services publics. Ainsi, l’évolution de la taxe sur la valorisation des terrains urbains (ce qu’on appelle les plus-values municipales) et, surtout, de la taxe sur les constructions, les installations et les travaux a assurément engendré des difficultés financières pour de nombreuses communes espagnoles qui avaient choisi à un moment donné d’étendre leur offre de services et donc d’augmenter leurs dépenses récurrentes en s’appuyant sur leurs recettes régulières, lesquelles ne le sont pas tant que ça comme le montre leur effondrement avec l’avènement de la crise. Cependant, lors du processus de consultation consécutif à l’activité de suivi, le Gouvernement espagnol a souligné que selon lui cette rigidité des impôts locaux vis-à-vis du cycle économique avait permis à ces impôts d’atteindre des niveaux relativement meilleurs pendant la pandémie.
En raison du caractère insuffisant des ressources propres, le modèle de financement local repose sur un système de transferts présentant des inégalités horizontales qui ont été préservées (et aggravées) au fil du temps. Sur les 35,8 % des recettes totales des collectivités locales provenant de transferts, 20,25 % proviennent de l’État, sous la forme de la « part sur les recettes de l’État », un transfert inconditionnel qui constitue l’une des sources de revenus des conseils municipaux, provinciaux et insulaires, mais qui n’est pas réparti d’après des critères de redistribution.
Les grandes communes ont souligné que l’un des problèmes à résoudre tenait au fait que le système fiscal local consiste essentiellement en impôts ayant un haut degré de rigidité et dont l’assiette évolue sans lien direct avec l’activité économique générée dans la commune ni avec les usagers des services municipaux. Lors du processus de consultation consécutif à l’activité de suivi, le Gouvernement espagnol a souligné que ces impôts permettent d’isoler les finances locales du cycle économique, ce qui leur garantit une source de financement fiable. De plus, même dans la source de revenus la plus importante pour les collectivités locales, à savoir la taxe foncière, celles-ci jouissent d’une marge de discrétion notable pour décider du taux de cette taxe entre certaines limites.
Les rapporteurs encouragent le Gouvernement espagnol à tenir compte des problèmes liés aux ressources propres des collectivités locales dans le cadre d’une réforme générale des finances locales.
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.
In Spain, the Constitution contains specific provisions stressing the principle of financial sufficiency, by establishing that: «Local treasuries must have sufficient funds available in order to perform the tasks assigned by law to the respective corporations and shall mainly be financed by their own taxation as well as by their share of State taxes and those of Autonomous Communities» (Article 142). Besides these specific constitutional provisions, Law n° 2/2004, of 5 March, on local finances provides a comprehensive regulation of this matter (see above).
Local authorities have their own revenues (recursos propios), which include all the different types of income generated by the activity of local authorities either of a fiscal or non-fiscal nature.
As a rule, all decisions concerning the revenues and the distribution of resources are taken in an autonomous way by the local authority and must be decided in the municipal budget, which must be approved by the plenary session of the Council. Local authorities do approve their own budgets, without the need of a prior approval by the regional or State agencies. However, for some budgetary operations local authorities require such approvals, for instance when the local entity envisages having recourse to borrowing, above a given ceiling. As for expenditure, it is also decided in an autonomous way and it is only submitted to the ex post accountability control of the internal auditors and the Spanish Court of Audit. Some limitations have been introduced in the framework of the constitutional reform of the Article 135 (balanced budget) and its legislative development. For example, in case there is a surplus, this must be allocated entirely to reduce indebtedness in net terms (Article 32 Organic Law n° 2/2012), with some exceptions, such as the so called “Financially Sustainable Investments”(Inversiones Financieramente Sostenibles). In the same perspective, "The income obtained above what is expected will be used entirely to reduce the level of debt public” (Article 12.5 of the Organic Law n° 2/2012).
This is understandable as, as a member of the EU, Spain must comply with the Lisbon Treaty and Protocol no. 12 on the excessive deficit procedure. The national authority is responsible, therefore, not only for its own deficit but also for those of local and regional authorities.
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.
In Spain, the revenues of local authorities may come from different sources (own taxes and fees, transfers, other sources). Local authorities may adapt their own income to the different circumstances: for instance, if the local tax intake goes down for general economic reasons, the local authority may decide to increase local fees and charges paid by local service users (especially in urban areas) as a way to offset the decline. As for the specific transfer awarded by the national government, by which municipalities participate in the tax revenues of the State («partipación en los tributos del estado»), it is calculated each year, according to a complex statutory formula, which take into account also price increases, or factors involved in the delivery of services.
Some interlocutors pointed out the necessity to consider more carefully the real costs of local services. The rapporteurs consider that this issue should be addressed in the foreseen reform of local finances.
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.
Article 10, paragraph 1, refers to types of cooperation aimed at carrying out tasks of common interest. Under Article 10.1, local authorities firstly have a general right to co-operate with one another in order to deliver local services or discharge their responsibilities. Inter-municipal co-operation (or co-operation at other levels of local government) is a fundamental tool for local authorities in terms of delivering services, in view of the fact that many of them are too small or too weak (financially speaking) to deliver all the services they are supposed to or to carry out any meaningful local strategy or policy. This general entitlement to co-operate with other local entities is supplemented by a more specific right, namely the right to “form consortia”, i.e. to create separate organisations. Although the Charter only mentions “consortia”, the specific right to create joint institutional structures, separate from the participating local authorities, may take various forms.
In Spain, the right of municipalities to cooperate and associate with other municipalities to establish “mancomunidades” is recognised by Article 44 of the LBRL, according to which “1. Municipalities are recognized the right to associate with others in associations for the joint execution of certain works and services within their competence. 2. The associations have legal personality and capacity to fulfil their specific purposes and are governed by their own Statutes. The Statutes have to regulate the territorial scope of the entity, its object and competence, governing bodies and resources, term of duration and how many other points are necessary for its operation. In any case, the governing bodies will be representative of the joint city councils”.
Municipalities belonging to different autonomous communities may be integrated into the same association, provided that the regulations of the affected autonomous communities allow it.
The division of the legislative competence between the State and the Autonomous Communities in this matter is especially complicated, and it originated several conflicts, decided by the Constitutional Court. This case-law also refers to Article 10.1 of the Charter to protect the local autonomy of the mancomunidades, as, “although they are not ‘consecrated constitutional local entities’, they are directly related to the interests of the joint municipalities and, with that, to the guarantee of local autonomy (art. 137 CE)”. For this reason, limitations to this right can only be introduced by national legislation, and always in compliance with the institutional guarantee of local autonomy: “The legislative configuration of this "right of association" is constitutionally relevant from the perspective of the guarantee of municipal autonomy (arts. 137 and 140 CE). The right to promote joint management of public services is simply an expression or development of the autonomy that municipalities have constitutionally recognized (arts. 137 and 140 CE). In this way, a regulation of this "right of association" could violate, where appropriate, not Article 22 CE, but Articles 137 and 140 CE, which are those that guarantee the municipal public power decision-making areas related to their own organisation and the management of the matters that concern them”.
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 “associations” referred to in paragraph 2 are different from those mentioned in paragraph 1. Those mentioned in Article 10.1 are set up for the delivery of local services, plans or projects and are instruments for discharging duties and responsibilities. Conversely, those referred to in Article 10.2 are instruments for the promotion of common interests. These associations play a fundamental role in representing and defending the rights, powers and interests of local authorities and they carry out many activities on behalf of them all (not only in favour of their members).
In Spain, the normative framework for establishing associations representing local authorities is contained in the Fifth Additional Provision of Law n° 7/1985 LBRL, which supplement the general provisions on the right of association contained in the Article 22 of the Constitution and in the Organic Law n° 1/2002, of 22 March, regulating the Right of Association.
Strong associations do exist, both at State and regional level. At State level, the National Association of Municipalities and Provinces (FEMP – Federación española de municipios y provincias) comprises in total 7,410 entities (municipal councils, provincial councils, island councils and inter-island councils), representing more than 95% of Spanish Local Governments. It aims at encouraging and protecting the autonomy of local entities by representing and defending their interests before the two other levels of government. It was declared a Public Utility Association by Agreement of the Council of Ministers of June 26, 1985. The FEMP is the Spanish Section of the Council of Municipalities and Regions of Europe (CMRE) and the official headquarters of the Ibero-American Organisation for Inter-municipal Cooperation (OICI).
In addition, there are associations of local authorities operating at regional level in all Autonomous communities (in some cases more than one). These regional associations can agree with the government of the Autonomous Community on the form of cooperation between the regional FEMP and the Autonomous Communities.
Municipalities may also belong to international associations, as part to their general right to associate.
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.
Spain has a long tradition of cross-border cooperation. It has ratified the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities (ETS No. 106), which entered into force in Spain on 25 of November 1990. It has neither signed nor ratified the Additional Protocol to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities (ETS No. 159); Protocol No. 2 to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities concerning interterritorial co-operation (ETS No. 169); Protocol No. 3 to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities concerning Euro-regional Co-operation Groupings (ETS No. 206).
Spain signed bilateral treaties on transfrontier cooperation with France and Portugal, which refer to the cooperation between transfrontier local entities. The Royal Decree n°1317/1997, of 1 August, on communication prior to the General State Administration and official publication of the agreements of cross-border cooperation of Autonomous Communities and local authorities with foreign territorial entities establishes the procedure for the signature of agreements between local authorities in the framework of the abovementioned treaties. The Royal Decree replaces the “express approval” of the State to the cross-border cooperation projects, in force so far, and replaces it by the "prior communication" procedure to the General Administration of the State of these projects. This communication must be carried out by the entities who sign the draft agreement with the Secretary of State for Administrations of the Ministry of Finance and Public Administrations, which acknowledges receipt and has one month to communicate the objections. Objections must be justified and must be based on the fact that the project does not respect the limits that result from what is established in the European Framework Convention and, where appropriate, in the bilateral Treaties. The prior communication therefore is not configured as an authorisation, but as an obligation whose fulfillment conditions the effectiveness of the agreements between the signatory entities.
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.
In Spain, two different legal remedies are relevant as regards Article 11 of the Charter: “ordinary protection”, which is enforced by administrative courts; and secondly, “constitutional protection” that is carried out by means of a special appeal before the Constitutional Court.
As for the ordinary protection, should a national or regional agency adopt a decision or an administrative regulation which could interfere with local self-government, the local authority which considers itself affected by that measure may sue the State or the Region in the administrative courts, claiming that local autonomy has been violated. These courts may set aside and even quash the contested State or regional measure, if they find that there is a clear and evident violation of local autonomy. At the top of the administrative courts system stands the Supreme Court (3rd Chamber). The case-law of this court of justice is, consequently, very important, and constitutes an unavoidable element of the legal idea of “local autonomy”. The Supreme court has directly applied the Charter in a number of cases.
As for the constitutional protection, the Organic Law 7/1999 of 21 April (which preamble explicitly refers to Article 11 of the Charter), introduced the conflict in defense of local autonomy. Through it, local authorities may challenge laws or regulations passed by State and Autonomous Communities which adversely affects the constitutionally guaranteed local autonomy. As stated by the Constitutional Court, “This new procedure reinforces the mechanisms in defense of local autonomy that local entities already have in our system, which traditionally had established jurisdictional channels so that they could demand the protection of the free exercise of their powers, such as provides for art. 11 of the European Charter of Local Autonomy, […]. Said defense against invasions caused by infralegal acts or regulations could, of course, be substantiated before the Judicial Power […]. It was also possible for local entities to allege the unconstitutionality of norms with the force of law that undermined their constitutionally guaranteed autonomy, but only before the ordinary jurisdiction [...] the Law regulates a new constitutional process that enables certain local entities to go to the Constitutional Court in defense of 'constitutionally guaranteed local autonomy' (art. 75 bis.1 LOTC) against violations attributable to both the state legislator and the regional legislator. The conflict in defense of local autonomy constitutes a ‘way for the specific defense of local autonomy before the Constitutional Court’ […]. Said specificity is manifested in that the conflict can only be promoted for violation of the ‘constitutionally guaranteed local autonomy’; consequently, the violation of constitutional precepts that are not directly related to the autonomy that the Constitution guarantees to local authorities may not be alleged in it”.
Despite this important constitutional protection, the document provided by the Constitutional Court to the Congress delegation confirmed the extremely limited use of this instrument (only 1 appeal in the years 2016-2021), especially as a consequence of the very narrow pattern to trigger the Court. According to the law, in the cases of laws that are not of single recipient, complaint may be lodged by a number of municipalities involving at least one-seventh of those in the territorial scope of the law or regulation having the force of law and representing at least one-sixth of the official population of the corresponding territory and a number of provinces involving at least half of those in the territorial scope of the law or rule with force of law and represent at least half the official population. In addition, to lodge the conflict in defense of local autonomy it is mandatory to reach agreement of plenary body of each local government to promote it adopted by an absolute majority of the legal number of its members.
Once this agreement is reached, claimants, before lodging the conflict before the Constitutional Court, must apply, within three months from the adoption of the law or regulation having the force of law contested, for mandatory but not binding opinion to the Council of State or equivalent body of the Autonomous Community, depending on whether the territory of local authorities covers a single region or several of them. Within one month of receipt of the opinion, legitimated subjects may raise the conflict before the Constitutional Court.
The Constitutional Court has been developing its doctrine on local autonomy especially at the request of the Autonomous Communities: local matter can be the subject of a competency claim and the Autonomous Communities are entitled to defend local autonomy before the Court.
The Spanish Constitution of 1978 explicitly recognises local self-government (autonomía local) but does not provide a definition of it.
