This report follows the second monitoring visit to San Marino since the country ratified the European Charter of Local Self-Government in 2013.
The rapporteurs note with satisfaction the introduction of the subsidiarity principle in law and other positive developments since the previous monitoring exercise, such as enhanced consultation procedures with local authorities, the establishment of maintenance funding as well as the strengthened possibilities for Township councils and individual councillors to establish international relations. Additionally, foreign citizens were granted voting rights in local elections.
However, the report raises several matters of concern regarding the limited competencies and decision-making powers at the local level, the lack of autonomy and discretion for local authorities in addition to their limited financial resources and overly detailed administrative supervision. Furthermore, concerns arise from the insufficient use in practice of legally established consultation mechanisms and the absence of professional staff for local authorities.
Consequently, the Congress recommends a series of measures to San Marino to bring local self-government in line with the principles and requirements of the Charter and welcomes the launching of a reform process to achieve this goal.
The national authorities of San Marino are therefore invited to revise the system of allocating competences in order to implement the subsidiarity principle and grant local authorities a substantial share of public affairs, review the financial foundations of local authorities and provide them with necessary human resources, ensure proportionate state supervision over local competences, and implement consultation procedures in a more systematic and timely manner. The rapporteurs also recommend that San Marino 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 (CETS No. 207).
The principle of local self government shall be recognised in domestic legislation, and where practicable in the constitution.
Article 2 of the Charter states that the principle of local self-government must be enshrined in legislation and where possible explicitly recognised at the constitutional level.
As earlier mentioned, there is no unified constitution in San Marino. The constitutional order derives from a number of legislative instruments of which the most significant are the Statutes of 1600 and the Declaration of Citizen Rights of 1974 as amended in 2002.
Although Article 3 of the Declaration states that “Each power of the State shall act in the mutual respect for their autonomy and competence” and township councils are mentioned in Article 16, relating to the functioning of the Guarantor’s Panel on the constitutionality of rules, the principle of local self-government is not explicitly enshrined in constitutional documents.
At the same time, the principle of local self-government is recognised in Law no. 158 of 24 September 2020 on Township Councils, which also explicitly mentions the principle of subsidiarity. Article 1 of this Law states that “Each Township shall be an institutional and territorial entity, to which the law attributes legal personality, in addition to administrative, representative and proposal functions concerning the territory to which the entity refers, also for the purposes of implementing the principle of subsidiarity.”
In light of the above mentioned, the rapporteurs consider that the system currently in force in San Marino meets the requirements of Article 2 of the Charter, although an explicit constitutional recognition of the principle of local self-government would be advisable, as suggested in the previous Congress recommendation on local democracy in San Marino.
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 purpose of Article 3.1 is to ensure that local authorities under their own responsibility have the power to make and enforce decisions in relation to a substantial share of public affairs. The Charter does not define precisely which affairs local authorities should be responsible for.
The Contemporary commentary on the Charter17 clarifies that local authorities should not be limited to simply acting as agents for higher-level authorities, hence it is of importance that tasks managed by local authorities are substantial and by no means residual as in secondary tasks or routine duties. Thus, their ability to act must be real. The Contemporary commentary cautions that restricting the sphere of action of local authorities to matters without wider implications would risk relegating them to a marginal role.
The scope of tasks and responsibilities of local authorities of San Marino is stated in Articles 22 and 23 of the Law on Township Councils. These responsibilities primarily include issuing opinions on street trading, market regulation, and commercial disruptions; contributing to road system planning and safety initiatives; as well as street naming, heritage preservation, and promoting local traditions. The rapporteurs note that most of local authorities’ competences are consultative and advisory in nature.
The previous Congress monitoring report CG34(2018)18 has already highlighted an “enormous deficit of municipal competence which cannot be overlooked because of the well-known particularities and the size of the country”.
The revision of the Law on Township Councils in 2020 increased the role of local authorities in minor maintenance works, allowed them to express binding opinions on ordinary projects of public interest within the Township territory and join criminal proceedings as a civil party in relation to environmental issues.
However, in the opinion of the rapporteurs, these changes can only be described as marginal. The scope of local competences has not been substantially enlarged and the level of local authorities’ responsibilities continue to remain extremely low, in any comparison, and even if the small size of the country is taken into account.
Furthermore, in general terms, decisions made by the council continue to be commonly subjected to final decision making of agencies and authorities at higher level of government. This is demonstrated in numerous requirements of the Township Council as stated in the Law for submitting proposals to central authorities or issuing opinions on various issues, such as “The Council shall be responsible for submitting proposals and decisions concerning the road system within the Township's territory, subject to the favourable opinion of the relevant offices” (Article 23, paragraph 3 of the Law on Township Councils).
Regular funding of local authorities is decided by the Congress of State. Article 32, paragraph 3 of the Law on Township Councils states that “each Township Council shall decide which small ordinary maintenance works not exceeding 3 000€ (three thousand) are to be carried out in a binding manner, with reference to roads, public lighting, pedestrian routes and public green areas”. During the monitoring visit, members of local councils met informed the rapporteurs that although stated as a binding decision on behalf of local authorities in the law, local authorities needed permission to proceed and there were incidents of such decisions being annulled by higher level public agencies.
The rapporteurs consider that the townships do not have independent financial resources and are heavily constrained in their disposal of available resources, which will be further analysed in the section pertaining to Article 9 of the Charter.
In view of the above-mentioned and the limited extent of powers devolved to the Townships, the rapporteurs do not consider that local authorities in San Marino have the right and the ability to regulate and manage a substantial share of public affairs under their own responsibility. They conclude that the system currently in force in San Marino does not meet the requirements of Article 3.1 of the Charter.
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.
As stated in the Contemporary commentary, Article 3.2 entails that “local representatives must be elected in free elections by secret ballot on the basis of direct, equal, universal suffrage.
The Law on Township Councils states that the head of the Township Council and the council members shall be elected in direct elections, every 5 years. Voters are all citizens of San Marino at 18 and above as well as foreign citizens who are San Marino residents and have been residents for an uninterrupted period of 10 years (Art. 8). In accordance with Article 2 of Law No. 6 of 31 January 1996, citizens who are mentally ill or who have been convicted are deprived of their right to vote. Foreign citizens voted for the first time in the last local elections in 2020, with participation of 40.23% compared to general participation which was 41.6%.
Dual mandate as a member of Township council or head of council and a member of the Great and General Council are not permitted (Art. 19, paragraph 1).
As stipulated by Article 10 of the Law on Township Councils: “Each list, including the candidate for Head of the Township Council who is the leading candidate, shall be composed of not more than sixteen and not less than eight persons in Townships with a population of two thousand five hundred inhabitants or more, not more than twelve and not less than six persons in Townships with a population of less than two thousand five hundred inhabitants.” In the 2020 elections 15 lists ran for the council headed by 11 men and four women.
The candidate for Head of the Township belonging to the list obtaining the highest number of votes shall be proclaimed elected (Art. 18, paragraph 1). Depending on the local population, “the list to which the candidate for Head of the Township Council who has obtained the highest number of votes belongs shall obtain five and four seats respectively, including that of Head of the Township Council.” (Art. 18, paragraph 4).
The rapporteurs consider that the system currently in force in San Marino meets the requirements of Article 3.2 of the Charter.
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.
Article 4.1 entails requirement for statutory legislation in relation to basic powers and responsibilities either in the Constitution (or constitutional documents) or the law, providing for clarity and legal certainty as indicated in the Contemporary commentary, this is to ensure that local self-government is predictable, permanent and protected. This does not prevent the assignment of tasks for specific purposes.
As mentioned earlier, the basic powers and responsibilities are described in Law on Township Councils no. 158 of September 2020 in Article 22 (Duties of the Township Council) and Article 23 (Competences and powers of the Township Council).
The rapporteurs consider that the system currently in force in San Marino meets the requirements of Article 4.1 of the Charter.
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.
Article 4.2 stipulates that local authorities must have full discretion to decide on any matters not explicitly excluded from their competence by law or assigned to any other authority. The Contemporary commentary22 also notes that national legal traditions range from the “ultra vires” principle, which requires a statutory basis for any local government action to the “general competence” clause for municipalities in France or the “Aufgabenerfindungsrecht” in Germanic legal systems while highlighting that many countries have actually adopted the so-called clause of general competence for local authorities.
The Contemporary commentary further clarifies that the discretion of local authorities should not be curtailed by overregulation or other rule setting that prevent local authorities from exercising their initiatives. It further notes that restrictions on local bodies’ “full discretion to exercise their initiative” can also stem from management, fiscal and budgeting rules that require a sound legal basis for spending.
There is no clause of general competence for local authorities in the Law on Township Councils nor in the Constitution (Documents) of San Marino. Responsibilities are narrowly defined, and local authorities’ role is primary facilitating instead of decision-making as they facilitate, promote or implement decisions made at higher levels of government as described in Article 22 of the Law on the Township Councils. This was confirmed during the meetings with local councillors who repeatedly complained both about the lack of tasks and the lack of full discretion over the few tasks assigned to them.
The local councillors met by the delegation further explained that they did not have full discretion over the regular funding which is decided by the Congress of State in accordance with the Law on Township Councils (Article 32, paragraph 3) nor were the binding opinions expressed by local authorities (Article 23, paragraph 4) really effective as such decisions were often annulled by higher-level public agencies.
Consequently, the rapporteurs consider that San Marino does not comply with Article 4.2 of the Charter.
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 article underpins the principle of subsidiarity, which aims to ensure that decisions are made by authorities closest to the citizens. The Contemporary commentary points out that distribution of responsibilities must be decided in relation to the size or scale as well as nature of the task and requirements of efficiency. The subsidiarity criterion, as argued by the Contemporary commentary, should take primacy when assigning responsibilities, this is “vitally important for the protection of local authorities against trends towards upscaling and re-centralisation that threaten to render local self-government meaningless.”24 The Contemporary commentary highlights in its paragraph 61 that when applied to local authorities, the principle of subsidiarity has a dual rationale: on the one hand, it increases (through proximity) the transparency and democratic basis of governmental decision-making; on the other hand, it increases the efficiency of governmental action since local bodies are the best suited to fulfil certain tasks (such as providing social assistance or housing) due to their direct knowledge of citizens’ needs.
The subsidiarity principle was added in 2020 to Article 1, paragraph 2 of the Law on Township Councils of 2020, which now stipulates that “each Township shall be an institutional and territorial entity, to which the law attributes legal personality, in addition to administrative, representative and proposal functions concerning the territory to which the entity refers, also for the purposes of implementing the principle of subsidiarity. This principle shall be expressly recognised in the context of international European cooperation and constitutional traditions common to European States, for the purposes of achieving an effective administration that meets the citizens’ needs.”
This article leaves a considerable scope for interpretation of how many tasks local authorities should be assigned to and how extensive these responsibilities should be. In general, local councillors and national authorities met by the delegation showed a mutual understanding of the inherent problems attributed to extensive decentralisation in small countries like San Marino. During the visit, the term “small” (it. piccolo/piccola) was frequently used at all levels of government, both in verbal and written communication, to argue both for and against further decentralisation also in the context of implementing the principle of subsidiarity. Some interlocutors saw little need to decentralise additional competences to local authorities, reasoning that in a small country, national-level competences are naturally exercised in close proximity to citizens. Others, however, expressed support for decentralising more powers to strengthen local self-government.
In any case, the rapporteurs are of the opinion that the application of the principle of subsidiarity in San Marino, which is enshrined in the legislation, raises concerns, given the limited scope of decision-making powers assigned to the local level, even if the principle of subsidiarity is interpreted with due regard to the small size of the country. Local authorities play a marginal role in the provision of services and do not seem to be a natural part of the governmental mechanism.
Moreover, during the visit, local councillors in general asked for more discretion over even those limited tasks that are assigned to them. This indicates that local authorities do not have full responsibility over their tasks, which also goes against the principle of subsidiarity enshrined in Article 4.3 of the Charter.
During the consultation procedure, the Ministry for Internal Affairs, Public Sector, Institutional Affairs, Relations with the Township Councils and Regulatory Simplification (“Ministry of Internal Affairs’), pointed out that the introduction of the principle of subsidiarity in law in 2020 was an opportunity to strengthen the role of local institutions and to bring administrative decisions closer to the needs of citizens. However, it conceded that like any new legislation, its implementation takes time to be fully understood and effectively enforced.
In light of the above, the rapporteurs welcome the explicit introduction of the principle of subsidiarity in legislation, but they consider that in practice given the current scope of decision-making at the local level, the situation in San Marino still does not comply with Article 4.3 of the Charter.
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.
The Contemporary commentary in relation to Article 4.4 states that powers assigned to local authorities “shall normally” be full and exclusive and that they may not be undermined or limited “except as provided for by the law. It stipulates that limitations on local authorities’ powers should be exceptional and based on objective reasons and interpreted narrowly. This provision also discourages the overlapping of responsibilities between levels of government since care should also be taken to establish clear definitions of responsibilities between different authorities and balance in the distribution of roles as “competencies should normally be full and exclusive..”.
The Contemporary commentary further warns that, while the lack of resources at lower levels of government frequently requires complementary action by higher-level authorities, “quite often this does not take place on the basis of parity and partnership and local authorities end up being reduced to mere agents of regional or national authorities”.
As previously mentioned, in San Marino the scope of local authorities’ responsibilities is significantly limited. Furthermore, most decisions made by local authorities must be coordinated with public agencies or are subject to favourable opinion of central authorities. The rapporteurs note that in practice, local authorities are largely confined to consultative and advisory functions. Ultimately, the state retains a dominant role in areas which would typically be fully and exclusively assigned to local authorities. The rapporteurs also consider that this imbalance in the distribution of competences is exacerbated by the minimal financial resources over which local authorities have discretion, an issue which will be further addressed under Article 9.
Consequently, the rapporteurs consider that San Marino does not comply with Article 4.4 of the Charter.
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.
Article 4.5 entails that local authorities should be able to exercise delegated powers freely. As stated in the Contemporary commentary its aim is to protect local authorities as decision makers and ensure that insofar as possible, local authorities have discretion to adapt the exercise of their delegated powers to local conditions.
Furthermore, Article 4.5 aims at ensuring that local authorities are not merely acting as agents of higher-level authorities. The Contemporary commentary clarifies that when local authorities perform tasks on behalf of higher-level authorities and without exercising their own discretion, they are acting as agents of those authorities. Obviously, if a great deal of local self-government activity is devoted to performing tasks on behalf of higher-level authorities and this is done without local discretion, then the autonomy of local authorities may be seriously undermined.
As it has been repeatedly pointed out, local authorities of San Marino have a very narrow scope of competences, and even with those competences they mainly perform advisory and consultative functions, with the state retaining approval or decision-making power. As the rapporteurs learned during the visit, local authorities often play a facilitating role between central authorities and local communities, rather than exercising genuine local autonomy.
Nevertheless, during meetings with local councillors, local differences were detected, such as varying emphasis on tasks and differences in priorities in different localities. This suggests that local authorities, to some extent - although rather limited - are able to respond to the different needs of the local population.
Consequently, the rapporteurs consider that San Marino partly complies with Article 4.5 of the Charter.
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.
Article 4.6 states that consultation (insofar as possible) with local authorities on matters that concern them directly in both a timely and appropriate way is obligatory. The Contemporary commentary states that such consultation procedure should allow local authorities the possibility to formulate and present comments and proposals and that this consultation should take place at the preparation stage of decision making.
The Law on Township Councils does entail several procedures for consultation with local authorities. Interaction between local authorities and higher-level authorities is twofold. The first concerns the obligation of local authorities to inform higher level authorities of their wishes an example of which is found in Article 22, paragraph 3, a-c.
a) transmitting their own decisions, agendas, requests and suggestions to public authorities and bodies;
b) submitting interpellations, requests and proposals to the Congress of State, which is required to respond in writing within sixty days or within a time limit agreed with the requesting Council;
c) inviting members of the Congress of State and of the Great and General Council as well as representatives of institutions or institutional organizations to attend their sessions to report on issues that fall under their direct competence and responsibility;
The second type of interaction is when higher-level authorities inform local authorities of their intentions or decisions. An example of this is Article 23, paragraph 4 stipulating that “The Township Council shall be officially informed in advance of all public projects within the Township territory, promoted by institutional bodies or by affiliated private individuals. The Council may express an opinion within thirty days of receipt of such information. The opinion shall be binding unless such projects are strategic for the Republic and thus entail decisions or acts by the Great and General Council or the Congress of State”.
Other examples of higher-level authorities being expected to consult local authorities are found in Article 25 (Relations with the Public Administration), where “Public Administration may request advisory opinions on the annual State Budget from each Township Council” (paragraph 1) and Article 31 (List of works), paragraphs 2-5.
2. By September of each year, the Ministry of Territory and Environment, the Ministry of Finance and Budget, and the Ministry responsible for the Relations with the Township Councils shall organise a meeting with the Township Councils and the Directors of Autonomous State Corporations in order to establish a schedule for public works planned for the following year.
3. The schedule shall define a multiannual programme for the execution of public works and the necessary appropriations, taking into account the intervention priorities indicated by the Councils and the programming needs of the Public Corporations.
4. The Ministries responsible for the Relations with the Township Councils and for the Relations with the Autonomous Public Works State Corporation shall periodically organise a meeting between the competent offices and the Township Councils on planned public works.
5. The designated offices and companies shall inform the Councils in advance of the possible start and end dates of ordinary and extraordinary maintenance activities on public works and infrastructures within their territory.
Furthermore, a Board of Township Councils (Consulta delle Giunte di Castello) is mandatory in San Marino. This Board represents “in a unitary manner the petitions and prerogatives attributed to the Township Councils.” (Art. 30 paragraph 1 of the Law on Township Councils No. 158/2020). It is composed of all the Townships heads and remains in offices for the duration of the elected councils. The board may also support and encourage various initiatives such as democratic debate on local self-government. It may establish relations with local institutions in other countries and international organizations. It may also draw up projects, proposals and initiatives to be submitted to the Congress of State and promote in a unitary manner the issues listed in Article 22 of the Law on Township Councils. A spokesperson for the Board is elected by absolute majority for one year at a time. The Board must coordinate with national government as stated in Paragraph 8: “A representative of the State Institutional Secretariat and a representative of the Minister responsible for the Relations with the Township Councils shall be invited to the Board meetings.”
The rapporteurs note however that the obligatory consultation processes on behalf of higher-level authorities described in the Law on Township Councils are heavily concentrated on public works and maintenance. In the meetings between the delegation and local councillors, the latter repeatedly complained about the consultation processes being superficial and in many cases being used by national authorities as a channel to inform local authorities of their decisions. They also pointed to the lack of or belated response from public agencies in relation to local authorities’ inquiries.
The rapporteurs conclude that based on the Law on Township Councils, the basic conditions of consultation framework are in place, although in a very narrow area of responsibilities. Hence, local authorities are able to obtain information on decisions and policies directly concerning them, they are also able to express their opinion on some decisions and policies, however this consultation does not seem systematic and local authorities are not always given enough time to prepare recommendations.
Consequently, the rapporteurs consider that San Marino is partly compliant with Article 4.6 of the Charter.
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 5 introduces procedural rules for changes in local authority boundaries. As stated in the Contemporary commentary it is a mandatory procedural requirement that proposals for changes in territorial boundaries of local authorities must be subjected to a consultation process. Such consultation should also take place early in the decision-making process, to guarantee a real possibility for local communities to express their concerns.
The territorial organisation of San Marino into nine Townships rests an ancient tradition of the San Marino Castelli. The Law on Township Councils does not state any consultation mechanism in place in relation to possible changes of territorial boundaries. During the consultation procedure, the Ministry of Territory, Environment, Agriculture, Civil Protection and Relations with the Autonomous Public Works State Corporation informed the rapporteurs, that the territorial borders of the San Marino Townships have not been under discussion. In the meetings between the delegation and local councillors, concerns were raised on several occasions in relation to dwindling birth rate, which again results in difficulties in providing ample services in local communities.
Given the long tradition of the Castelli and the proximity between citizens and government on all levels and general participatory mechanisms in place in San Marino, the delegation consider it is not likely that lack of consultation in this area would be a problem in the nearest future - although these rights would be best protected by explicitly including them in the legislation.
Consequently, the rapporteurs consider that San Marino complies with Article 5 of the Charter.
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.
The aim of Article 6.1 is to protect local self-government by guaranteeing that local authorities can organise their internal administrative structures that they use to deliver services. As the Contemporary commentary highlights local authorities should have discretion to determine their own internal administrative structures or organisation.
It notes that the power to organise their own affairs is a part of the autonomy enjoyed by local entities and this power must be very broad and should include not only the power to decide on their internal local organisation but also the power to establish independent bodies such as local companies or agencies to improve the delivery of local services, as well as the power to conclude agreements with other local authorities.
Additionally, Article 6.2 enshrines the organisational and institutional autonomy of local governments. It points out that local authorities should have the powers to hire their own staff and local authority employees should also be entitled to training opportunities, remuneration and career opportunities similar to employees at other levels of government. The Contemporary commentary highlights that local bodies need to have human resources to carry out their tasks, as the local entity would otherwise be an empty and powerless government structure.
Local authorities in San Marino cannot hire their own professional staff and cannot determine their own internal administrative structures. The elected members of the councils are obliged to conduct all tasks assigned to the local authorities. The Law on Township Councils specifically mention the Head of the Township Council and the Secretary of the Township Council (elected from among municipal councillors) as these figures are assigned special roles within the organisation of local authorities.
As pointed out during the meetings between the delegation and members of both central and local authorities, the daily management of local authorities is organised by the local councillors, while issues that do not fall under their jurisdiction are handled by relevant public agencies. Hence local authorities heavily depend on public agencies when managing their municipalities on a daily basis. The elected members also often rely on civic engagement of citizens to assist them in fulfilling some tasks.
During the visit, the local councillors frequently mentioned heavy workload of elected members of local government and the difficulties in interacting with public agencies as reasons for the need to provide local authorities with professional staff.
Based on the above mentioned, the rapporteurs conclude that local authorities do not have autonomy in the field of human resources as required by the Charter. The situation in San Marino is therefore not compliant both with paragraphs 1 and 2 of Article 6.
The conditions of service of local government employees shall be such as to permit the recruitment of high-quality staff on the basis of merit and competence; to this end adequate training opportunities, remuneration and career prospects shall be provided.
Consult reply indicated at article 6.1
The conditions of office of local elected representatives shall provide for free exercise of their functions.
Article 7.1 of the Charter seeks to ensure that citizens are free to serve as elected representatives and are not prevented from holding political office owing to financial or material considerations. As stated by the Contemporary commentary, elected members of local government should be provided with facilities, equipment and technical support needed to carry out their tasks as well as training for performing their duties. This provision should be regardless of the officials’ political affiliation.
Local elected representatives met by the delegation confirmed that they had not encountered any significant obstacles in carrying out their functions. Moreover, there were no signals of obstacles in relation to taking their duties and there was no description of differences due to local councillor’s background or political affiliation.
In order to ensure the free exercise of local councillor’s functions, Article 7 of the Law on Township Councils states that “Members of the Township Council and the Head of the Township Council may not be punishable for opinions expressed or votes cast within the Township Council”. The law does not explicitly mention protection against threats from social media or against violation of councillor’s privacy. During the meetings with local elected officials, there was no indication of elected members experiencing threatening behaviour on behalf of the population.
Consequently, the rapporteurs consider that the system currently in force in San Marino complies with Article 7.1. of the Charter.
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.
Article 7.2 aims to ensure that local elected representatives receive “appropriate financial compensation” which according to the Contemporary commentary should include compensation for expenses experienced during exercise of office as well as compensation for the loss of personal earnings in addition to social welfare protection. Compensation schemes should avoid any disparities between local authorities based on financial means.30.
The meetings held by the delegation with local councillors demonstrated that overall, local councillors believed their compensation was too low, compared to workload and at least to some extent provided an obstacle to carrying out their functions. This was especially the case for those with more responsibilities, such as the Secretary of the Council and Head of Council. Some local elected representatives claimed that it was often up to private employer to enable elected members to fulfil their institutional duties or to use their vacation days.
The compensation of local authorities has been increased since the last monitoring visit. It is now defined in Article 34, paragraph 3 in the law of Township Councils, according to which “the annual amounts of the emoluments and attendance fees of the Head of the Township Council, the Secretary of the Township Council and the members of the Township Council shall be as follows:
a) Emoluments for service rendered by the Heads of the Township Council:
1) Township Councils with seven members 6 000€ (six thousand/00) per year;
2) Councils with five members 4 320€ (four thousand three hundred and twenty/00) per year;
b) Emoluments for service rendered by the Secretary of the Township Council:
1) Township Councils with seven members 3 600.00€ (three thousand six hundred/00) per year;
2) Township Councils with five members 2 400€ (two thousand four hundred/00) per year;
c) Amount of attendance fees of the Head of the Township Council, the Secretary of the Township Council and the Members of the Township Council: 70€ (seventy/00).”
There is also a possibility for Heads of the Township Councils or their delegates to take “extraordinary paid leaves up to maximum of five days, also divisible into hours per calendar year” as per Article 35, paragraph 1. During the consultation procedure, the delegation of San Marino to the Congress informed the rapporteurs that it does not consider five days sufficient, for example, to be able to attend Congress sessions. In this respect, the rapporteurs would suggest that the central authorities engage in consultations with local authorities to explore possible solutions for improving this situation.
In accordance with Article 35, paragraph 2 of the Law on Township Councils, the Heads as well as members of the council shall be entitled to extraordinary unpaid leave, also divisible into hours if they have to fulfil institutional duties related to their mandate during working hours.
In light of the above, the rapporteurs consider that the system currently in force in San Marino generally complies with Article 7.2 of the Charter.
Any functions and activities which are deemed incompatible with the holding of local elective office shall be determined by statute or fundamental legal principles.
Article 7.3 is concerned with the incompatibility of holding the local elected office and any other functions and activities. This does not refer to any circumstances either personal or factual that could be preventing the person from becoming an elected official. As pointed out in the Contemporary commentary a dual mandate may create a conflict of interest and would not satisfy the good governance principle.
Article 19 of the Law of Township Councils addresses incompatibilities. The first paragraph states that the office of Head of Township and of Member of the Council is incompatible with the office of Member of the Great and General Council, if elected to both members must choose between offices within 15 days. Furthermore, close relations between members of the council are not permitted. “Ascending and descending relatives, siblings living in the same household, spouses, persons who have entered into a civil registered partnership or de facto partners shall not be members of the same Council at the same time” (paragraph 3).
The rapporteurs consider that the arrangement currently in force in San Marino meets the requirements of Article 7.3 of the Charter.
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 accordance with the Contemporary commentary, supervision refers to any form of intervention in the decision-making process of a local entity by which a higher administrative level explicitly or tacitly approves, clears, agrees, suspends or annuls a proposal or a final decision, rule or plan approved by a local entity. It notes that from the perspective of local self-government, Article 8 on supervision is probably one of the most relevant, since “supervision” is the very opposite of autonomy, to the same extent as control is the very opposite of freedom or self-administration. The greater the supervisory powers of the higher levels of government are, the smaller the actual scope of local self-government will be.
In San Marino, administrative supervision of local authorities takes place through various mechanisms integrated into the Law on Township Councils. This includes submitting reports, minutes and other information on local authorities’ decision making to central authorities. Examples of this are submittance of a yearly financial statement (Article 33, paragraph 7, of the Law on Township Councils) and submitting Council minutes to the relevant public agencies (Article 21, paragraph 4 of the same Law).
Based on Articles 31 and 32 of the Law on Township Councils, local authorities are also required to inform central authorities beforehand of their intentions in relation to public works. Hence, this oversight on behalf of higher-level authorities is quite extensive. This was also confirmed to the rapporteurs by elected members of the councils during the visit.
As for financial control by the central administration, the allocations approved for the management, functioning and activities of the Township Councils are assessed ex ante by the Commission for the Control of Public Finance when the financial resources are allocated to the relevant budget chapters of the Township Councils. In addition, the Township Councils are required by law to submit their annual accounts to the Ministry responsible for relations with the Township Councils by 28 February of the following financial year. These accounts are then sent to the Commission for the Control of Public Finance for the relevant control by 30 April.
In light of the above, the rapporteurs conclude that the supervision mechanisms are established by law and therefore, the situation in San Marino complies with Article 8.1 of the Charter.
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.
Article 8.2 defines the principles and parameters of administrative supervision. This may consist of checks on legality or checks on expediency. In its paragraph 131, the Contemporary commentary clarifies that checks on legality are the type of checks by which the supervisory authority may only determine whether the local authority has complied with the applicable laws and regulations (on the substance or the procedure) in adopting its decisions. As far as checks on expediency are concerned, the supervisory body may rule or decide differently on the merits, that is to say, it can change the import of local decisions for reasons of expediency or policy assessment.
As stated by the Contemporary commentary the Charter proclaims a general preference for checks on legality over checks on expediency, the former being the only checks that in general comply with the Charter. Checks on expediency may only be used for delegated tasks.32 Furthermore, as for the matters that can be “supervised”, the Charter refers to the broad concept of activities, which covers all types of plans, projects, rules, decisions or strategies approved at local level.
As previously mentioned, local authorities in San Marino submit financial statements and minutes to central authorities, which may be interpreted as a check on legality on behalf of central authorities.
Furthermore, in accordance with the Law on Township Councils, the townships must submit to the State institutional secretariat a list of public works with the intended finances by 15 June each year. The Head of Township may also send a list of small maintenance works to the competent authorities. During the consultation procedure, the delegation of San Marino to the Congress informed the rapporteurs that in practice the lists of works submitted by 15 June are not always complied with and while needs are formally listened to, they are not taken into consideration in practice, the central government deciding autonomously. The administrative supervision of local authorities’ decisions in relation to public works or small maintenance works is a mixture of check on legality and check on expediency.
As stated by local councillors during the monitoring visit, local decisions are sometimes changed for reasons of expediency or policy assessment, making regular checks on expediency more frequent than generally preferred by the Charter.
Consequently, the rapporteurs consider that the arrangement currently in force in San Marino partially complies with Article 8.2 of the Charter.
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.
Article 8.3 concerns the principle of proportionality in the administrative supervision. Any supervision on behalf of higher authorities should be proportionate to the importance of the interests it intends to protect.
The Contemporary commentary further clarifies that under the principle of proportionality, the regional or State body should intervene only to the extent necessary, taking into account the relevance of the public interest at stake, or the seriousness of the legal violation allegedly committed by the local authority. It should first consider the possibility of “de minimis” action (warnings, requests, negotiations) before using more intrusive powers, such as annulling or suspending a decision, plan or project adopted at local level. A system under which local authorities must obtain prior approval from regional or State bodies for minor or even trivial decisions would not comply with the principle of proportionality.
In San Marino, the supervisory mechanisms described in the Law on Township Councils seem extensive as most decisions made by local authorities are subjected to a detailed scrutiny on behalf of central authorities. This was confirmed during the meetings with local officials, when elected members highlighted the lack of discretion over the tasks assigned to them. At the same time, locally elected members met by the rapporteurs also pointed to a complete lack of any powers in relation to administration, with administrative responsibilities reserved for the central level of government.
During the visit, the rapporteurs were left with the impression that while scope of local responsibilities is very narrow, the level of administrative oversight by central authorities appears to be rather broad and detailed.
Considering the breadth of administrative supervision of local authorities’ decision-making compared to the narrow scope of their competences, the rapporteurs conclude that the arrangement in force in San Marino partially complies with Article 8.3 of the Charter.
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.
Article 9.1 of the Charter ensures the right of local authorities to have their own resources and the liberty to spend them as they wish. Therefore, as stated by the Contemporary commentary higher-level authorities are expected to make certain that local authorities have the legal, budgetary and fiscal capacity to make use of these rights. It further clarifies that local entities’ own resources are typically made up of various components, such as local taxes, charges, fees, profits under private and commercial law, interest on their bank accounts and deposits.
Moreover, this Article states that resources should be “adequate”, however as discussed in the Contemporary commentary this is not an absolute term but must be exercised in relation to national economic policy.34 Additionally, the wording “adequate financial resources” incorporates the requirement to ensure proportionality between mandatory functions of local authorities and the funding available.
The Contemporary commentary further highlights the link between Article 9.1 and Article 9.3 of the Charter as these two paragraphs deal with the issue of adequate financing and consequently with fiscal autonomy, where local authorities enjoy two substantial powers: the power to have enough resources and the power to raise revenues according to the local situation (i.e., the socio-demographic and socioeconomic conditions).
In San Marino, allocation of funds for Township Councils is determined annually by the Congress of State. The system of financing of local authorities is centralised. 50% of the annual fund is distributed equally between Township Councils and 50% is distributed in proportion to the number of residents (Art 33, paragraph 3 of the Law on Township Councils).
Article 33, paragraph 5 of the same Law states that “the fund allocated to each Township Council shall be managed autonomously by the Council.” However, information provided by the Ministry of Finances reveals that, on average, expenditure relating to Township Councils accounts for less than 1% of government expenditure.
Local authorities in San Marino have no fiscal powers and cannot raise tax revenues. Differences exist between individual Townships as to whether they have some other additional sources of revenue. During the meetings of the delegation with local authorities it became clear that only some municipalities could generate additional income, for example through property rentals or market management. However, these revenues did not appear to be significant enough to ensure adequate independent income.
The State, in collaboration with the State Autonomous Corporation for Public Works (AASLP), is primarily responsible for fundamental activities like road maintenance, signage, and snow removal. According to the Ministry of Finance, this partnership operates on an annual budget of around EUR 3 million and follows a shared intervention schedule. Local authorities can make additional requests for works not covered by this programme, as per Article 32, paragraph 3 of the Law on Township Councils.
According to Article 32, paragraph 3 of the law on Township Council, local authorities are allocated an allowance of 3 000€ (three thousand) per year to cover small-scale ordinary maintenance work in relation to roads, public lightning, pedestrian and public green areas. In the opinion of the rapporteurs, and as confirmed by local elected representatives during the visit, this amount appears insufficient.
Based on the above-mentioned, the rapporteurs consider that local authorities of San Marino are not entitled to their “own” funding of which they may freely dispose as required by Article 9.1 of the Charter. The rapporteurs therefore conclude that the current system does not comply with requirements of Article 9.1.
Local authorities' financial resources shall be commensurate with the responsibilities provided for by the constitution and the law.
This provision requires that financial resources of local authorities should be in balance with the responsibilities assigned to them. As the Contemporary commentary further clarifies, this paragraph enshrines the so-called “principle of commensurability” of local authorities’ financial resources. This means that the resources available to local authorities should be sufficient and commensurate with their functions and tasks and the revenues and mandatory tasks of local authorities should be balanced to ensure that the financial resources available to those authorities are satisfactory in comparison to the tasks assigned to them by law.
During the delegation meetings with member of central and local authorities it was evident that there was a great discrepancy in the understanding of adequate funding in relation to number of tasks between local and central authorities. Members of national authorities were more inclined to consider that local authorities were adequately financed while locally elected officials were convinced that their tasks were underfunded.
As is evident from the Law on Township Councils, local authorities of San Marino have a very narrow scope of responsibilities and limited possibilities to independently decide what to do, when to do it and how to do it. The extremely low share of local government expenditure (which accounts for less than 1% of government expenditure) indicates that the funds allocated to local authorities are minimal.
In 2023 the total amount of all budget allocations to local authorities lies around 345 000€ increasing around 25% since the last monitoring visit 2017. Also, the ratio to total expenditure has gone down from 0.0448% in 2017 to a meagre 0.0012% in 2023.
In addition, the local councillors met during the visit repeatedly described increasing workload of the assigned tasks as well as pressure from local population to provide more services and assistance. Subsequently, local authorities are heavily dependent on volunteers and voluntary work to provide the needed services and administrative support. Therefore, in the opinion of the rapporteurs, it is highly questionable if local financial resources are in balance with the responsibilities assigned to local authorities.
In light of the above-mentioned, the rapporteurs consider that current system in San Marino does not comply with Article 9.2 of the Charter.
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.
The Republic of San Marino has not ratified Article 9.3.
The Charter does not state that a local authority’s own resources must contain a uniform proportion of local taxes, but it does make it mandatory for at least part to derive from local taxes and charges.
As a general comment on Article 9.3 and Article 9.8, the Ministry of Finance highlighted during the consultation procedure that San Marino “is a unique example of a fully centralised welfare state”, where the central government covers all operating costs for essential services such as pensions, healthcare, and education, considering the limited size of its territory and population.
Notwithstanding this, while some municipalities in San Marino occasionally collect fees for the use of facilities they own, local authorities in San Marino do not have any tax-raising powers.
Consequently, the rapporteurs conclude that the situation in San Marino is not compliant with Article 9.3 of the Charter.
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.
Article 9.4 relates to the necessity for local authorities to have a diverse source of income to be able to withstand both internal and external fluctuations in economics. Moreover, as stated in the Contemporary commentary diversification of financial resources should enable them to keep pace as far as practically possible with the real evolution of the cost of carrying out their tasks
The Contemporary commentary highlights that the diversification of local income helps local authorities to react promptly to changes in costs of local services and protects them from inflation or unexpected economic difficulties. In practice, local authorities’ revenues are directly linked to their expenditure and to their power to take decisions on it, so the diversification of revenues is a key aspect of financial autonomy, reflecting the ability to generate or adjust revenues. The principle of diversification also implies leeway to adopt decisions on various sources of income and is a further dimension of local self-government.
As previously mentioned, local authorities in San Marino have no fiscal powers. The only major source of income for municipalities are state grants. Funding is decided centrally on a yearly basis based on the Law on Township Councils and further stipulated in the Budget law no. 171/2022 for the 2023 financial year.
Consequently, the rapporteurs consider that the arrangement currently in force in San Marino does not comply with Article 9.4 of the Charter.
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.
Article 9.5 stipulates that some kind of financial equalisation mechanism should be integrated into systems of local self-government. As pointed out in the Contemporary commentary, this provision addresses the question of the financial situation of municipalities that are financially disadvantaged due to their being located in economically or geographically weak areas (transition, mountain or island regions), or simply because they are too small to obtain the amount of resources needed to perform their tasks. Its main purpose is to counteract the effects of unequal distribution of potential sources of finance. This may be achieved either through direct transfers from central government or through redistribution between local authorities.
The Article also aims to make sure that local authorities have the necessary financial resources to cover the costs of their functions as well as individual costs of each municipality in running the system of local authorities.
As the Contemporary commentary further clarifies, financial equalisation may take different forms, usually involving a system of transfers to the poorer authorities. A system of polynomial calculation is usually employed, under which different variables and quantitative and statistical data are harmonised. For the purpose of reducing financial disparities between local authorities, the Charter also calls for transparent and predictable financial equalisation mechanisms that must respond to changes in the economic climate.
According to the data provided by the Ministry of Finance, the state finances the costs of running local authorities such as properties expenditure related to maintenance and cleaning (including water, gas, electricity, waste management).
As stipulated in Article 33 of the Law on Township Councils, 50% of the annual fund for local authorities is assigned to them based on the proportion to the number of residents in each Township, thus compensating for differences in expenses in individual municipalities. The rapporteurs consider that this mechanism can be regarded as a basic equalisation arrangement, which only takes account of the number of residents.
In light of the above mentioned, the rapporteurs consider that the arrangement currently in force in San Marino is partially compliant with Article 9.5 of the Charter.
Local authorities shall be consulted, in an appropriate manner, on the way in which redistributed resources are to be allocated to them.
Article 9.6 refers to the general principle of consultation found in Article 4.6. Article 9.6 relates explicitly to the system for distribution of resources to local authorities. As stated in the Contemporary commentary, consultation must take place on the way in which financial resources are to be distributed to local authorities by higher-level authorities.39 It further stipulates that under Article 9.6, consultation is not merely a compulsory procedure that has to take place in a timely manner before a final decision is made. It must also cover the manner in which a decision is made and the criteria for doing so, not only the decision itself.
Furthermore, local authorities should be consulted “in an appropriate manner”, which means that sufficient time must be available for consultation based on adequate information provided to local authorities. Since consultation will be about the allocation of resources, procedures must ensure openness, transparency and fairness.
Consultation regarding financial distribution is explicitly integrated into Article 24 as well as Articles 31, 32 and 33 of the Law on the Township Councils.
The representatives of local authorities as well as representatives of individual ministries and agencies met by the delegation confirmed that local authorities are consulted in relation to the distribution of funds both ordinary and extraordinary. However, there was some scepticism on behalf of local authorities as for the effectiveness and usefulness of this consultation.
In light of the above-mentioned, the rapporteurs consider that the situation in San Marino partially complies with Article 9.6 of the Charter.
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 9.7 concerns grants transferred to local authorities from higher authorities and distinguishes between “earmarked” and “non-earmarked” grants. The Contemporary commentary warns that the trend towards earmarked grants might limit local authorities’ ability to exercise policy discretion. Earmarked grants are subject to tighter government control.
It expresses regret that, in some countries, earmarked grants are awarded not only for the completion of specific projects (usually in the case of joint-financing schemes) but also even for financing specific operating costs (such as paying the salaries of primary school teachers). In those cases, the scope of local self-government is severely reduced. The approach involving fewer earmarked grants is therefore supported and encouraged by the Charter as the one that best complies with the principle of local self-government.
The Contemporary commentary further notes that the ratio between two types of grants is seen as a relevant indicator for measuring financial autonomy of local authorities.
In San Marino, funding for local authorities is almost exclusively based on grants. As stipulated in the Budget law no. 171/2022 for the 2023 financial year:
- Chapter 1-2-3810 “Fund for the functioning and emoluments of the Township Councils”. The amount allocated for the 2023 financial year is 330 000€ (Article 33 of Law no. 158/2020).
- Chapter 1-2-3812 “Special leave for Heads of Township Councils”. The amount allocated for the 2023 financial year is 5 000€ (Article 35 of Law no. 158/2020).
- Chapter 1-2-3820 “Contribution for the financing of market management” (introduced by Law no. 130 of 26 July 2010 and Article 33 of Law no. 158/2020). The amount allocated for the 2023 financial year is 13 790 €. (Subsequently repealed by Article 36 of Delegated Decree no. 50/2024 as of 1 July 2024). However, there is the intention to reintroduce it.
From the above it follows that that most funding for local authorities is ear-marked, which, in the opinion of the rapporteurs, further reduces the scope of local autonomy.
During the consultation procedure, the Ministry of Finance argued that direct State funds are designed to supplement the resources earmarked for major infrastructure projects, covering the additional expenses that the local communities have to bear to ensure the quality of services and liveability of the territories and such funding allows local authorities to play a key role in mediating between citizens' needs and State policies. The Ministry considers that these funds allow local administrations to respond in a timely and flexible manner to the specific needs of the locality. However, the possibility of merging all direct State funds into a single chapter without any specific purpose limitation would be brought to the attention of the Minister.
In the meantime, the rapporteurs consider that the arrangement currently in force in San Marino does not comply with Article 9.7 of the Charter.
For the purpose of borrowing for capital investment, local authorities shall have access to the national capital market within the limits of the law.
The Republic of San Marino has not ratified Article 9.8 of the Charter
Article 9.8 refers to possibilities of local authorities to borrow for capital investment. Such borrowing enables local authorities to finance important projects. As stated in the Contemporary commentary, borrowing is an opportunity to increase resources for implementing projects needing long-term investment.41 The Contemporary commentary further notes that borrowing and possible restrictions on it are another dimension of local government, so the exclusion of local authorities from the national capital market may limit their autonomy.
Local authorities in San Marino cannot borrow on national and international markets.42 Consequently, the rapporteurs consider that the situation in San Marino is not compliant with Article 9.8 of the Charter.
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 10.1 refers to local authorities’ rights to create co-operation between themselves, either to reach more efficiency in delivering local services or to be more effective as in carrying out tasks beyond the capacity of individual local authorities. This general entitlement as explained by the Contemporary commentary is supplemented by the right to form consortia, i.e., to create separate organisations.43
182. Article 30 of the Law on Township Councils stipulates that a “Board of the Township Councils shall be established in order to represent in a unitary manner the petitions and prerogatives attributed to the Township Councils” (paragraph 1). The Board consists of the Heads of Township Councils. The Board may:
a) support, promote and encourage a democratic debate on local self-governments also through the establishment of relations with other local institutions in foreign countries, as well as with bodies representing local self-governments established in international organisations;
b) draw up projects, proposals and initiatives to be submitted to the Congress of State;
c) promote in a unitary manner the initiatives and powers provided for in Article 22 above.
Local authorities are also able, under Article 27, paragraph 5, to be involved in a civil action in relation to an environmental protection as a group.
During the monitoring visit, the local councillors expressed positive experience with the arrangement of inter-municipal cooperation and described it as useful both in relation to formal arrangements stipulated by law as well as more informal methods of communication and coordination.
The rapporteurs consider that the situation in San Marino complies with Article 10.1 of the Charter
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.
This Article deals with the promotion of common interests through formal organisations both internationally and internally. As explained by the Contemporary commentary, such associations play a vital role in representing and defending interests of local authorities and in some cases carry out activities on their behalf.
In San Marino, the Board of Township Councils, established in accordance with Article 30, paragraph 1 of the Law on Township Councils, plays the same role as national associations of local authorities in other countries.
The Board can “represent in unitary manner the petitions and prerogatives attributed to the Township Councils”. The second paragraph of Article 30 stipulates that “the Board may support, promote and encourage a democratic debate on local self-governments also through the establishment of relations with other local institutions in foreign countries, as well as with bodies representing local self-governments established in international organisations”.
The rapporteurs consider that the situation in San Marino complies with Article 10.2 of the Charter
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.
Article 10.3 of the Charter concerns the co-operation of individual local authorities with other local authorities in the international setting hence, establishing the right to engage in cross-border co-operation. As pointed out in the Contemporary commentary this right is another important form of co-operation between local authorities. This right is not incompatible with oversight on behalf of higher authorities.
Article 20, paragraph 4 of the of the Law on Township Councils, stipulates that Heads of “Township Councils may make short trips abroad for institutional purposes, after consultation with the Ministry of Foreign Affairs and the Ministry of Internal Affairs”. The same goes for Article 22, paragraph 5 with enables “Township Councils to establish direct relationships with bodies or administration in other States and with international organisations” this right is subject to higher authorities’ approval.
Consequently, the rapporteurs consider that the situation in San Marino complies with Article 10.3 of the Charter.
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.
Article 11 of the Charter relates to the rights of local authorities to defend in courts the principles of local self-government. This is of special importance in the context of lawsuits where rights and powers of local government are challenged or restricted.
As discussed in the previous monitoring report, Article 16 of the Declaration47, provides the Guarantor’s Panel with jurisdiction in relation to disagreements of competence between “constitutional bodies”. It is possible to interpret this provision as referring to legal standing of local authorities as well as higher-level authorities in such procedures. However, as to date no case has been brought before the Guarantor’s Panel on issues related to local self-government. During the monitoring visit, the local councillors mentioned the tradition of settling disputes without a recourse to judicial remedy.
As stated by Article 27 of the Law on Township Councils, the Councils have right to join criminal proceedings in relation to cases related to environmental protection.
“In criminal proceedings for Public Disaster, Risk of Disaster, Threats to Public Health through Deterioration of the Environment, Deterioration of the Natural Environment and Negligent Deterioration of the Natural Environment, the Township Council shall have the right to join the proceedings as civil party for offences committed in the territory under its jurisdiction in cases where the State does not join the proceedings as civil party. In the event that several Townships are involved, a civil action may be brought by two or more Township Councils or by the Board of the Heads of the Township Councils” (Art. 27, paragraph, 5). “For the purposes of paragraph 5 the Investigating Judge shall timely notify the Council of the existence of the criminal proceedings” (Art. 27, paragraph 6).
Furthermore, the Guarantor’s Panel grants the Township Councils (at least five) the power to challenge an ordinary law for constitutionality review.
The rapporteurs consider that the situation in San Marino complies with Article 11 of the Charter.
The principle of local government is not explicitly recognised in the constitution of San Marino.
