Author: Manuela Söller-Winkler

Manuela Söller-Winkler was State Secretary in the Ministry of the Interior of the State of Schleswig-Holstein, Germany, until 2017. As a trained lawyer, she previously held various management positions in this ministry. For many years, her work focused on all legal and practical issues of local government. She is international expert of the U-LEAD with Europe Programme.

 

Executive Summary

Financial autonomy is a decisive factor for strong local governments. Local government as envisioned by the European Charter of Local Self-Government is only possible if and to what extent financial autonomy is granted to local governments in a legally binding manner. Two aspects are crucial here: on one hand, the guarantee of adequate own financial resources and, on the other, the competence to decide autonomously on the application of these funds.

The issue of financial autonomy in the context of strong local government has apparently not yet acquired the necessary importance in the political debate in Ukraine. Although the financial resources specifically of municipalities are a much-discussed topic, in many cases, the focus is on financial volumes as such, but not on the competence of the municipal authorities to decide on allocations autonomously, that is, on their direct responsibility. With regards to the financing of tasks to be performed by local governments, one reason for this is the insufficient distinction between own tasks, governing tasks and delegated tasks.

The financial resources of local governments consist to a very large extent of earmarked funds. In addition, the amount of funds allocated to them for the fulfilment of certain tasks is frequently and unexpectedly changed, resulting in uncertainties for the municipalities regarding their financial leeway.

As a result, the financial autonomy of Ukraine’s local governments is still too limited, which restricts their capacity to manage local affairs on their own and hampers greater accountability before their citizenry.

 

The situation, context and problem

The issue of adequate funding is a challenge at all levels of government. With regard to local governments, this is particularly important: the right to self-govern locally means that such governments must not only have adequately resources, but they should be entitled to such funds as their own resources to be used at their own responsibility.

Local governments are in the best position to decide how financial resources should be used in the interests of the local community. They are close to the residents of this community and they are directly accountable to these residents because of the democratic legitimacy of representatives who were voted for in local elections. Thus, the European Charter enshrines this guarantee of financial autonomy as a key element of the right to local self-government and lays down clear principles, defining both importance and scope.

In Ukraine, this topic is particularly important. In 1997, Ukraine ratified the Charter without adding any exception clauses. It has thus committed to a full legal and practical implementation of the principles of the Charter. Since 2014, the country has been making considerable efforts in its ambitious decentralisation reform. The strengthening of local government is playing a central role in this process. As the result of a comprehensive territorial-administrative reorganisation, municipalities were strengthened by amalgamation and by being allocated more competences and resources. In this sense, the issue of financial decentralisation and strengthening financial responsibility at the local level, the financial autonomy of local governments is high on the political agenda.

 

Methodology and approach

In this article, the importance and scope of the principle of financial autonomy of local governments enshrined in the Charter is first analysed by examining Art. 9 as one of the Charter’s key messages on local government. The Explanatory Report to the Charter will be used as a supplementary source for interpretation. Next, the current situation in Ukraine is described, primarily on the basis of the country’s current Constitution and applicable laws.

Finally, a comparison of the results shows which gaps need to be filled in Ukraine to achieve full compliance with the Charter on financial autonomy.

 

Key principles in the European Charter

 

Local Self-Government as guarantor of democracy and decentralisation of power

Art. 9 of the European Charter of Local Self-Government contains key principles specifying the importance and scope of financial autonomy for local governments. They should be understood in the light of the core principles on local government as a whole, which are enshrined in the preamble and in Arts. 3 and 4 of the Charter.

In the context of this article, certain statements are of particular significance:

• Local governments “with real responsibilities can provide an administration that is both effective and close to the citizen”. Therefore, “the existence of local governments is necessary, “… possessing a wide degree of autonomy with regard to their responsibilities … and the resources required for their fulfilment.” (Preamble)
• “Local self-government denotes the right and the ability of local governments, … to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population.” (Article 3.1)
• “Local governments shall … have full discretion to exercise their initiative with regard to any matter that is not excluded from their competence nor assigned to any other authority.” (Article 4.2)
•  “Powers given to local governments shall normally be full and exclusive. They may not be undermined or limited by another …authority except as provided for by law.” (Article 4.4)
• In terms of delegated powers, “local governments shall, insofar as possible, be allowed discretion in adapting their exercise to local conditions.” (Article 4.5)

 

Financial autonomy: The heart of local government

On this basis, the Charter specifically describes in Art. 9 the importance and scope of financial autonomy for local governments. The main principles are:

• “Local governments shall be entitled … to adequate financial resources of their own, of which they may dispose freely within the framework of their powers.” (Article 9.1)
• “Local governments’ financial resources shall be commensurate with the responsibilities provided for by the Constitution and the law.” (Article 9.2)

The issue of adequate financial resources is reinforced in Art. 9.5 with regard to financially weaker municipalities:

• “The protection of financially weaker local governments calls for the institution of financial equalisation procedures or equivalent measures that are designed to correct the effects of the unequal distribution of potential sources of finance and of the financial burden they must support.”

The right to dispose of the necessary resources largely under their own responsibility is again emphasized in Art. 9.7:

• “As far as possible, grants to local governments shall not be earmarked for the financing of specific projects. The provision of grants shall not remove the basic freedom of local governments to exercise policy discretion within their own jurisdiction.”

Regarding the composition of financial resources, Art. 9.3 of the Charter further states:

• “Part at least of the financial resources of local governments shall derive from local taxes and charges of which… the local governments have the power to determine the rate.”

These principles are complemented by the provision in Art. 9.6:

• “Local governments shall be consulted, in an appropriate manner, on the way in which redistributed resources are allocated to them.”

In its general key principles and the specific requirements of Art. 9, the Charter makes clear that financial autonomy is an integral part of local self-government as task autonomy cannot be achieved without financial autonomy.[1]

Even the preamble stresses the importance of local governments possessing the necessary resources.

The Charter’s key general principles emphasize the importance of self-responsibility for local governments, especially task autonomy. At the same time, they make clear that task autonomy and financial autonomy are inextricably linked: without financial autonomy, task autonomy cannot be effective.

Art. 3 clarifies that self-government means not only the right but also the ability to carry out public policies. The Explanatory Report notes in this respect that the term “ability” “expresses the idea that the legal right to regulate and manage certain public affairs must be accompanied by the means of doing so effectively.” This of course also includes financial resources.

Art. 4 explains that the powers of local governments should be comprehensive and must not be restricted or undermined. This means that financial self-responsibility should also be far-reaching. Restrictions on adequate financial resources and the use of funds prevent local governments from exercising their powers with the necessary autonomy.

On this basis, Art. 9 defines in concrete terms the principles that derive from the guarantee of local self-government and its relationship to the financial resources of local governments. Art. 9.1 makes it clear that financial autonomy consists of two core elements: first, local governments should have adequate financial resources of their own and, second, they should be free to dispose of these resources. Art. 9.2 states that the amount of financial resources is only adequate if it is commensurate with the responsibilities of local governments.

Other paragraphs in Art. 9 explain the importance of these principles for certain aspects of the financial resources of local governments.

 

No financial autonomy means no local government

Very clear conclusions can be drawn from these provisions regarding the requirements for local finances and the obligations of central governments in this respect:

• Local governments must have adequate financial resources that they can use on their own to exercise their powers. This includes the right to adopt and manage local budgets autonomously.[2] Only under these conditions can local governments shape local affairs and public polices for their constituents and take full political responsibility. After all, their representatives are elected by and responsible to local voters.

The Explanatory Report notes in its comments on Art. 9 and Art. 9.1, that “the legal authority to perform certain functions is meaningless if local governments are deprived of the financial resources to carry them out” and that “local governments shall not be deprived of their freedom to determine expenditure priorities.”

• The amount of financial resources depends on the scope and costliness of the tasks of a local government. It must not be the case, that a local government is unable to perform its tasks adequately because it does not have sufficient financial resources. The legal right to regulate and manage a substantial share of public policies under its own responsibility must be accompanied by the financial resources for doing so effectively.[3] In this sense, the Charter enshrines the principle, “funds follow functions.”

Whatever central government tasks are delegated to local governments, they must, of course, be accompanied by adequate financial resources.

• The more local governments are able to generate their own revenues, especially local taxes, fees and charges, the greater their autonomy, making it key to strengthen this aspect.[4]

The Explanatory Report notes about Art. 9.3 that “the exercise of a political choice in weighing the benefit of services provided against the cost to the local taxpayer or user is a fundamental duty of local elected representatives. It is accepted that central or regional statutes may set overall limits to local government powers of taxation; however, they must not prevent the effective functioning of the process of local accountability.”

• Centrally levied local taxes and shared taxes somewhat risk undermining local autonomy, so only those taxes levied by the local governments themselves are to be understood as local taxes in the Charter.[5]
• Nevertheless, all experience shows that it wlill not be possible for a local government to finance all its tasks from revenues generated locally. For this reason, local governments must additionally be given a share in national revenues. This is not at all objectionable: on the contrary, it reflects the financial responsibility of the central government to enable local governments to exercise their powers in the best possible way for the benefit of local citizens. In this sense, the role of the central government should be understood as that of a guarantor and protector of local self-government.

However, an essential principle must apply to the participation in national revenues: local governments should receive such funds as far as possible as own resources that they can use on their own responsibility, without any instructions or restrictions from central authorities. Any central government requirement regarding the use of certain funds is a restriction on financial autonomy and, therefore, the functional autonomy of local governments.

• Central government supervision of local governments should be subject to strict limits, as it must not interfere in the local affairs of local governments, even in the process of oversight. Art. 8.2 of the Charter clearly states that, in matters of local self-government, only the legality of an act should be subject to administrative supervision. This applies without restriction and, thus, also to the use and management of local governments’ own resources. Central government intervention in the financial affairs of local authorities should only be aimed at ensuring macroeconomic stability and sound financial management.[6] How tasks are executed may be supervised exclusively with regard to delegated tasks. This can furthermore only concern specific tasks and does not justify interference in local financial management as such. Art. 4.5 makes clear that local governments should also have discretionary powers to adapt to local needs when carrying out delegated tasks.
• With the same objective, Art, 9.7 provides that the financing of tasks of local governments through earmarked grants is, in principle, permitted, but should be used as cautiously as possible.  Earmarked grants are regularly linked to detailed guidelines for their use. The central government may, of course, control compliance with them and may reclaim funds in case of infringement.

By allocating funds for specific purposes, the central government has “golden reins” to steer local governments in line with its political priorities. However, in the spirit of the Charter, local governments should, where possible, set local priorities on their own responsibility.

The Explanatory Report adds in its commentary on Art. 9.7: “Block grants or even sector-specific grants are preferable, from the point of view of local authority freedom of action, to grants earmarked for specific projects. It would be unrealistic to expect all specific project grants to be replaced by general grants, particularly for major capital investments, but excessive recourse to such grants will severely restrict a local government’s freedom to exercise its discretion with regard to local expenditure priorities.”

• To remain accountable to their constituents and exercise their powers in a sustainable manner, local governments need reliable framework conditions with regard to their financial resources. This means, specifically, that local governments should have access to national revenues on the basis of objective, fair, transparent and consistent criteria, without being concerned about frequent and unexpected changes in the general conditions or reductions in certain allocations.[7]
• The same criteria should apply to the distribution of central revenues between local governments, but, above all, it should meet different needs. Weak financial resources should not be an obstacle to adequate task-fulfilment. Neither should a financially weaker local authority be forced to fall into excessive debt just to be able to fulfil its tasks adequately. Rather, low revenue opportunities and financial burdens should be compensated for. Art. 9.5 states specifically that there must be financial equalisation procedures or equivalent measures. This can be a vertical financial equalisation, whereby financially weaker municipalities receive a larger share of central revenues than financially strong municipalities. There may also be horizontal fiscal equalisation, under which financially stronger municipalities transfer part of their revenues to financially weaker municipalities.[8]
• The importance of all these requirements is underscored in Art. 9.6: the principle of consultation, which applies generally to all local government matters, is explicitly emphasised for all issues regarding the allocation of redistributed resources to local governments. The principle applies without exception, regardless of the sources or kinds of funds or the form of decision envisaged.[9]

In summary, the Charter treats financial autonomy as the right of local governments:

• to have their own adequate financial resources, commensurate with their responsibilities;
• to manage and use these financial resources on their own responsibility, without central government interference, in order to regulate and manage their own affairs effectively;
• to receive adequate funds to fulfil delegated tasks;
• to be strengthened in their ability to generate their own revenues;
• to receive a share of national revenues as their own, as far as possible not earmarked, resources, distributed on the basis of objective, fair, transparent and consistent criteria;
• to support, if they are financially weaker, through financial equalisation procedures or equivalent measures;
• to be consulted in an appropriate manner on all financial matters affecting self-government, in particular on questions of the allocation of redistributed resources.

Financial autonomy must not be undermined, such as by extensive central supervision or the excessive use of earmarked funds, but must be guaranteed and protected by the central government.

 

The Charter as applied in Ukraine

Ukraine ratified the European Charter in 1997 and has been making great efforts ever since to strengthen local government, with considerable success. In April 2014, the Ukrainian government adopted a “Concept of the Reform of Local Government and Territorial Organization.”[10]

Since then, territorial-administrative reorganisation, first at the local level and then at the county level, has been carried out and slated to be completed shortly. Territorial-administrative decentralisation has been accompanied by sector decentralisation, particularly in healthcare and education. As a result, the responsibilities of amalgamated municipalities have been strengthened and their resources expanded.

 

The law and local government in Ukraine

• The Constitution of Ukraine stipulates that oblasts, counties and municipalities constitute three different levels of local government. De facto, however, it is difficult to distinguish between local governments and state administration at the oblast and county levels. Although oblasts and counties have elected councils, they do not have their own executives. Instead, the decisions of their councils are implemented by parallel state administrations on their behalf. Moreover, the scope of their own self-governing tasks seems very limited, as far as they can be separated from central government tasks at all. The level of municipalities will therefore be the main focus of further consideration.
• In contrast to almost all other European countries that have ratified the Charter, local governments in Ukraine are not recognised as legal entities in law. Instead, their main organs, the council and the executive, are granted the status of legal entities by law.
• The legal responsibilities of local governments consist of their own self-government tasks only to a minor extent. The majority are delegated tasks. In addition, although Ukrainian law in principle makes a distinction between the self-governing tasks of local governments and delegated tasks, in practice, this differentiation is not made or no consequences are drawn from it.
• There are many unclear or overlapping responsibilities between local governments and local state administrations.
• With regard to administrative supervision of local governments, Ukraine’s Constitution and the Law on Local Government make clear that supervising the activities of local governments can be exercised only on the basis and within the limits of the powers and procedures provided for by the Constitution and other laws. Central authorities are not allowed to interfere in the exercise of the exclusive powers of local governments.

However, there is still no detailed legal framework for the implementation of supervision. For this reason, supervision is often carried out ad hoc by many different central agencies in an inconsistent manner, without making the necessary distinction between self-governing tasks and delegated ones. As a result, the expediency of decisions and actions taken by local governments often appears to be subject to supervision.

With regard to financial supervision, the current complex system disregards the necessary distinction between administrative financial supervision in the sense of Art. 8.1 of the Charter and other instruments of internal or external financial oversight, which, on one hand, could have more extensive control rights but no executive powers, on the other. As a result, all steps of local budget preparation and implementation seem to be subject to central supervision without clear limits on such supervisory powers.

• There are no clear and binding rules for the conduct of consultations. This applies to all local government issues, including financial matters. Meanwhile, the legal and financial framework for local governments is being changed frequently and unexpectedly. As far as the local governments or their associations have the opportunity to comment, it is not transparent how their arguments are reflected into the further decision-making process.

The scope of financial autonomy of local governments

• The legal framework for the budgets of local governments is provided by the Budget Code. Amalgamated municipalities are allocated 60% of personal income tax revenues and all revenues from the single tax, the corporate tax on municipally-owned enterprises and financial institutions, and local property tax, as well as different kinds of grants. They have a direct inter-budgetary relationship with the national budget.

As far as local governments receive financial resources through transfers, these are predominantly earmarked grants.

• With regard to the financing of delegated tasks, Art. 143.3 of Ukraine’s Constitution stipulates that the central government “finances the exercise of these powers from the State Budget of Ukraine in full or through the allocation of certain national taxes to the local budget, through a procedure established in law.” However, there is no clear procedure for determining needs and funds. Instead, it appears that the central government often unilaterally reviews the financial resources allocated for delegated tasks of local governments and then reduces them. Overall, the financing of delegated tasks appears to be insufficient.
• Local taxes and fees are established by local governments within the limits established in law. There is discretionary power to determine local tax rates, but it appears to be very limited in practice, presumably due to the central government's expectation that all local governments will make full use of their revenue options, that is, to set the highest possible rates. Since local governments do not have their own tax administrations, local taxes and fees are collected by central agencies.
• The financial equalisation system is based on personal income tax and corporate income tax. The main elements are basic and reverse grants. The basic grant is a transfer from the national budget to local budgets. The reverse grant is a transfer of funds from local budgets to the national budget to provide horizontal compensation.

Overall, the financial equalisation system appears very weak. This is particularly true for vertical equalisation. Only a small proportion of total government revenue is spent on this instrument. In short, financial equalisation is mainly achieved through horizontal equalisation, which is financed by local governments with revenues above the average. In addition, this horizontal equalisation system applies to municipalities and counties alike. Counties make hardly any financial contribution but benefit comparatively strongly from equalisation. As a result, the financial equalisation system weakens rather than strengthens municipalities.

 

Upcoming developments

There is apparently broad consensus in Ukraine that important steps still need to be taken. This concerns, for example, introducing a supervisory system that complies with the principles of the Charter, more clearly distinguishing between self-governing and delegated tasks, eliminating unclear and overlapping responsibilities, implementing appropriate consultation procedures regarding “all matters which concern [local governments] directly”  as per Art. 4.6 of the Charter, that will govern all questions of funding and developing clearer internal local government structures.

The financial situation must be strengthened in various respects to ensure the financial autonomy of local governments. At this time, plans are to complete territorial-administrative reorganisation in financial terms by giving all approved amalgamated municipalities direct inter-budgetary links to the national budget while excluding county budgets from the horizontal equalisation system.

In principle, opinion is that these changes require constitutional amendments. However, sufficiently broad consensus on their nature and scope has not yet been reached. In parallel to these considerations, a fundamental revision of the Law on Local Self-Government and the Law on Local State Administrations is being discussed.

 

Local financial autonomy in Ukraine: Where the gaps are

A comparison of the principles of the Charter and the current situation in Ukraine shows that in many aspects, local governments do not yet have the financial autonomy anticipated by the Charter:

• Local governments do not have adequate financial resources commensurate to their responsibilities that they may dispose of independently to carry out their own functions. So far, local governments do not even receive adequate resources to carry out delegated tasks. The main reasons for this include:
• the high risk of central government interference through extensive supervision because the number of self-governing tasks is very limited and the necessary distinction between local government tasks and delegated tasks is not being made;
• many unclear or overlapping and therefore not properly funded responsibilities;
• very limited ability to generate their own revenues;
• the vast majority of central transfers consisting of earmarked grants;
• the nature of shared taxes such as personal income tax is ambiguous: it is not clear whether local governments are free to use their income tax share to cover their own responsibilities or they must apply it to delegated tasks with corresponding central government requirements.

The ability to generate their own revenues is not far-reaching enough because the local tax base is very small. Furthermore, the decision-making of individual local government to determine local tax rates is limited and local governments are not able to collect local taxes and fees themselves.

Objective, fair, transparent and consistent criteria for the allocation and distribution of state funds are lacking. In addition, both the legal framework and central government decisions regarding the financial resources of local governments are frequently and unpredictably changed without a sufficiently transparent process to balance convergent interests.

The existing financial equalisation system is not sustainable enough. Vertical equalisation is too weak in Ukraine and the central government needs to provide this fiscal equalisation system with considerable financial resources on a permanent and reliable basis. At the same time, horizontal equalisation is not properly designed.  Excluding county budgets from the horizontal financial equalisation system would be a first important step towards improving the system. Furthermore, all financially strong municipalities should reliably make appropriate contributions to strengthening financially weaker ones.

Consultations on local financial matters, in particular about the allocation of redistributed resources, are often not timely, comprehensive or transparent. One reason seems to be that there is neither the legal obligation nor clear rules. Another reason could be that local governments are not recognised as legal entities. As a result, they are often treated only as “objects” and not as “subjects with their own rights” on an equal footing with the central government.

Last but not least, the principle that grants should, as far as possible, not be earmarked, is frequently violated.

 

Conclusion

Financial autonomy is a key principle and an integral part of local self-governing in the European Charter on Local Self-Government. It is composed of various building blocks that must be guaranteed in their entirety.

Without financial autonomy, there is no task autonomy, and local government cannot be guaranteed. Given this, Ukraine should enshrine the principles of financial autonomy in its Constitution and regulate their implementation in ordinary law in a comprehensive and binding manner.

The country still needs to take important steps to fully implement and secure the financial autonomy of local governments. Some important elements are already on the political agenda, but there are other aspects of financial autonomy that also need urgent debate and resolution, especially as regards:

• providing local governments with more financial resources of their own, commensurate with their responsibilities, that they may independently dispose of to manage their own affairs;
• providing local governments with sufficient resources to adequately fulfil all delegated tasks;
• establishing the necessary distinction between self-government responsibilities and delegated tasks with a clear preference for self-government tasks;
• introducing administrative supervision that is limited to verifying legality in the own affairs of local governments;
• removing both unclear and overlapping responsibilities;
• strengthening the ability and capacity of local governments to generate their own revenues through their own sources, to set rates and to collect these revenues;
• ensuring that state resources are allocated to and distributed among local governments on the basis of objective, fair, transparent and consistent criteria;
• ensuring that local governments are provided with a reliable framework that gives them financial planning certainty, avoiding frequent and unpredictable changes to the legal framework or central government decisions on their financial resources;
• improving financial equalisation systems by strengthening vertical equalisation and correcting horizontal equalisation;
• establishing binding rules for reliable consultation procedures on all matters of local government;
• reducing significantly the application of earmarked grants in favour of funds that local governments can freely dispose of under their own responsibility.

 

Copy editor: Lidia Alexandra Wolanskyj

All terms in this article are meant to be used neutrally for men and women

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Manuela Söller-Winkler has participated at the International Expert Exchange, "Empowering Municipalities. Building resilient and sustainable local self-government", organized by U-LEAD with Europe Programme in December 2019. Her speech delivered during one of the workshops is to a great extent depicted in this article. Despite its late publication, the article is still of significant relevance for the current discussion on decentralization reforms’ next steps in Ukraine.

 

In the name of the U-LEAD with Europe Programme, we would like to express our great appreciation and thanks for both inputs of Ms. Söller-Winkler. The article will be included in future online publication Compendium of Articles.

Compendium of Articles is a collection of papers prepared by policymakers, Ukrainian and international experts, and academia after International Expert Exchange 2019 and 2020, organized by U-LEAD with Europe Programme. The articles raise questions in the fields of decentralization reform and regional and local development, relevant for both the Ukrainian and the international audience. The Compendium will be published online in Ukrainian and English languages on the U-LEAD online recourses. Please, follow us on Facebook to stay informed about the project.

If you have any comments or questions about the Compendium of articles or this article in particular, please contact Yaryna Stepanyuk yaryna.stepanyuk@giz.de.