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Giovanni Boggero

Abstract

In the second Chapter the intertwinement between the international and domestic legal orders will first be outlined from the point of view of the Charter as a source of public international and EU law (§ 2.I.), thereby not avoiding to mention and to explain the very nature of the Council of Europe’s subsequent practice (§ 2.II.). Finally, the reception of the Charter as a source of law in the different domestic legal orders of Council of Europe member States will be examined (§ 2.III.). The strengths and the weaknesses of the “system of the Charter” will therefore be identified and expounded firstly focusing on the hierarchy of the sources of law, so as to expose readers to how the system interacts with the domestic legal orders and to what extent it might bring about changes of the constitutional frameworks of local self-government at national level.

Series:

Giovanni Boggero

Abstract

In the third Chapter, a definition of local self-government as a democratic institution (§ 3. I) will be provided. In Europe local self-government is in fact conceived as somewhere between an original freedom of local authorities and as a specific type of administrative discretion acknowledged by the State to its decentralised entities. At the same time, it is overwhelmingly coupled with the democratic nature of its governing bodies. From a theoretical point of view, local self-government is generally treated as a “bundle of sticks”, that is to say not as a single unitary thing, but as an assemblage of different powers, which ought to be constitutionally protected. A systematic reading of the nature and content of each of these guarantees will be provided (§ 3.II.). For each provision, the principle and right underlying it will be identified and isolated and it will be assessed whether and, if so, how it has embodied the common legal traditions of the signatory States as well as how the States which later ratified it have been influencing its interpretation. Special attention will be given to the theoretical influence of the German concept of local autonomy on the content of each guarantee. In fact, it will be submitted that the guarantees set out in the Charter mostly correspond to those enshrined under the German constitutional framework, at either federal or regional level. Furthermore, on the basis of the Council of Europe practice, it will be discussed as to what extent each principle and right applies equally in the member States and in which areas its application varies according to a State’s “margin of appreciation”, i.e. considering the different characteristics and traditions from country to country (e.g.: form of government, size of local authorities, local government model, etc.) or depending on financial, political or social circumstances.