The General Code of Regional and Local Authorities brings innovations in the Supervisory Powers of the State over Local Authorities.
The relevant provisions are grouped in Part V of Book One to avoid fragmentation, which may wrongly give the impression that the representative of the State has a strong hold on the local authorities to the detriment of strengthening their autonomy. This is not the case in reality. It is important not to lose sight of the fact that decentralization implies devolution of powers and resources from the State to local authorities, with the State having a right to oversee the conduct of local affairs arising from the powers transferred.
The exercise of this oversight, known as supervision, is carried out, under the authority of the President of the Republic, by the Minister in charge of local authorities, as well as by the Governor for the region and the Senior Divisional Officer for the council, with both being representatives of the State respectively in the local authorities concerned.
As part of their supervisory powers, which are exercised through the control of legality of the acts of the RLAs and advisory support (Section 72), the representatives of the State come under the authority of the Minister of Decentralization and Local Development and not the Minister of Territorial Administration..
The control of legality means that the representative of the State limits himself only to the control of the regularity and conformity of acts of local authorities in relation to the law and instruments, to the exclusion of any assessment of appropriateness.
The scope of the acts subject to prior approval by the representative of the State, otherwise known as a priori control, is now limited in view of the impact of the areas concerned, such as the preservation and safeguarding of public assets and land. Section 76 of the Code specifically lists those. They relate to eight matters, namely:
- budgets, accounts and special expenditure authorizations, with a view to controlling expenditure and ensuring compliance with statutory limits and compulsory expenditure;
- loans and loan guarantees,to ensure the viability and sustainability of the local authority’s debt, given its potential impact on the State budget;
- international cooperation agreements, because international relations and diplomacy are a matter of State sovereignty, and the commitments entered into by a local authority could have repercussions on the State;
- land matters, since the State is the custodian of all land in accordance with Ordinance No. 74/1 of 6 July 1974 to establish the land tenure system and administers it in the interests of the population and other legal entities;
- delegation of public service beyond the current term of office of the deliberative organ of the local authority, in order to ensure optimal management of the public services of the council and to prevent any concession to the detriment of the council and to the benefit of the Chief Executive who may no longer be in office at the next term of office;
- agreements on the execution and control of public contracts, subject to the relevant limits provided for by the regulations in force, with a view to ensuring the regularity of contracting, taking into account the consequences which could result from it;
- recruitment of staff in accordance with the conditions laid down by regulation, in order to control the pace and sustainability of recruitment within the capacity of the council, and to prevent the creation of legal relationships that produce effects when the council does not have the capacity to assume them;
- development and land use plans, to ensure the conformity and consistency of these plans with national plans.
It is therefore clear that ex post facto control, a principle affirmed since the laws of 2004, has been reinforced by the Code. As a result, the principle of free administration of RLAs is reinforced, with the corollary of greater autonomy affirmation.
Legality control is carried out by means of transmittal, including electronic means, of acts of local authorities to representatives of the State who have limited time to examine them. The latter may refer the act to the court or, in the case of manifestly illegal acts, annul it. The annulment decision may be challenged in court.
Moreover, RLA executives are no longer defenceless against supervisory authority actions. They can now, in the event of refusal of approval, refer the matter to the competent administrative judge whose decision to overturn the refusal will be tantamount to approval.
With regard to support and advice, through the support of State services, it is aimed at the effective exercise of devolved powers and harmonious development based on national solidarity, regional and council potential, inter-regional and inter-council balance. In this respect, the State and its services (deconcentrated services, public establishments and enterprises) are responsible for providing advisory support to the local authority. It consists of providing advice, opinions, suggestions and information to the local authority in the exercise of their powers. This will be done upon request of the local authority or spontaneously by the State or its branches. It is understood that the advice and opinions are of an advisory nature and are in no way binding on the local authority. Moreover, they are free of charge.