Denmark has a long history of local self-government. Since the middle ages there has been some form of local authority with shifting levels of self-government. In 1849 local self-government was given constitutional protection. Prior to 1849 the municipalities had only administered the school system and the poor-law system. After 1849 more and more legislation was passed, increasing the municipalities’ areas of statutory responsibility. Since the 1860s the municipalities have been undertaking tasks without statutory authority. This was unchallenged by Parliament and it evolved into the customary «local authority mandate». This mandate and its limits are based on general considerations and the rationale of local self-government.1The first local government reform was enacted by Parliament in 1970. The reform greatly reduced the number of the local authorities to 275 municipalities and 13 county authorities. The county authorities’ tasks typically required a larger population base than that of the average municipality or they required a higher level of specialisation. Both the municipalities and county authorities had taxing authority and non-statutory municipality authority. The second local government reform was enacted in 2007. The reform reduced the number of municipalities to 98 and replaced the 13 county authorities with 5 regions. The main idea behind the municipalities is that some tasks are better dealt with locally, because they require knowledge of local citizens’ daily concerns. The regions are not just large municipalities; they are a special kind of decentralised authority. The main difference between the former county authorities and the new regions is that the regions do not have a local authority mandate or any taxing authority. The county authorities had taxing authority, which made it
almost impossible for the national government to control the aggregate tax level in the country.
The most important aims of the reform were to remove taxing authority from the county authorities and to make clear distinctions between the tasks of the State, the regions and the municipalities. Almost all the former county authorities’ tasks have been given to the municipalities. The regions have been given one main task, to administer the health sector. Both prior to and since the reform there has been a debate about its expediency and legality.2The new reform has been much criticised and it has been accused of being a threat to local democracy and self-governance.
One of the consequences of the second local government reform is that the average municipality now has 55,000 inhabitants, compared to an average of 19,000 inhabitants before the reform. The municipalities now manage tasks of a magnitude that could just as well be managed by State authorities, for example integration and language education, employment and active employment efforts, environmental protection, schools, utilities and emergency services. It has been argued that it is very far from the original idea of local self-governing bodies managing local tasks to have such substantial administrative bodies managing many tasks that are traditionally those of the State.
As a result of technological developments the public authorities have undergone extensive digitisation over the last ten years. There is an ongoing debate about the extent to which the municipalities should embrace new technology, and how they should deal with the legal challenges of a digitised administration. Experts have estimated that the municipalities can achieve cost savings of EUR 14 million in the handling of mail alone, by sending e-mails to citizens via especially secure e-mailboxes.3The practical challenges are to develop good e-solutions and to motivate citizens to communicate with the municipalities electronically. The legal challenges lie in applying the normal rules of administration to digitised administration. It is interesting to ask what solutions a municipality must provide for its citizens if it decides to use digital communications exclusively. For example, is it sufficient to make computers publicly available in places like town halls and public libraries or must a municipality provide home computers for all citizens who cannot afford one?
The municipalities are responsible for all employment and active employment efforts in Denmark. During the next couple of years the municipalities must prove that it was right to give them full responsibility in this area. In the face of the current financial crisis and rising unemployment, this may very well prove to be a very difficult and expensive task.
Local administration in Denmark can be categorised in two groups; dispersed administration and decentralised administration. Dispersed administration consists of local departments of State bodies, which are thus part of the State’s administrative hierarchy, for example police districts. Decentralised administration consists of authorities elected by local people and is not part of the State administrative hierarchy. In the context of local government, it is only relevant to discuss decentralised administration. The most important examples of decentralised administration are the municipalities (Kommunerne) and the regions (Region-erne). There are 98 municipalities and 5 regions in Denmark. The municipalities and the regions are independent of the central government, so that the Ministry of Interior and Health cannot exercise control over them or issue administrative orders unless otherwise provided by law. The regions and municipalities are not placed in a communal hierarchy, but are independent of each other.
Local self-government is protected by Article 82 of the Constitution which state that: «Municipalities’ right to manage their affairs autonomously under the supervision of the State is regulated by an Act.»
This means that the municipalities’ autonomy cannot be overturned by law and that it must be substantive. The Constitution does not specify the extent of local autonomy and it is difficult to determine the minimum substantive threshold. The extent of the constitutional protection has been subject to intense debate for many years. Today, scholars broadly agree that it is impossible to determine the minimum threshold of local government authority protected by the Constitution, which means that taxing authority and the local authority mandate are not protected by the Constitution. The Constitution’s requirements can be described as meaning that the country must be geographically divided into smaller units, each with a degree of autonomy, and that these units undertake one significant task or a number of smaller tasks.4Denmark ratified the European Charter of Local Self-Government in 1988. To understand the level of protection given by the Charter, it is necessary to explain a basic feature of the Danish legal order. In Denmark, the Constitution has priority over regular legislation (both statutory and non-statutory), and legislative acts have priority over administrative regulations. The Charter has the force of a legislative act, which means that the legislature is bound to respect it, unless the legislature chooses to renounce the Charter by a law. The Charter has not had much impact in Denmark and it has only been relied on in legal argu-
ment once. In connection with the debate about the second local government reform, the Association of County Councils pleaded that it was contrary to Article 9(3) of the Charter for the new regional councils to be financed only by a State hospital tax. This argument was rejected, mainly because when depositing its instrument of ratification, acceptance or approval, each party to the Charter may specify the categories of local or regional authorities to which it intends to apply the Charter or exclude from its scope.5Furthermore, the Charter does not require there to be more than one level of local self-government, so that as long as Denmark has municipalities with taxing authority it is not in breach of the Charter.
In 2008, Denmark declared that in future the Charter would only apply to municipalities, and repeated that the Charter does not apply to Greenland and the Faeroe Islands. This was presumably in order to avoid future discussions about which local authorities the Charter applies to.
There are a number of other laws that contribute to the procedural framework of the municipalities; three of these are mentioned here:
– The Local Government Act is by far the most import legislation governing the municipalities. It contains the rules on how the municipalities are to be organised, meeting and voting procedures, the election and powers of mayors, financial administration, supervision, control and potential sanctions.
– The Local and Regional Government Election Act contains rules on election procedures and deals with the questions of who has the right to vote and the right to be elected.6[cb2][c03][c03][c37][c4b][c48][c03][c24][c46][c57][c03][c52][c51][c03][c50][c58][c51][c4c][c46][c4c][c53][c44][c4f][c4c][c57][c4c][c48][c56][c03][c58][c51][c47][c48][c55][c57][c44][c4e][c4c][c51][c4a][c03][c57][c44][c56][c4e][c56][c03][c52][c51][c03][c45][c48][c4b][c44][c4f][c49][c03][c52][c49][c03][...