In 1543, the unity of the Netherlands was established by Emperor Charles
V. The new state covered roughly the area of the current Benelux. The centre of the new state was in the south, with Brussels as its capital. After a rebellion under the reign of Emperor Philip II, son of Charles V, in 1579 the seven Protestant provinces of the Low Countries joined in the Union of Utrecht and declared their sovereignty. After the occupation in 1795 by the Patriots and the French, the Low Countries came under the reign of Napoleon and his family. From 1815 until 1830, the Belgian provinces were part of the Kingdom of the Netherlands, leaving it again in 1830.
In the Kingdom there were parishes, villages, towns, districts and other territorial units. As a matter of fact, local communities with their own authorities were known long before there was a State and a Constitution. That is why in constitutional doctrine, the autonomous competences of provincial and municipal governing bodies are considered to belong to them and are not attributed or delegated but only recognized by the Constitution. In 1848, the great statesman Johan Rudolph Thorbecke gave the Kingdom a new Constitution inspired by German administrative theories. In 1917-1919, through the inclusion of the general right to vote in the Constitution, the democratic principle was strengthened greatly. The Dutch Constitutions of 1814-1815, as revised from then until today, are good examples of types of historical constitutions. Developments until the present day can be described as amendments of the Constitutions of 1814-1815 and 1848.
Two new «organic» laws drafted by Thorbecke, the Province Act and the Municipality Act, came into force a few years after the Constitution of 1848. They were made to regulate the administration of the modern provinces and the municipalities, respectively. The Municipality Act of 1851 has been in force for
almost 150 years. In the early days of its existence, there were 11 provinces and approximately 1,200 municipalities. At present the 11 provinces still exist; a new one, named Flevoland and consisting of land gained from the sea, was added in 1986. Over time, the number of municipalities has been brought back to 418.1A new Province Act, as well as a new Municipality Act, came into force in 1994. These statutes were amended fundamentally again in 2006.
A significant political issue nowadays is how to strengthen public participation in provincial and municipal administration. The turnout for the last municipal elections (2010) was 54.1%; for the 2011 provincial elections2, it was
55.9%.3Politicians, at both the central and the local levels, are concerned about citizens’ interest in politics and look for ways to stimulate their participation and interest, as these are considered essential for public acceptance of political decisions, as well as for the shared responsibility for the local community.
The position of the mayor is also a theme that comes under discussion on a regular basis. The mayor is not elected, but rather appointed by the central government, which is an exceptional situation in Europe. The current situation in the Netherlands, however, does not differ much from that in other European countries. In practice, the local representative nominates two candidates to the Minister of the Interior, and the first candidate will be appointed; only in very exceptional circumstances and with due explanation may the Minister disregard the nomination. Nevertheless, until now there has not been a political majority in the national Parliament so as to introduce the elected mayor into constitutional law. The only provision that has been made is the abolishment of the constitutional requirement of an appointed mayor, but the appointment provisions in the Municipality Act still stand.
The form of government of the (European part of) the Netherlands is that of a decen tralised, unitarian state. This means that, according to the Constitution
of the Kingdom of the Netherlands ([c2a][c55][c52][c51][c47][c5a][c48][c57][c03][c59][c52][c52][c55][c03][c4b][c48][c57][c03][c2e][c52][c51][c4c][c51][c4e][c55][c4c][c4d][c4e][c03][c47][c48][c55][c03][c31][c48][c47][c48][c55][c2d]landen), in addition to the national public authority, there are other public authorities with their own competences and their own constituencies. These other public authorities have competen
ce for a specific territory or for a specific function (e.g. water boards). The ones with a general competence to govern their own territories are those of the provinces (provincies) and municipali ties (gemeenten). In Dutch constitutional law, the State, the province and the municipality are considered public legal entities that act through their governing bodies. The representative governing bodies at the local level are the Provincial Council (Provinciale Staten) and the Municipal Council (Gemeenteraad or Raad). The executive bodies for the province are the Board of the King’s Commissioner and Provincial Aldermen (College van Gedeputeerde Staten) and the King’s Commissioner (Commissaris van de Koning), whereas the municipality’s executive organs are the Board of Mayor and Aldermen (College van Burgemeester en Wethouders) and the Mayor (Burgemeester).
Although strictly speaking it is not correct, as there is no constitutional hierarchy amongst them, the provinces and the municipalities are often still referred to as «lower» bodies, with respect to the natio
nal State as the «higher» body. One could define this structure as municipalities being the first tier and provinces the second tier, with the State as the third tier of government. On 1 January 2011 there were, as stated before, 12 provinces and 418 municipalities in the (European part of the) Netherlands, of a total population of over 16.6 million persons and with an area of 41.543 km², resulting in a population density of 491 inhabitants per km².4
The European Charter of Local Self-Government (hereafter referred to as the Charter: [c28][c58][c55][c52][c53][c48][c48][c56][c03][c2b][c44][c51][c47][c59][c48][c56][c57][c03][c4c][c51][c5d][c44][c4e][c48][c03][c4f][c52][c4e][c44][c4f][c48][c03][c44][c58][c57][c52][c51][c52][c50][c4c][c48]) came into force for the Netherlands on 1 July 1991. The Dutch government first submitted the Charter to Parliament for implicit approval. The chair of the Chamber of Representatives (the Second Chamber: Tweede Kamer), however, informed the government that this Chamber thought it necessary for the Charter to be submitted to Parliament for its explicit approval, which was finally given in the
autumn of 1990. The act that contained this approval was published on 15 November 1990 and entered into force the next day. Then the act of acceptance was deposited with the Secretary General of the Council of Europe, and according to its Art. 15, paragraph 3, the Charter came into force for the Netherlands on 1 July 1991.
The act of acceptance contained a declaration by the Dutch government saying that the Charter would apply to Dutch provinces and municipalities. This contribution, however, will focus on local government, i.e., on municipalities. The central government also declared that it considered Art. 9 of the Charter to apply only to the financial resources of local authorities; this declaration was meant to ensure that municipalities and provinces could not claim additional financial support from the State for employment conditions of their staff, as per Art. 6, paragraph 2 of the Charter.
In addition to the declarations, the Netherlands voiced reservations regarding four paragraphs of the Charter: Art. 7, paragraph 2; Art. 8, paragraph 2; Art. 9, paragraph 5; and Art. 11. In the latter case, it was thought necessary as there was no general recourse to the judiciary for local authorities. Although there still is no general right of recourse, in this author’s opinion the reservation could be abolished, as Dutch law nowadays gives provinces and municipalities the right to appeal to a judge when a decision concerns their interests. To date, The Netherlands has withdrawn neither the declarations nor the reservations.