Vietos savivaldybių kompetencija ir jos kaita Lietuvoje 1990‒2013 metais

Abstract

There are many research papers on local self-government since 1990s till present in Lithuania. However, according to the author, there is a lack of research papers where the dynamic (changing) Lithuanian local self-government system would be analyzed systematically (i.e., not just a separate aspect (element), but the entire local self-government system consisting of separate and linked together aspects (elements)).
The author has published several articles in the academic journal “Public Policy and Administration”. In this article, the author presents an opinion and judgment based on more than twenty years’ worth of gathered knowledge about aspects of local self-government system, such as system of administrative-territorial units, the national and international legal acts regulating local self-government, the main definitions – local municipality and local authority – as well as their development throughout the period of 1990 till present and the like.
The aim of this article is to continue the systematical research of Lithuanian local selfgovernment system during the twenty three years (1990-2013) and determine other important aspects (elements) of local self-government system, which are largely discussed about in theory and practice – competence of municipality and it’s development during the period since 1990 till present day.
Summarizing the results, the author presents the following conclusions:
1. The importance of one of the key elements of the local self-government system, i.e. the competence of municipalities, is very significant: the principles or methods of legal regulation laid down for the competence of municipalities and applied by the State; the content and scope of the competence defined for municipalities ( i.e. the extent of powers in certain spheres of activity); the structure of the competence defined for municipalities (i.e. the relationship between the powers attributed to the groups of own (independent) competence and the competence assigned by the State); a variety of forms of implementation permitted to be applied; the volume of funds available from all possible sources in order to implement the competence and other elements may generally be considered to be the criteria of quality evaluation of the local self-government system in a given country to determine whether the country has a real (‘true’) local self-government or merely a declarative one.
2. To define the competence of municipalities (local authorities), the content elements of the competence are not sufficient. In order to characterize in detail the competence of municipalities (local authorities) of one country or comparably different countries, it is appropriate to apply the system of elements consisting of:
1) way of defining the competence of municipalities (local authorities);
2) grouping of the competence of municipalities (local authorities);
3) content of the competence of municipalities (local authorities);
4) forms and ways of implementation of the competence of municipalities (local authorities);
5) systems of supervision of the implementation of the competence of municipalities (local authorities).
3. The concept of competence of municipalities used in works of law sciences, public administration, political science and legal acts may be defined even in three ways. It is believed that the meaning of the concept of competence of municipalities as used in the Constitution of the Republic of Lithuania (Article 120(2)) comprises the totality of municipalities’ powers and other elements forming their legal capacities, laid down by the Constitution and laws, as well as the legal, economic conditions (guarantees) created for municipalities to implement the powers, where such conditions allow municipalities to independently solve local issues (or otherwise – to perform independent functions ) and to carry out the assigned state tasks (or otherwise – to perform the functions delegated by the State).
4. Since 1990, the view has been prevailing in Lithuania that regardless of the grouping of the competence (functions) of municipalities, the general (or otherwise – positive) legal regulation principle of prohibition must be applied in legal regulation of municipal activities: municipality (their institutions and agencies) may exercise only those powers, which are laid down by a law or another legal act and only in the way established by that law or legal act (ultra vires rule). However, taking into consideration the requirements laid down in Article 4 of the European Charter of Local Self-Government, it is more and more broadly discussed in Lithuania whether such principle of legal regulation, which is characteristic of the countries with the Anglo-Saxon (common) legal system and dividing of the competence of municipalities into compulsory and optional competence, is relevant for Lithuanian municipalities and the legal regulation of their activities.
5. Since 1990, Lithuania has gained some experience in grouping the competence of municipalities: the competence of municipalities is grouped according to the criterion of autonomy in decision-making as well as to the criterion related to the nature of activity. Since 2008, the competence (functions) of municipalities has been divided according to the first criterion into only two groups (independent and state-assigned functions), and according to the nature of activity – into three groups: local government execution, public administration and public service provision functions. However, such division of the competence of municipalities (especially according to the first criterion) casts some doubt on the compliancewith the requirements of the European Charter of Local Self-Government. Moreover, despite the fact that after the “abolition” of the group of functions of limited independence in 2008, followed by the transfer of the functions belonging to that group to the groups of independent and state-assigned functions, the part of independent functions (the number of such functions) has increased in the general structure of municipal functions and now accounts for more than 50 percent, the level of political decentralization in Lithuania is still far behind the level of political decentralization reached in other countries.
6. Throughout the whole discussed period, the tension between the state government and municipalities has been growing regarding the adequacy between the statutory functions laid down for municipalities and the financial resources appropriated for the implementation of these functions. The municipalities, when defending their own interests, and the Lithuanian Association of Local Authorities, when representing the common interests of the municipalities, have been taking a variety of measures: the Congress of Local and Regional Authorities of Europe was addressed, the Government was held liable by the court, etc. However, the situation has been improving slowly. Recommendation No. 321 of the Congress of Local and Regional Authorities of Europe of 21 March 2012, which is designed for Lithuania and adopted following the second supervision procedure carried out in 2010-2011, states that “municipalities do not have sufficient resources to deliver the services under their responsibility...” and recommends “to ensure the allocation of sufficient resources to local authorities, respecting the principle that resources should match functions and duties which are vested in local government.”