Constitutional definition of the right to self-government in selected Central European countries

DOI: https://doi.org/10.71372/SGMG2200

Keywords: right to local self-government, autonomous competence, delegated competence, core of local self-government, abstract municipality principle, municipal autonomy

Abstract: This paper analyses the constitutional definition of the right to self-government in the Republic of Austria, the Federal Republic of Germany, and the Swiss Confederation. These are Central European countries in which there was no legal discontinuity between 1948 and 1989. The content of the right to territorial self-government is therefore broader and more detailed in the countries under review than in the Czech Republic. The article aims in particular to present those aspects of the right to self-government that do not exist in the Czech Republic. The common feature of the countries under consideration is the institutional protection of local self-government, under which the municipality as a type, and not each municipality, is protected. On the other hand, differences include the different content and degree of guarantees for local government units at the federal level in relation to the state and cantonal levels. The federal level is strongest in the Republic of Austria, while it is weakest in the Swiss Confederation. In the case of the Federal Republic of Germany, Article 28(2) GG plays a unifying role throughout the territory of Germany going beyond the minimum standard. The results of the analysis are briefly compared with the right to self-government in the Czech Republic. Among the most significant differences between the Czech Republic and the countries studied is the lower level of protection of the autonomous competences exercised by municipalities on the basis of the law. Strong protection of municipalities in the countries surveyed is not a general principle derived e.g. from the European Charter of Local Self-Government but only from the law of those countries. The fact that a certain part of independent powers is not protected in the Czech Republic may also be seen as positive when implementing necessary reforms, because Czech lawmakers are not overly constrained by the content of the right to self-government, as is the case in the countries we looked at.

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