Constitutional Council Decision of 16 September 2016: Free Administration of Local Authorities
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Constitutional Council, free administration, local authorities, territorial reforms, NOTRe law, subsidiary intervention, local competences
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Abstract
This document analyzes the Constitutional Council's decision of 16 September 2016, which intervened in a historically contrasting context of territorial reforms. The decision's implications on the free administration of local authorities and the principle of subsidiary intervention are discussed. The document provides context on the NOTRe law and its impact on local authorities' competences.
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[...] The Constitutional Council has recognized that such an imposition by the prefect affects the free administration, but it has also neutralized this possibility by basing itself on the notion of general interest2. It is therefore in this line that the 2016 QPC is inserted: the free administration falls under a control at a minimum3 and, as a result, it does not call into question the decision-making capacity of local authorities, provided that the law justifies the pursuit of a general interest. [...]
[...] A decision intervening in a historical context of reform The decision of 16 September 2016 inserts itself into a historically contrasting and contradictory context of territorial reforms but favorable to the suppression of the general clause of Competences of departments, car estimated in accordance with the free administration of territorial collectivities A. A decision taken in a historically contrasting context of territorial collectivity reform If « France has needed a strong and centralized power to make itself. It now needs a decentralized power so as not to disintegrate», as stated by François Mitterrand1, these reforms were promoted for the general interest: decentralization is indeed part of the necessary administrative and territorial organization of a large, albeit unitary, state. [...]
[...] A decision that is not very protective of the rights and freedoms of local authorities The decision of the Constitutional Council of 16 September 2016 shows a more procedural than protective vision of the rights and freedoms of local authorities by this body constant in constitutional jurisprudence which is therefore quite homogeneous in this matter A. The principle of free administration of local authorities issued from the decision of the Constitutional Council: « a growing freedomdurale » What is the scope of this decision of conformity to the Constitution of article L.3211-1 of the CGCT? The decision of September seems to be little innovative. It clarifies the interpretation to be given to the contested article, without adding anything or innovating the reading of the principle of the free administration of communities. [...]
[...] 3211-1 of the General Code of Local Authorities, resulting from this law. Historically, in fact, each level of local authority territorial bbenefited from a clause, called general competence clause» who allowed him to intervene in local affairs on the condition that competence is not explicitly entrusted to another level of community». Such a provision had been strongly criticized in the past and the law on territorial community reform (RFT) of December had provided for its disappearance. However, the abolition not being self-evident, the MAPTAM law of January had reinstated the clause before the planned suppression in 2010 became definitive. [...]
[...] The Constitutional Council replied in the negative and specified that the article resulting from the law of 2015, and notably the words in the areas of competence that the law attributes to it», do not comport any unconstitutionality. To understand this reasoning, it will be opportune to analyze, in a first part, the context in which this decision intervenes and, in a second part, the scope of the decision which seems to be quite procedural rather than protective of the freedoms of the collectivities (II). [...]
