Paper/Speech Details of Conference Program for the 27th NISPAcee Annual Conference Program Overview WG1: Local Government Author(s) Jowanka Jakubek-Lalik University of Warsaw Warsaw Poland Title What are the Limits of Local Government’s Competences? Polish Municipalities between the Grasping Central Government and Unsympathetic Administrative Courts File Paper files are available only for conference participants, please login first. Presenter Jowanka Jakubek-Lalik Abstract Local government reform has been acknowledged to be one of the biggest successes of political transformation in Poland. Municipalities (gminy) gained strong powers and are now responsible for many public services of crucial importance to local communities. Their autonomy was guarded by legal, institutional and financial guarantees and strong local leaders. Carefully designed institutional framework of local and regional government seemed to be permanent and durable, guaranteeing strong decentralization and providing local authorities with substantial decision-making powers and responsibilities for vast majority of public services. Such a broad field for the functioning of the local government does not remain without interpretation problems. The consecutive central governments were finding common ground in their instrumental approach to local authorities’ independence. It was convenient for the state to decentralize problems and challenges, while keeping control over finance and other resources, as well as looking for ways to increase supervisory powers over local government. Another important controversy arises from the administrative courts’ interpretation of the constitutional principle of legalism, providing for the operation of public authority “on the basis of and within the limits of the law”, i.e. the possibility of making only such decisions and acts of authority, which are expressly permitted or ordered by law. However, the narrow interpretation in judicial decisions of administrative courts and the Constitutional Tribunal causes that this clause extends to “non-imperious” activities of local government (eg social activities). Meanwhile, the contemporary activity of local government goes far beyond the classical sphere of order and regulation (imperium), concentrating broadly on satisfying collective social needs and managing development. These spheres rely mainly on the use of non-commanding activities and the use of public property (dominium). In these situations, the legal basis of the administration's operation is much more relaxed than the classically applied principle to act only "on the basis of and within the limits of the law". Meanwhile, the entire line of administrative court judgements assumes, that the public task is only what has been positively and specifically defined in specific provisions, and the activities of a commune without such a provision are deprived of a legal basis. It turns out, therefore, that the liberation of municipalities from the mechanisms of top-down decisions and the adoption of narrow supervision based on the criterion of legality quickly began to move towards purposefulness, which makes the independence of municipalities de facto fictional. The paper aims at showing the Polish local government’s struggle both to resist the recentralisation tendencies, as well as the conservative approach of the administrative courts to the scope of its competences. This case study brings back the important question of the limitations to the local autonomy and core local government’s competences, which are relevant to the contemporary challenges of “illiberal”, or even authoritarian, shifts in some of the European countries. The result is a critical analysis of the attribution of competences and legal protection of local government’s activity.
