COMPARATIVE ANALYSIS OF MUNICIPAL SERVICES István Hoffman PhD, dr. habil. Associate Professor Eötvös Loránd University (Budapest), Faculty of Law Department of Administrative Law hoffman.istvan@ajk.elte.hu Block seminar INTRODUCTION •General theory of public services Public services and public law •Traditional approach: public administration as public power •Service provider role of the public administration •Changing role of the public administration in the 20th century: Forsthoff: administration as service provider Different approaches of the concept of public service •Different sciences à different approaches •Economics: the economic elements of the public services •Sociology: public services and public needs •Administrative sciences: public services and their management •Jurisprudence: public services as legal institutions and legal phenomena •Complex, multi- and interdisciplinary analysis is required. Public services as services •Economics, sociology: –Broad approach of services: „the thrid sector” –Government services as services •Administrative sciences –Broader: based on the concept of government services –Broad: services excluded the public power –Narrow: only the personal nature services, cash benefits excluded •Jurisprudence: –Legal definitions, different approaches in different rules • – Public services and the ‚public’ (1) •Economics: –Public goods – mixed goods – private goods –Market failures and public services •Monopol and oligopol structures •Externalities •High transaction costs •Information asymmetry •Sociology and social policy: –Concept of governance: from consumer to citizen –Concept of best value –Accountability –Co-creation: nothing about us without us – • Public services and the ‚public’ (2) •Definition of public services: practically by legal norms •Procedure of the definition is regulated by the law •Constitutions, acts as tools of the definitions •Concepts on the role of public adminstration: –Provider state –Regulator state à share of the role (regulation – provision – supervision) –Cooperating state – Models •‚Service public’ –French based model –Broad concept: organisation, activities, ethics •Daseinsvorsorge –Organisation centered •Public service –Public and private •NPM and after… –Changes of the NPM –Post-NPM: Good Governance, NPS, Neo-Weberian State MUNICIPAL MODELS •Municipal models in the liberal democracies Anglo-Saxon model •Ultra vires model and its transformation –Concept of sovereignty –Transformation in England: from ultra vires to general clause model –United States: Dillon, home rule, municipal home rule •Municipal tasks: a monist approach •Organisation –Different approaches: cabinet system, city manager, elected mayors •Finance and asset: broad (legal) autonomy •State supervision: fragmented, but at the central level • French (Latin) model •General clause (based on the concept of undivided state sovereignty) •Dual task system –Municipal tasks –Delegated (state) tasks •Organisation –Strong mayors, weak councils, inter-municipal associations •Finance and asset: strong central powers •Supervision: prefectures! (Changes after the 80s…) German model •General clause (inherent municipal powers) •Dual task system •Different municipal administration systems •Inter-municipal associations: obligatory assocaitons (!) •Finance and asset •Supervision: developed dogmatics (legal and professional supervision) Scandinavia •A continental model •Merge of the communities •Wide range of municipal tasks •Organisation: significant role of the municipal committees COMPARISON OF MUNICIPAL TASKS • The conceptual framework of the analysis Introductory remarks •Analysis of the public administration: –Different approaches –Different elements •Legal comparison and public administration –The main field of the comparative law –The evolvement and development of •comparative administrative law •comparative municipal law • Jurisprudential comparison •Different levels of the comparison –First level: country studies –Second level: comparison of the legal institutions •Formerly the majority of the books on comparative legal analysis: country studies •Changing methods: see Bogdandy et al. (2014) and Rose-Ackermann et al. (2017) • Comparative municipal law •Federal countries •Approaches of the municipal law –Broad sense: Anglo-Saxon –Narrow sense: continental –Convergence of the systems (see Localism Act 2011) •The subject of the analysis –Majority of the analysis: narrow sense: focused on constitutional status, organisation and general questions –Broad sense: comparison of the municipal tasks is part of the analysis Comparative local governance •Based on the methods of political sceinces, economics and partly jurisprudential elements administrative sciences •Concept of subnational (local and regional governance) (blur of the distinctions in administrative and constitutional law) •Approaches –Municipal reforms (firstly NPM, form the 2000s post-NPM, Good Governance, NWS based etc.) –Territorial aspects (economies of scale, borders, merge of municipalities) –Decision making – • • Why we need comparative municipal law? •The significance of the legal institutions •Questions on the nature of the subnational units •Broad sense: –Organisation is important, BUT –…the analysis of the tasks are required (see the example pf Hungary) •Multidimensional model First dimension: constitutional staus and traditions •Constitutional status is important: the framework of the system –ultra vires vs. continental model –Convergence of the models •Multi-level governance systems (and the European integration) Second dimension: the role of the sectoral policies and approaches •The tasks of the municipalities are strongly impacted by sectoral policies •Interaction between the sectoral policies and the constitutional model of the municipalities –Interaction between the Nordic municipal system and the Nordic welfare model •Spatial structure –Tiers of the local governments as influencing factor –Size of the municipalities, economy of scale problems •Centralization •Merge of municipalities •Inter-municipal cooperation • • Third dimension: model of the public service provision system •Municipal tasks are strongly influenced by the service provision role of the given state •‚Les Trentes Glorieuses’ and the welfare state (interactions between the service provider role and the municipal organization) •The influence of the reforms –NPM –Good Governance –Public Choices –NWS Multi-dimensiopnal analysis •Jurisprudential analysis have advantages! •Focuesed on the analysis of legal institituions on municipal tasks •Multi-dimensional approach –Analysis of legal institutions on organization (constitutional status) –Analysis of the sectoral legal institutions –Analysis of rules on spatial structure –Analysis of the legal institutions of the public service system • MUNICIPAL PUBLIC UTILITIES •Public utilities as municipal tasks Public utilities and models of municipal tasks •It depends on the concept of the public service provision (the impact of the municipal – organisational – system is limited) •Main models: –Anglo-Saxon –German (Daseinsvorsorge) –French (service public) •Main questions: –Private or public providers –Definition of the price of the public service –Supervision by authorities / agencies Water and sewage utilities •Different models •It can be classified: centralisation and concentration: –First-tier centered (Hungary) –Regional-based (UK, France) –Shared responsibilities (Germany) •Secondly: private and public roles –Dual (parallel) model (Public/private) à Germany –Private model with a strong supervision ofthe public administration (UK) –Public-based model with(the possibility of) private providers Waste management (1): responsibilities Primarily first-tier based model Shared responsibility Primarily regional based model For example: Austria, the majority of the German provinces (Länder) etc. For example: France (commune – département – région) Some of the German provinces (Länder) For example: United Kingdom (especially England: counties) Spain Correction tool: voluntary associations (for example in several Austrian provinces), obligatory associations (for example: Salzburg) Hungary: centralised model with IMA Correction tools in France: intercommunales (SIVOM, SIVU, CU) Waste management (2): financing •Models of financing –Tax-based models (for example Czechia, formerly Hungary) –Private providers under administrative control –Public models (with private providers) –Centralised model (Hungary) •Remunicipalitsation • Waste management (3): the impact of the EU regulations •Environmental law: the general requirements •Competition law (broad sense): –Rules on involvement of private sector –State aid of private sector –Landmark case: C-26/03 (Stadt Halle) based on C-280/00 (Altmark) • • •The principles of establishing prices and fees of waste management services District heating •First-tier based model •Especially in urban municipalities •Different solutions: –Public provider •Private form •Public utility –Provate provider under administrative supervision •Remunicipalisation • Public transport •Different tiers: –Local •First-tier municipalities –Regional •Regional municipalities •Inter-municipal associations •Service provision: –Public providers à see C-280/00 (Altmark) •In several countries: priority of public provision (?) •Corporation ownded by the municipalities •Central and local relations (trains…) –Private contractors –Definition of the prices • • Municipal roads •Models of responsibilities: –First-tier centered models (only the roads of the communities) –Second-tier centered roles (regional roads are maintained by regional governments) •Models: –Public providers à see C-280/00 (Altmark) •In several countries: priority of public provision •Corporation ownded by the municipalities •Local, regional and national roads –Limited role of the private contractors • Other municipal public utilities •Models: –Dominantly: first-tier based, but •Inter-municipal associations •Role of the regional governments –Role of the central administration •Models: –Public providers •Public utilities •Publicly owned corporations (and municipal holdings) –Private providers –Remunicipalisation –Prices and investments EDUCATION •The role of the municipalities in the field of education Models of the concept of public education (1) •French model –Based on the dominant role of the central government and its agencies –Shared responsibilites with the municipalities –Laïcité •Anglo-Saxon model –General (multi-purpose) local governments and single-purpose local goverments –Impact of the NPM based reforms Models of the concept of public education (2) •Mixed models –Shared responsibilites of municipalities and central government –School based staffing –Different solutions •German model •Scandinavian model Centralised model •Based on the primary responsiblitiy of the central government, but practically shared rssponsibilities •French model: municipal task: the maintenance of the educational buildings –Kindergartens, elementary schools: commune and intercommunales –Lower secondary education (collèges): counties (département) –Higher secondary education (lycées): regions (région) •Central government aencies in the counties and in the regions (regional based model): operation of the educational services •Private schools: different types of public contracts •French model: Romania, Spain (differences) •Transformation to a municipal based model: Italy Municipal based models •Germany –Shared responsibilities: different models of the provinces (mainly only elementary schools or elementarty and secondray schools) •Austria: centralised model, but elementary schools are maintained na doperated by the municipalities (but Gymnasiium: federal competences) •Multilayer models (within the municipal system): Norway, Latvia, Estonia •Main municipal responsibilitides: –Finland –UK à LEA (county-based) –USA: single purpose municipalities (school boards) • Municipalities and higher educations •Higher education: state task (tasks of the central governments à in federal countries: Member States or the federation) •Municipal tasks: –Cooperation –Aid –Integration into the local development system CULTURE AND SPORT •The role of the municipalities in the field of education Culture and public administration •The approaches of culture –Broad sense –Narrow sense •The role of the culture: –National identity –Local identity •Challenges: –Freedom of culture and the role of public adminustration Municipalities and culture •Core municipal tasks •Significant role of the local government system •Different models, but common elements: –Municipalities are responsible for the local libraries, institutes of community culture and local public collections (museums and archives) –Aid of the local culture –Autonomous structures Models •First-tier based model –Local community culture, libraries, museums –Inter-municipal associations or town-centered solutions –Additional roles of the second-tier local governments (if they exist) •Second-tier based model –Limited role of the first-tier municipalities –Main provider: regional municipalities Sport •Different approaches •Municipal roles: –Maintenance of the infrastructure –Aid and support •First-tier and regional based models HEALTH CARE •The role of the municipalities in the field of health care Main models of financing •Strongly influenced the welfare model of the given country •Main funding forms: –by taxes –by social insurance •special forms –decentralized (multipolar) funding system General role of the local governments in the service provision •Service buyer: mainly central government agencies (Germany: public bodies – Körperschaften) + private sector •Monitoring and supervision: –Central government agencies –Local government (municipal own competence) –Local government (delegated competence) • Provider and organiser roles: –main field of the local government health competences –Transformation of this role: during the 1990s and 2000s • Dominant role of the central government: general characteristics •In these countries: local governments: no or limited competences •Examples: –Purest form: United Kingdom à NHS –A specific form: Belgium (regions are responsible) –Central government centered administration in a strongly decentralized model: the Netherlands –France: narrow competences of the regions –Transition models: •Austria •Hungary after 2011 Challenges of the central-government centered model •Main disadvantage: inflexibility •Attempts to eliminate the disadvantages: –UK •NPM-based reform 1990/91 of the NHS: quasi competition and internal decentralization •The impact of Good Governance: the LGPIH 2007: LINks •Reforms in Hungary: road form a decentralized model to a centralized one 2010-2013 • Local government centered model: general characteristics •Local governments: significant provider and organizer roles à typically: basic health care: settlement level, inpatient (and sometimes outpatient) care: intermediate level •Examples: –Purest form: Nordic (Scandinavian) countries –Visegrád Countries: •Czech and Slovak Republic •Poland •Hungary: from a decentralised model to centralised one –Romania –Southern European countries –Germany: •Provision of services •Supervision of health care (in delegated competence) Challenges of the local government centered models •Main problems: –spatial structure and economy of scale: •merge of the settlements •widening the competences of the intermediate local-government level •inter-municipal associations •Change of model: Hungary –efficiency (and cost reduction): •NPM-based reforms, mainly: quasi competition (voucher systems) and competitive insurers •Extension of the health care (Pflegekassen in Germany) • SOCIAL CARE •The role of the municipalities in the field of social care Municipalities and social care •Core municipal tasks •Significant role of the local government system •Different models, but common element: municipalities are responsible for basic social care – First-tier centered model •Common element: basic social care belongs to the responsibilities of the first-tier municipalities •Different models: –Sweden: first-tier governments are responsible for social care –First-tier municipalities as providers of basic social care •Specialised care: –Regional municipalities –Central government and its agencies –First-tier municipalities and their inter-municipal associations Main role of second-tier governments •Different solutions •English model: LSA (county level) •French model: –Basic care: counties (or inter-municipal associations) –Spcialised care: regions •German model –Limited basic social care of the first-tier municipalities –Main role of the county governments (Kreise) –Role of the provincial (central) government – • MUNICIPAL DEVELOPMENT TASKS •Regional development Development issues •Local development: limited resoruces •Development tasks: mainly at regional level •Different models: –Federations à limited municipal development tasks (it is stronger in the decentralised federations…) –Regionalised countries –Inter-municipal model –Centralised model Main models of federalism (examples) Centralised Decentralised Symmetrical Belgium (resymmetrisation) Austria Germany, USA Asymmetrical Switzerland, Russian Federation (the ‚regions’) Canada Models of regional development •Centralised model –Greece and Hungary (formerly Ireland) •Municipal model –County-based model –Regional devlopment: •France (and the transofrmation of the French model) •Municipal regionalism in CEE: Poland •Regionalised model –The ‚una e indisibile’ Italy and its regions (multiethnicity and traditions) –Serbia: the case of Vojvodina (multiethnical region) •Inter-municipal model –from agencies to inter-municipal associations (development issue and regionalism in Ireland and Portugal –Urban governance (?) – – – • The hybridity and its borders. Failed reforms •Hybrid soultions: –The quasi-federalism in Spain and the case of Catalonia –The transformation of the United Kingdom: back to the real federalism? •Failed reforms: –Lack of the traditions à Hungary –Multhiethnicity as problem à Romania and Slovakia MUNICIPAL POLICING •Municipalities and policing The interpretation of policing •Different approaches •Common element: defense of the public order •French approach: ordre publique and its elements •German concept of Polizei •Anglo-Saxon countries: police à „to protect and serve” • The beginning: medieval ages •Feudal policing •The tasks of the municipalities •State polices: absolute monarchies Municipal police •Anglo-Saxon countries •General police tasks are performed by municipal bodies •State polices and and municipal polices Mixed model (Frenchapproach) •Nationalisation of the local police forces •State polices: Police Nationale and Gendarmerie Nationale (police juricaires) •After 1983: local police forces can be established (police administratifs) •Local police forces: under the direction of the maire (state and municipal task) Number of the local policie authorities in France in 2013 (after Donelly and Horváth) Number of municipalities Number of municipal police bodies 36 559 approx. 3 500 Number of the officers of the French police authorities in 2013 (after Donnelly) Number of the police officers Police judicaire Police administrative: municipal police Gendarmerie (Gendarmerie Nationale) National Police (Police Nationale) approx. 105 000 approx. 145 000 approx. 21 500 State police •German example: police is performed by state (and federal) agencies •Municipalities have duties only: –fire and rescue. CONCLUSIONS (?) •Models of municipal tasks Conclusions (?) •Multi-dimensional matrix: –Different municipal systems –Different welfare models –Different interpretation of public serrvices •Which elemenent has the main impact on the task system?