The Spanish Local Government System: Municipalities and Provinces

Posted on Oct 5, 2024 in Law & Jurisprudence

Events Since the Beginning of Constitutionalism

In 1975, legislation paved the way for what would become the local system. Law 41/19975, the Statute of Local Government of November 19th, was created as a provisional measure. While it didn’t fully repeal previous legislation, the Spanish Constitution of 1978 (EC) marked a radical change, though it wasn’t fully developed legislatively until 1985.

The EC aims for maximum decentralization at the local level, recognizing the autonomy of local entities and promoting direct elections of their governing bodies. Existing local rates (the common system) are maintained, and the creation of new entities is enabled.

Background

The 1978 Constitution

a) Common System Entities

The common regime entities are municipalities, provinces, and islands (Art. 140 EC), granted full legal personality and independence (Art. 141).

The Balearic and Canary Islands (Art. 141.4 EC) have an inter-local structure.

All local authorities also oversee inframunicipal entities, which include villages, towns, hamlets, neighborhoods, and parishes.

Also belonging to the common system are supra-local authorities.

Counties (Arts. 141.3 and 152.3 EC) are created by the Autonomous Communities (CCAAs) and designed to manage common interests of several municipalities in the same area with shared characteristics. The Constitutional Court has not agreed to absorb development that integrates municipalities.

Art. 152.3 EC: By grouping bordering municipalities together, the Statutes may set up their own territorial constituencies which shall enjoy full legal personality.

  • Metropolitan areas: Created specifically for urban management and services common to municipalities within large conurbations. Art. 43 of the Basic Law Regulating Local Government (LRBRL) provides for their creation by the CCAAs and regulation by regional legislation.
  • Associations of municipal services: Associations created voluntarily by various municipalities for the joint management of services or works within their competence. Art. 44 LRBRL sets basic criteria for their creation. They can be created even among municipalities in different provinces.

b) New Local Entities

The EC, along with existing local authorities, allows for the creation of new entities (Art. 141.13 EC). Consequently, some CCAAs have created rural parishes in Galicia and Asturias, and the Catalan region.

In conclusion, the EC model supports a wide variety of local entities, recognizing both existing ones and the possibility of CCAAs creating new ones. However, three types of entities enjoy full support from the EC: municipalities, provinces, and islands.

2. Local Autonomy

Position of Local Authorities in the EC

For the EC, local authorities are primarily public administrations and thus legal persons subject to administrative law and the control of administrative courts.

The integration of senior members is through universal suffrage, a manifestation of the democratic principle of political participation that distinguishes it from other authorities.

Furthermore, the political nature of local political power is not sovereign but derivative. This means its activity must be subject to the law and the courts. Consequently, local authorities do not have legislative powers but regulatory ones.

Local Autonomy

The EC also mandates that the legislature ensure a core competency: managing the interests of the local area. This core competency is essential for local autonomy, which implies that local authorities operate under their own responsibility, subject to judicial review.

Unlike the autonomy of the CCAAs, where the EC provides powers to specify their scope, in the case of local authorities, the EC leaves it to the legislature to specify the necessary skills.

Local government is now understood differently: its terms can be altered according to needs.

Apart from local government, sectoral laws also affect the powers of local authorities.

The CCAAs may also intervene to affect these skills.

Until Law 7/1985 (LRBRL), there was no standard to address the existing loopholes. This law serves two purposes:

  • As a law containing basic state laws (Art. 149.1.18 EC) affecting local authorities.
  • As a rule authorizing the government to consolidate different existing regulations on the subject (arising from Royal Decree-Law 781/1986 of April 18th).

Other rules, such as the Local Covenant, have two main lines of action to promote the principles of autonomy and efficiency:

  • Decentralizing some powers from the CCAAs to local authorities.
  • Strengthening the powers of mayors and presidents of local entities (individual organs), allowing for more flexible and efficient municipal management without relying heavily on the full council.

Art. 1 LRBRL

1. Municipalities are the basic entities of the state’s territorial organization and the immediate channels for citizen participation in public affairs, institutionalizing and managing their own interests independently of the relevant authorities.

2. The Province and, where appropriate, the Island also have the same autonomy to manage their respective interests.

Art. 1 describes the autonomy of municipalities, provinces, and islands as identical. To ensure this, Art. 2 states that state and regional legislation should guarantee these entities the right to intervene in matters directly affecting their interests by granting them the necessary skills, following the legal principles of decentralization and maximum proximity of the administration to citizens.

Arts. 25 et seq. LRBRL outline the most important generic competencies of municipalities, provinces, and islands.

To exercise these powers, Art. 4.1 LRBRL grants administrative powers to local authorities. It gives them the most important skills in public administration, establishing local authorities as territorial authorities. They have:

  • Regulatory powers of self-organization.
  • Tax and financial powers.
  • The power of programming and planning.
  • Powers of expropriation and research, survey, and recovery of their goods, etc.

3. Sources of Local Law

These are categorized into the following five blocks:

  • Organizational and procedural scheme: Legislation established by the CCAAs and organic regulations adopted by each local authority. Supplementary state law would include: the Local Public Finance Law (LPC), LRBRL, and model regulations for local entities.
  • Substantive rules of functions and powers on goods and services: State or autonomous sector law applies, depending on the distribution of responsibility in each CCAA (e.g., for the environment, the state sets minimum standards, and the CCAAs may establish stricter regulations).
  • Status of their officials: Administrative procedure, public procurement, concessions scheme, forms of expropriation, liability, etc. (Art. 149.1.18 EC). This is governed first by primary or exclusive state law (e.g., in the case of expropriation) and then by ordinances of each entity.
  • Property regime: Governed first by basic state laws, then by CCAA development laws, and finally by the rules of each entity.
  • Local treasuries: Governed first by the general state tax laws: state law regulating local public finance, then by CCAA development laws, and finally by the rules of each entity.

4. Principles of Competition and Cooperation

The Principle of Competition

It arises from the division of labor and is characteristic of public administration. Competition emerges as an exclusive power plot, a prerequisite for the validity of the entity’s proceedings. This power is exercised through instruments of public and private law (Art. 4 LRBRL refers to public skills and Art. 5 to private ones).

Art. 6 LRBRL refers to powers, aiming to classify those that may belong to local authorities. These authorities may possess two different types of skills:

  • Those determined by law, which form the core of their autonomy, exercised under their own responsibility.
  • Delegated powers conferred by the state or CCAAs, exercised without autonomy but without limiting their right to self-organization.

Doctrinally, there are four figures of competence:

  • Exclusive competencies (Art. 7 LRBRL): The state and the CCAAs yield these without the possibility of reclaiming them. They represent the core of local autonomy and cannot be interfered with, except by the courts.
  • Own powers subject to instructions: These are dominant. They involve autonomy but are subject to prior or subsequent direction from higher-level public administrations (AAPPs).
  • Delegated powers: These are devolved.
  • Devolved powers: These are not proper powers but involve material intervention by local authorities in the exercise of state and regional competencies.

The Principle of Cooperation or Collaboration

AAPPs must adjust their mutual relations through mutual information, coordination, collaboration, and respect in their respective areas of competence. Arts. 57 et seq. LRBRL detail and regulate this. In general, this principle requires the voluntary participation of the AAPPs involved. The LPC discusses the means of expressing such willingness, through recruitment, signing agreements, or forming consortia. Art. 58 LRBRL adds other organic collaboration techniques, such as establishing joint administrative bodies to foster collaboration between the AAPPs that are members.

When collaboration fails, other principles must be applied.

Other marginal cases are also addressed in the LRBRL, such as:

  • Art. 60, which allows for compelling a local authority to fulfill its legal obligations.
  • Art. 61, which allows for dissolving a local authority.

The Adoption of Resolutions

Cases are usually prepared by various committees or the local government board (the entity that assists the mayor). This ensures the item is fully prepared for voting. Voting can be ordinary or nominal, with the latter agreed upon for specific cases. The voting record documents the voting method of each attendee.

This is important because there may be criminal liability for those who make the decisions.

Blank votes or abstentions are allowed. If someone is absent for a vote, their vote is considered an abstention.

Art. 47 LRBRL (Article amended by Law 57/2003 of December 16th)

1. Local government agreements are adopted, as a rule, by a simple majority of the members present.

In the event of a tie, a second vote is held. If there is still a tie, the chairperson has the casting vote.

The Adoption of Ordinances

This is a specific municipal act with basic procedural steps, governed by Art. 49 LRBRL, supplemented by the LPC.

  • Any ordinance, after technical processing, is subject to initial approval by the plenary.
  • Upon approval, the second step involves public information and a hearing, subjecting the ordinance to scrutiny.
  • Then, all complaints and suggestions are examined and addressed. If not resolved, final approval is not automatic.

Conflict of Authority

Also called overlapping responsibilities. It varies depending on whether it’s internal or between municipalities, and in the latter case, whether they belong to the same CCAA or not. Conflicts between municipalities can be resolved before the administrative court, but with prior recourse to the AAPPs of the CCAAs and the state.

6. The Responsibility of Local Authorities

We must distinguish between:

  • The liability of members of the local community, which is personal, arising from the exercise of their functions.
  • The responsibility of staff at the service of local authorities.
  • The responsibility of the local authority as the administration.
  • Regarding the former, members of the local community have a dual responsibility:

Art. 78 LRBRL

1. Members of local governments are subject to civil and criminal liability for acts and omissions committed in the exercise of their office. Responsibilities will be enforced before the competent Courts and processed according to the applicable ordinary procedure.

2. Members who voted in favor are responsible for the arrangements of the local governments.

3. Local Corporations may establish the liability of their members where bad faith or gross negligence has caused damage to the Corporation or others, if they have been compensated for it.

4. Chairs of local Corporations may punish members with fines for unjustified absence from meetings or repeated breach of their obligations.

This differs from the responsibility of the legislature and the executive, which is handled by ordinary courts.

Regarding personnel in the service of local authorities, responsibility has a triple nature: civil, legal, and disciplinary action, classified as misdemeanors under the disciplinary regime specific to the administrative sphere.

  • The LRBRL states that the responsibility of the local authority as an AAPP is a financial liability.
  • It is a civil financial liability that covers damages to individuals’ assets caused by the administration’s assets.
  • Strict liability is applied, meaning fault or intention of the author is not assessed, but merely that there is damage caused by the administration, requiring compensation.
  • It is universal, as a precondition for the AAPP to answer is not that their actions are unlawful.

7. Definition of Municipality

Art. 11.1 LRBRL: The municipality is the basic entity of the state’s territorial organization. It has legal personality and capacity to fulfill its purposes.

The municipality’s basic character provides the foundation for other local government entities: the province is a sum of municipalities, the CCAAs are a sum of provinces, and the state is a sum of CCAAs, which are, in turn, a sum of municipalities and provinces.

Autonomy also implies legal personality, being a holder of rights and obligations, and independence with its own assets. It stands as a legal person, a local community, encompassing all people living in the territory under its administration. In the 20th century, this concept evolved. Now, a distinction is made between the local authority as an entity and its constituent elements.

8. Elements of the Municipality: Population and Territory

Art. 11.2 LRBRL: The elements of the municipality are the territory, population, and organization.

Territory: The law provides a brief concept, referring to well-understood ideas. A municipality encompasses all the territory included in an approved registry of boundaries. The LRBRL only explains a rule for future boundaries: a municipality can exist whose territory belongs to more than one province. The law regulates actions that can alter existing municipalities:

  • Creation of new local authorities.
  • Elimination of existing ones.
  • Amendment of the boundaries of two or more entities.

Art. 13 LRBRL refers to the regulation of each CCAA, while adhering to the following guidelines:

Art. 13 LRBRL (Article amended by Law 57/2003 of December 16th)

1. The creation or abolition of municipalities, as well as the alteration of municipal boundaries, shall be governed by the laws of the CCAAs on local government, provided that the alteration of municipal boundaries may not entail: (a) a change of provincial boundaries; (2) consultation with the municipalities concerned is required in any case; and (3) the opinion of the State Council or the top advisory body of the Councils of the Autonomous Government, if any, is obtained. Simultaneously with the request for this opinion, (4) the AGE will be informed.

2. The (5) creation of new municipalities may only be made on the basis of geographically distinct villages and provided that the resulting municipalities have sufficient resources to carry out municipal work and that the quality of services being provided is not diminished.

3. Without prejudice to the powers of the Autonomous Communities, the State, taking into account geographic, social, economic, and cultural factors, may adopt measures designed to promote the merger of municipalities in order to improve the management capacity of local governance.

The European Charter of Local Self-Government advocates for rationalizing the structure of states, aiming to reduce the number of municipalities through mergers.

Population: The wording of Art. 15 LRBRL changed the previously understood concept of a person registered in the municipal census. It included all individuals, regardless of nationality, categorized as:

  • Neighbors: People over 18 with habitual residence.
  • Domiciled: People with possible residence who are not neighbors due to being minors or lacking Spanish nationality.
  • The legislature also recognized transients, residents for extended periods who are not habitual residents.

This has been simplified to a single category: the neighbor. This includes anyone in Spain who habitually resides in the municipality, regardless of age or nationality.

People living in multiple municipalities must register in the one where they reside for the longest period during the year.

The registration process, regulated by Art. 16, is an administrative record managed by the council but controlled by the state. There is no obligation beyond the five-year renewal. Registration constitutes proof of residence and the right of habitual residence, although Law 14/2003 introduced a change: for foreigners, registration does not establish residency for immigration purposes.

Art. 18 LRBRL (Article amended by Law 57/2003 of December 16th)

1. The rights and responsibilities of neighbors include:

a) Being eligible to vote.

b) Participating in municipal management.

c) Using municipal utilities and accessing communal land use.

d) Receiving economic and personal benefits.

e) Being informed.

f) Requesting popular consultations, etc.

In some cases, being a neighbor is a prerequisite for accessing municipal services, although a basic principle exists: the universality of provision to guarantee equality. Among the obligations of neighbors, the most important is contributing to the economic and personal benefits provided by law.

9. Organization

The law establishes a common system of organization and a special one for municipalities. In matters not expressly provided for, the common system applies. Its regulation in the LRBRL begins with Art. 19.

Regarding bodies, there are two categories: mandatory and optional, with the list varying depending on the municipality’s size.

In all cases, the following are required:

  • The mayor, deputy mayor, and the municipal council.
  • The Special Commission of Accounts (Art. 116 LRBRL).
  • All those required by the legislation of the applicable CCAAs.

For municipalities with 5,000 or more inhabitants, the following are also mandatory:

  • The local governing board.
  • Commissions of all types mentioned in Art. 20.1.c, unless CCAA legislation provides otherwise.

Non-statutory bodies are also covered by the LRBRL:

  • This would include the governing board and commissions in municipalities with populations under 5,000.
  • The Special Commission of Suggestions and Complaints.
  • Other non-statutory bodies:
    • Those specified by applicable CCAA legislation (Art. 20.2).
    • Those created by each municipality in the exercise of its power of self-organization.

Mayor

Governed by Art. 21 LRBRL. The mayor chairs the municipal corporation and performs two distinct functions:

  • As a full member, elected by popular vote, the mayor directs all activities of the council. Their presidency is manifested in various functions.
  • As president of the corporation, the mayor also assumes different competencies of the council and performs them under their own responsibility, supported by a bureaucratic organization. Art. 22 emphasizes this latter aspect.

Some competencies are exclusive to the mayor, while others are shared with the council, with the allocation depending on the municipality’s size. Larger municipalities allocate more competencies to the council, while smaller ones grant more to the mayor.

The 1985 law prioritized the role of the council. Over time, the mayor’s powers have increased, enhancing their skills. This means the council is losing management areas, justified by the fact that it’s not a permanent body, while daily management is necessary.

Art. 21 outlines the mayor’s powers, specifying which can be delegated and which cannot (Art. 21.3).

The Plenary Hall

This is the most important body within the local administration, governed by Art. 22. It represents the people directly and genuinely, constituted through direct suffrage. It exercises a political function, and all its actions are administrative acts subject to judicial review by administrative courts. Bodies exist to assist the members of the plenary, who assume full legal responsibility for all their decisions. Its powers are outlined in Art. 22 LRBRL.

The Governing Board or Commission and Deputy Mayors

Below the mayor is a hierarchy of organs. The deputy mayors and a collegial body, previously called the municipal government commission and now the governing board, support the mayor. This is regulated in Art. 23.

Deputy mayors are councilors appointed by the mayor at their discretion to replace them in certain cases. They are chosen from among the members of the governing board. They act as decentralized bodies, exercising some of the mayor’s delegated powers.

The governing body, also governed by Art. 23, is a collegial body chaired by the mayor. It has a maximum of one-third of the total number of council members. It can convene extraordinary and urgent meetings to discuss relevant issues.

The mayor has the discretion to appoint and replace members of the governing board.

The governing board assists the mayor in exercising their powers and any other competencies delegated or assigned by law.

Other Municipal Bodies

Art. 24 LRBRL (Article amended by Law 57/2003 of December 16th)

  • To facilitate public participation, territorial bodies are decentralized for management purposes.

10. Competencies

Regulated by Arts. 25 to 28 LRBRL. It distinguishes between own powers, improper powers, delegated powers, and assigned powers.

The concept of local interest, satisfying needs, etc., implies that the municipality should have competence. This relates to the principle of local autonomy. However, a municipality cannot self-attribute competencies, even under Art. 25. It is the law that makes specific attributions (principle of legality).

In the allocation of powers, the municipality receives a distinction between business and public service.

Legislation, especially local legislation, is vague about what constitutes a public service. It virtually refers to any type of administrative function.

Art. 2.25 LRBRL provides that, in its view, municipalities must have certain competencies because they align with the idea of local interest. These are sectors where municipalities may be present, but a law is required to specify the local competence and its scope. This means defining the concrete steps or activities covered by the competence. For example, regarding the environment, the CCAAs, the state, and the European Union are also relevant, so each subject’s role must be defined.

Legislation may also set conditions, such as control systems.

Art. 25 LRBRL

  • The Municipality, for the management of its interests and within the scope of its powers, can promote all kinds of activities and provide public services to help meet the needs and aspirations of the local community.

In Art. 26, the LRBRL assumes the role of directing the allocation of certain services to be provided by all municipalities.

As required, all neighbors have the right to demand that the council provide a public service.

This highlights the importance of registering in the place of habitual residence. This is a problem in large cities with many residents in the periphery. These residents register in the large city, and the peripheral municipalities, lacking this population formally, are not allocated sufficient funding to serve the actual population they have.

Art. 27 LRBRL

  • The AGE, the CCAAs, and other local municipalities may delegate the exercise of powers in matters affecting their interests, provided that this will improve the effectiveness of governance and achieve greater citizen participation.

Art. 28 LRBRL

Municipalities can complement the activities of other government entities.

11. Special Regimes: Municipalities with Large Populations, the Open Council, and Other Laws

Special arrangements exist for large cities: Barcelona and Madrid, for historical reasons, have their own legislation:

  • Law 1/2006 of March 13th for Barcelona.
  • Law 22/2006 of July 4th for Madrid, which, in addition to the special scheme, is the capital.

12. The Province

1. Concept

The concept of the province is given by the EC and Art. 31 LRBRL:

Art. 31 LRBRL

  • The province is a local authority determined by the grouping of municipalities, with legal personality and capacity to fulfill its purposes.
  • Provinces have their own specific purposes to ensure the principles of solidarity and balance between municipalities.
  • The government and autonomous administration of the province belong to the Provincial Corporations or other representative bodies.

As a local government entity, it originates historically, and the EC recognizes its existing reality.

Unlike municipalities, the province plays a supporting role: there is no division of powers between the state, CCAAs, provinces, and municipalities. Instead, the province is responsible for assisting municipalities in exercising their powers.

It is used for organizing the peripheral activities of other local governments and the electoral system.

It emerged in Spain in 1833, inspired by Javier de Burgos. Initially created as a simple partition of the State General Administration for the entire territory, it was headed by the civil governor, a state organ responsible for the administrative organization of civil government in that territory.

Since 1935, with the Calvo Sotelo Municipal Statute, the province has been established as a local government entity distinct from the state.

It has remained in place over time, and the EC has ensured its full independence. With the creation of the CCAAs, the possibility of single-province autonomous communities arose. In these cases, the province as a local government entity disappears. Uniprovincial CCAAs include Navarra, Asturias, Cantabria, Murcia, and La Rioja. The Balearic Islands are a special case. In total, there are 50 provinces, plus the autonomous cities of Ceuta and Melilla.

2. Elements

  • Population.
  • Territory.
  • Organization.

The population is the sum of the populations of its municipalities. Belonging to a province does not confer specific rights or duties, unlike belonging to a municipality. However, from an electoral perspective, the accumulated population is relevant.

The territory is the sum of the territories of its municipalities. Changing its territorial limits requires approval by organic law, providing special protection.

3. Organization

Bodies:

  • Mandatory: Art. 32 LRBRL provides the general rule: the plenary, the president, the governing board, and the vice presidents.
  • Optional: Art. 32.2 outlines professional bodies, supplemented by elective bodies.
  • Complementary: Other bodies that coexist with these complementary ones.

The President of the Provincial Council

Structurally very similar to the mayor. It is a single-member body, supported by an organization, and assumes the role of directing the activity of the province’s most important organ, the plenary. Legislative reforms have tended to increase their powers. They are elected by the plenary from among the provincial deputies.

The Plenum of the Provincial Council

A collegial body composed of the president and other provincial deputies. The law grants it the most important powers, and its members are elected by indirect representation.

Other Statutory Bodies

The Governing Board, governed by Art. 35, is a support body for the president.

The vice presidents’ primary function is to replace the president in case of vacancy, absence, or illness. Commissions also exist.

4. Competencies

Referred to in Art. 36, with a scheme similar to that established for municipalities. It’s not a closed scheme, providing a general rule and leaving potential competencies open: its competencies are those that laws deem appropriate at any time. This law ensures minimum competencies.

The province was established as a channel for coordinating state and regional action in relation to municipalities, providing support.

The law also provides tools for the province to develop its skills. The most important is the provincial plan of cooperation for construction and services. This is an annual forecast of all actions performed in the province to support municipalities that year, related to works and services.

Provincial Councils are responsible for ensuring access for the province’s population to minimum services that each municipality must provide through assistance and cooperation systems.

State or regional laws may also delegate or entrust the management of services:

Art. 37 LRBRL

1. The CCAAs may delegate powers to the Provincial Councils, as well as entrusting them with actions subject to the general and specific directions of the CCAAs.

2. The State may, after consulting the Autonomous Community concerned, delegate to the Provincial Councils merely executive powers when the provincial level is the most appropriate for the provision of related services.

5. Special Schemes

Refers to single-province Autonomous Communities and Navarre: The CCAAs assume the media and resources that provinces have in the ordinary regime. This principle has an exception: the Balearic Islands. In this community, the powers of the Provincial Councils are part of the Island Councils.

Art. 39 LRBRL

The bodies of Alava, Guipuzcoa, and Vizcaya retain their peculiar system.

In the Canary Islands, there are two provinces, but there are also islands, and their administrative organization varies. The Island Councils have assumed some of the provinces’ responsibilities, but only partially. Inter-provincial associations also exist, which are organs of representation and expression of provincial interests, composed of the chairpersons of the Island Councils of each province.