Archives February 2014

« Prefect’s Law » final part

by Raluca Filip

(2014 translation of 2005 article. Unfortunately,

nothing is changed on the subject, meanwhile)

Unfortunately, as we observe, there is no correlation in the Romanian laws between the attributions and competencies in Public Administration. If one is taking a decision, in any way, for any type of de-concentration, one has to keep the general direction, so that constancy and clarity, consistency and unity in regulations to exist.

More concrete, other negative aspects linked to Prefect Law ( 340 / 12.07.2004 ), could be:

Art.1 Al.1 from Prefect Law ( 340 / 12.07.2004 ) is wrong from the start, if we take into consideration the premise that the Prefect and the Deputy Prefect will be high civil servants, beginning with 2006.

 “The Prefect is the Government representative on local level”? To be the “representative” of the Government is implying, in inclusive way, the politics (attention, not the <>). The Prefect cannot be the Government representative AND non political in the same time. Proposals:

  1. The Prefect is the high civil servant who assures the accomplishment, at local level, of framework policies established by the Government
  2. The Prefect is the high civil servant who transposes, at local level, the general socio-economical directions of the Government and so on.

At art.4 are enumerated the principles which the Prefect’s activity is based on. They should be reformulated to give consistency to the message transmitted. For example:

The principles which stand at the base of Prefect’s activity are:

  1. Lawfulness and Objectivity;
  2. Responsibility;
  3. Efficiency and Efficacy;
  4. Adaptation and Flexibility;
  5. Global and unitary Vision;
  6. Transparency and Orientation towards citizen

 Art. 35 al.2 from Prefect Law ( 340 / 12.07.2004 ):

“The Prefect can intimate to emitting institutions the deed which considers being unseasonable”? Illegal, groundless – OK – but unseasonable? How can anyone define, in judicial terms, an “unseasonable” deed? Compared to what exactly, to whom it must be unseasonable a deed so that one can intimate it to emitting institutions?

At the article 41 from Prefect Law ( 340 / 12.07.2004 )  – in definition of the “local and county public administration authorities”, it has been forgotten to mention among these, the county councils.

The other stipulations of Prefect Law ( 340 / 12.07.2004 ) are in concordance with the general policy of reform and modernization of Public Administration (central and local) and represents positive aspects:

Art. 15 (« mobility in function, availability for unseasonable naming») is subject for multiple contradictory discussions from validation of the law, to be applied beginning with 2006. However, this article of the law is well framed on the path for achieving the final objectives of the laws adopted in june-july 2004 ( 315, 339, 340 ):

  1. The objective of decentralization (at local level the citizens are capable of choosing the political people to represent their interests also on local level – local and county counselors including the president of the county council, the mayors) – decisional and financial autonomy
  2. The objective of de-concentration – descending of the « power » – of attributions and obligations from Center to the Territory

 De-political action of these very important actors of the local scene of Administration, prefect and deputy prefect, it represents the mean through which a Government can show that it trusts the citizens whom it governs and who, at their turn, gave the Government their trust. Why? Because they already chose, locally, the political people to represent them. From the « little government» from the Territory, a technocrat, professional administration is expected. The high civil servant the prefect will be, must be capable, by his/her training and competence, to transpose locally the general directions drawn by the Government (through the attributions mentioned in the law, art. 24) – in collaboration with the other local authorities. In this way, the Government grants trust also to the civil servants (foremost of whom the prefect and the deputy prefect) who carry the mission of accomplishment its framework policies.

 Also, Art.9 (inclusion in the category of high civil servants, conditions for filling the prefect or deputy prefect position), art.17 (dignity in function), art.22 (incompatibilities and conflicts of interests), art.24 (attributions of the prefect), art.30 (collaboration with associations and foundations of public utility), art.31 (evaluation of individual professional performances of the prefects), art. 34 (communication of orders to the de-concentrated services and proposals to improve their activity), serve very well the purpose of the law.

 PROPOSALS:

  •  Set up of an own fiscal legislation – the key element of an efficient local and regional autonomy – in this moment it is offered a reduced autonomy at regional level, censored through earmarking of finance funds.
  • Clear option for the applied de-concentration type – option which must be maintained with consistency, by the law and by the practice.
  • Total redistribution of administrative functions, based on the subsidiary principle, starting from the communes (villages) – those administrative levels closest by the citizens
  • There is no mention and there is no correlation between administrative levels and specific competences (for example, in France, communes (villages) deal with security and urbanism issues, counties deal with social issues and regions deal with economical issues). Each level should have its competences – “competence blocks”, by domains.
  • It is necessary to realize a new delimitation of State functions. Legislative and Executive to descend at regional level and Judicial to remain at state level.
  • Stipulation of metropolitan areas / towns – it has to be done, most appropriate, in the regionalization settlement.
  • Harmonization of regional development policies with Romania’s general development objectives and with EU’s development objectives, related to social and territorial economical cohesion. Following regional level objectives supposes harmonization of every county objectives or finding common interest projects.

 (the end)

« Prefect’s Law » part II

by Raluca Filip

(2014 translation of 2005 article. Unfortunately,

nothing is changed on the subject, meanwhile)

As we all know, by the type of power descending (from Center to Territory), the States are:

I.  Centralized State – the State is the only public law subject, the public interest is only one. The Centralized State can be of two kinds:

  1. Concentrated – purely theoretical model
  2. De-concentrated – representation of the State in the territory. There are entities – prolongations of the Center, which have hierarchical type of connections with the State

II. Decentralized State – there are the State and the Local Communities, therefore there are two types of public interest. The Public Administration is not unique anymore. (State  Administration and Local Administration). There is local autonomy (decisional and financial), administrative trusteeship.

Power descending process from center to local communities is done on two levels. Decentralization and De-concentration coexist. To whom “the power is given”? To the State or to the Local Communities? If it is given to the State, where exactly? At the centre or in the territory?

 Also, confusion can appear also when we talk about “delocalization” = the headquarters of some institutions are not in the capital of the respective country. The power (attributions) is the same only that geographically, the buildings are somewhere else.

III. Federal State where the first two types of State remain valid at the federate level (their own administrative model, there is no unique model – every component has another model)

IV. There is also a hybrid model between the decentralized and the federal models = politically regionalized State (Spain and Italy). Executive and legislative descends, judicial remains central. The State is tutelary to the region and that is all (not tutelary also to the lower communities). The region is tutelary to the rest of communities.

Romania is a decentralized State where the choice is not taken yet, for:

  1. Territorial De-concentration on VERTICAL line = de-concentration of power to Ministerial Administration’s de-concentrated public service       OR
  2. Territorial De-concentration on HORIZONTAL line = greater power to the prefect than to the Ministerial Administration’s de-concentrated services’ chiefs.

 Doc1en

Ministers are Government members; Chiefs of Ministry Agencies are NOT Government members but have the same attributions like ministers.

Autonomous Authorities are mentioned, partly, in The Constitution: Court of Accounts, Supreme Council of National Defense, Romanian Ombudsman, The Legislative Council, Radio and Television Public Service, National Audiovisual Council of Romania, Competition Council, National Bank of Romania, Superior Council of Magistracy.

 Between Government and Autonomous Authorities there is NO subordination, NEITHER cooperation from equal positions.

Doc2en

Therefore, because between Government and Autonomous Authorities there is no  subordination, neither cooperation from equal positions, nor the Prefect can lead the Autonomous Authorities representatives in the territory (Constitution, art 123, al.2).

At local level, the Prefect is DIRECTLY subordinated to the Government. He/She IS every single minister (only as public authority, not as political authority as well), on the subject of the respective area, in the TERRITORY. He/She cannot be representative of persons (Chiefs of Ministry Agencies, respectively).

There is nothing stipulated in the Constitution, nor in the ordinary laws or the special laws, of the choice for one system or another. In the present, the clear trend is of territorial de-concentration on HORIZONTAL line, but it’s not stipulated anywhere.

Where does it come from, this trend?

Art.3 from Prefect Law ( 340 / 12.07.2004 ): “The Prefect COMMANDS Ministerial Administration’s de-concentrated public services and public services of other central administration institutions from the territory”

Art. 35 al.1 from Prefect Law ( 340 / 12.07.2004 ): « Ministries and other central administration institutions communicate with priority to the prefects the legal nature documents and the prefects are obliged to transmit the documents to de-concentrated institutions »

For example, Ministry of Public Finance has to give a decision for the County Finance Offices from all over the country. The Ministry doesn’t send it directly to the 42 offices but to the 42 prefects. They will send to the County Finance Offices the respective decision.

Therefore, if from top to bottom these decisions pass through the Prefect first, it is logical to pass also through the Prefect the reverse flux, from bottom to top – but it is not happening so.

Another aspect is the PROPOSAL that the Prefect has to make for naming and releasing the chiefs of de-concentrated institutions (public servants who pass an EXAM). In the grammatical meaning of the word, a « proposal » is CONSULTATIVE. The minister appoints the chief of that institution. By the law, this fact urges to a territorial de-concentration on VERTICAL line vision.

Art. 25 from Prefect Law ( 340 / 12.07.2004 ): “Naming and releasing from the function of chiefs of de-concentrated institutions is done only by the proposal of the prefect, by the law.”

The Prefect could, however, forward some purely discretionary proposals for naming and releasing chiefs. That is why, this kind of proposal, as much consultative as it is, pushes the power towards the prefect (there are some other examples, not only this one) and towards the territorial De-concentration on HORIZONTAL line.

Also, the Law for regional development in Romania ( 315 / 28.06.2004 ), from the technical point of view, brings a novelty compared to the Constitution’s regulations, adding to the administrative-territorial entities sanctioned by it (villages, municipalities, counties) the one of the development region. This law stipulates the attributions of every structure implicated in functioning of development regions and the connections between them. The law mentions the basic objectives of regional development policy towards the elimination of regional disequilibrium and towards the stimulation of a balanced development of regions; correlation of governmental different domain policies to the regional level; stimulation of inter regional, internal, international, cross border cooperation.

However, we can observe that instead of creating an elastical judicial and administrative framework, which could allow an association of administrative-territorial units (counties) by the specificity of their local issues, the law imposes an administrative organization of 8 regions, constituted more by the territorial neighborhood and the free will of the legislative, establishing the make-up of every region. This fact gives a “forced” partnership note, contrary to the stated law principles.

Moreover, the law does not confer legal personality to the development regions nor to the deliberative regional institutions.

(fragment 2)

« Prefect’s Law » and its environment

by Raluca Filip

(2014 translation of 2005 article. Unfortunately,

nothing is changed on the subject, meanwhile)

Economic growth, balanced and stable social development represents major objectives of each community and thus these objectives have been permanently in focus of administrative organizations in most of the developed countries. For achieving the desideratum it is necessary to consider specific aspects at national level and also specific aspects at local level, in local communities. In this way, the present orientation at EU level greatly emphasizes regional development as foundation for national development and entire EU development.

But the « euro skeptical », « euro pessimists » are really optimist in their faith that EU will unravel. The trend of regionalization is very accentuated. Local communities, from villages up to the euro-regions just got the taste of association in order to achieve common objectives of development, of keeping the area specificity, of sharing values. Globalization? Regionalization? Naming is important but is less important compared to the essence: borders will disappear –institutional differences between public, non-profit and private sector and between federal, state and local government are already diluted and indistinct and will become more diluted and more indistinct; governments will level and extend – they always were hierarchies and will remain so but they already began to adapt and restructure their ample vertical organization in order to exploit emerging horizontal networks and other sectors, this restructuring being accelerated; governments will modify their size – sovereignty reduces, the trend being of « planet government». International cooperation in areas like environment protection, commercial trades, violence fighting, etc., show this final result. Transfer and redefining determines governments to reduce their responsibilities so that other entities could appear to take it over and to offer public services. In other words, we further away from the government or from the control over the citizens and from offering benefits from state institutions and we make it for governance or for modifying laws, policies, organizations, institutions, common and contractual agreements which controls citizens and offers public benefits – the serious working in a network being fundamental for a governance.

In the same direction, the Law for regional development in Romania ( 315 / 28.06.2004 ),  the Decentralization Law ( 339 din 12.07.2004 ) and the Prefect Law ( 340 / 12.07.2004 ) are framed – these are laws part of the same “legislative package” (not only by the timing of their publishing and application), meant to regulate basic principles and general rules like institutional framework, objectives, competences and specific tools for the regional development policy, needed to the Romanian administrative and financial decentralization process. These laws should be still treated like a “whole” and applied or modified together.

Unfortunately, it is not stipulated in this “legislative package” either, the option for one administrative system or another. Therefore, notions of “de-concentration”, “decentralization”, “de-concentrated public services”, “decentralized public services” are mixed up even now, almost a year apart from validation of laws – justified situation though, because the attributions of those structures are not delimited.

(end of part 1, to be continued)