Municipal policy as a priority area of legal policy in the context of reforming the territorial organisation of power and European integration of Ukraine

Strengthening local self-government and local democracy has become one of the trends in state and social development on a global scale. The importance of local self-government for building a constitutional order based on the rule of law, democracy, and recognition of human rights necessitates a response on the part of the state by developing and implementing an appropriate legal policy as a system of principles, areas, and means of targeted legal influence on the course and aims of coresponding social processes and development of appropriate social institutions and norms. state local ukraine municipal legal policy

Municipal policy is a kind of legal policy on the subject of legal regulation; it is a scientifically substantiated system of goals, priorities, areas, tasks and concrete measures for creation of an effective mechanism of municipal legal regulation, for development and modernisation of local self-government in the country. The implementation of such a policy must be rational and consistent, comply with the principles of the constitutional order and the international obligations of the state, be focused on the priority of human rights and ensure the capacity of territorial communities. In a democratic, legal statehood, municipal policy is the main tool for influencing the system of public relations in the field of local self-government and is dialectically combined with other forms and types of national policy [6]. It includes the coordinated activities of public authorities, local governments, their officials and officials, civil society institutions, territorial groups and individuals, which is carried out with a common purpose and in the manner prescribed by applicable law, and orients society to optimise municipal legal regulation. Municipal policy is designed to organise the process of municipal construction, because it cannot happen spontaneously, and in the municipal legal sphere requires its own strategy and tactics, internal logic and systematic action [7].

The specificity of municipal policy is that it is, on the one hand, the closest to the place of residence of citizens, and hence to their daily needs and interests, and on the other hand - it has a complex nature, because such are the issues of local importance. Municipal policy should develop legal algorithms to address the problems faced by communities and their elected authorities, ways to resolve conflicts and overcome crises, propose mechanisms that could work proactively, and thus related to scientific forecasting and planning at the local level. Modern Ukraine clearly lacks consistency, moderation and soundness in the development of municipal policy, as well as political will in its implementation, as evidenced by the constitutional reform of decentralisation, which was announced in 2014, but still not implemented, having managed to substantially change during this time not only its content, but also strategic guidelines.

Referring to Ukrainian scientific sources, which to a certain extent investigate the municipal policy, the authors of the present study agree that municipal policy is a legal policy pursued jointly by public authorities, local governments, civil society institutions involving members of local communities to development of local self-government [8].

The state is the leading subject of municipal policy development in Ukraine. It would seem that this is quite understandable given the sovereignty of state power, but not in the case of local self-government, the “top-down” construction of which contradicts the very nature of self-government, where the subject and object of power coincide in the face of the territorial community. Local self-government in Ukraine was initiated by state enforcement, as a result of which the local population was simply confronted with the fact that it currently has a different status, and the “power landscape” has changed radically. Therewith, the decrepit nature of local self-government persists throughout the years of Ukraine's independence, the most striking evidence of which is that all reforms in the municipal sphere are carried out at the initiative of the state and within the state vision of social development. As a result, contrary to the declared independence and autonomy from the state, local self-government remains the object of reform and even experimentation, being unable to oppose the will of the sovereign state power. Territorial communities and their authorities in the process of reforming their own existence are given, at best, an advisory role, while the centre of decision-making is concentrated in the capital, represented by the highest political bodies of the state. As a result, two parallel realities are formed: the abstract-idealised system of local self-government, which is seen in central government projects and reflected in strategies, concepts and laws, and a realitic system of local self-government, which is observed daily and which members of territorial communities face daily when solving their current issues.

In the process of voluntary and compulsory unification of territorial communities, the socio-territorial basis of local self-government was effectively destroyed, which conventionally was territorial communities as natural communities united by common interests and needs arising from living together within a single settlement. Newly created (united) territorial communities are artificial formations; members of such communities have no common ground. As a result, local self-government is transformed into a purely territorial administration and thus finally nationalised. Accordingly, initiative, democracy, reliance on the masses, publicity and local uniqueness of local self-government are lost, and thus all the creative potential embedded in the model outlined in the 1995 European Charter of Local Self-Government is levelled [9].

The starting points of the national municipal policy are the concepts of reform, strategies, plans for the development of local self-government, etc. Such documents underlie further transformation of the system of national legislation in the field of local self-government. The revision of the provisions of Ukrainian legislation on a new conceptual basis, in turn, is aimed at ensuring the purposefulness and systematisation of the state's transformations in the municipal sphere. Thus, the essence of municipal policy of Ukraine, given the decentralisation reform, is that it is a relatively stable, organised, purposeful activity of public authorities and local governments, which aims to build a capable local government, adequate to the needs and interests of territorial communities.

National municipal policy, its elemental composition (subjects, objects, purpose and means of activity, mechanisms of realisation, and also results of this activity and their estimation), depend on the following factors and conditions:

1) political value of a social problem (concept, strategy, recommendation, etc.);

2) the presence or possibility of developing a political administrative programme (legislation);

3) political-administrative structure (vertical and horizontal connections of state authorities and local self-government), which makes provision for the definition of key actors (stakeholders), including institutional norms that affect their activities (specialised, sectoral laws);

4) the presence of an action plan, programme or their development (plans for the implementation of steps and stages, state target programmes, etc.);

5) acts of implementation (orders, instructions, methods, administrative documents of local nature), which are provided by the current legislation and correspond to the political administrative programme;

6) policy impact assessment (statistics and monitoring, administrative and financial audit, etc.) [10].

Therefore, the elemental composition of municipal policy is as follows:

1. Existence of the developed concept of system-structural and organisational-functional organisation and activity of local government (local bodies of state executive power and local self-government bodies) at different levels of administrative-territorial structure, including basic, intermediate, and regional levels.

2. An agreed system of regulations that govern the organisation and activity of local bodies of state executive power and local self-government, establish the scope and limits of their competence, including determine the features of interaction and the procedure for resolving disputes between them.

3. Regulatory framework of resource provision of local self-government (most importantly, financial and budgetary).

4. The definition of a body or official in the structure of state executive bodies, which represents the interests of the state in the relevant territory, has the right to exercise control powers and is a link between the territorial community, local governments and the system of state executive bodies.

5. Formally defined algorithm for decision-making on issues relating to local self-government (in particular, involves the participation of representatives of associations of local governments, including local needs and interests).

6. The system of monitoring the national municipal policy.

Taking the elemental composition as a basis, it is possible to investigate the ongoing changes by analysing the theoretical and conceptual and regulatory support of the reform.

1. The processes of regionalisation, decentralisation of public power, the development of a system of capable local self-government based on the principle of subsidiarity and universality are inherent in modern states with a liberal-democratic political regime. Decentralisation is usually understood as the reform of the system of public power in the state in the following main areas: 1) territorial reform (involves the reorganisation of territorial organisation, usually through the consolidation (agglomeration) of administrative-territorial units (voluntary, forced or mixed) 2) institutional reorganisation (redistribution of powers and relevant financial and other resources); 3) procedural reorganisation (reform of the system of public services (including administrative services), introduction of e-government, due (good) governance at different levels and in different subsystems of public authority, best world practices of organisation and activity, etc.) [11]. Reforms in these areas were comprehensively and meaningfully carried out in countries such as Poland, Latvia, Lithuania, the Czech Republic, Slovakia, Estonia, Italy, Portugal, Denmark, Finland, and others [12; 13]. In many other countries of the world, these areas of reform are at an early stage (awareness of the need, search for a model, development of a concept, planning and forecasting, etc.).

The main issues to be addressed by the decentralisation reform, including in Ukraine, are as follows: 1) significant deterioration in the quality and accessibility of public services due to the resource failure of the vast majority of local governments; 2) catastrophic deterioration of heat, sewage, water supply networks, housing in general, including the risk of anthropogenic disasters in conditions of serious lack of material, financial, and other resources; 3) difficult demographic situation in most territorial communities; 4) inconsistency, and often separation of local policy on socio-economic development with the interests of territorial communities; 5) lack of unified state regulation of forms of local democracy of participation, inability and lack of initiative of members of territorial communities to take solidarity actions aimed at protecting their rights and interests; 6) reducing the level of professionalism of local government officials, including due to the weak competitiveness of local governments in the labour market, reducing the prestige of positions, which leads to low quality of vital decisions for the community; 7) corporatisation of the system of local self-government bodies, high degree of secrecy and non-transparency of their activity, increase of corruption, which can lead to decrease in efficiency of use of own and involved material and financial resources, decrease of investment attractiveness of territories, increase of social tension; 8) politicisation of the decision-making process in this area of legal regulation, when representatives of the dominant party in Parliament pursue national interests without focusing on the affairs of territorial communities, while opposition parties, on the contrary, often sabotage the implementation of national policy, ignoring the interests of communities; 9) excessive centralisation of powers of executive bodies and financial and material resources, even considering changes in the budget and tax spheres; 10) increasing social tensions due to failure to ensure the ubiquity of local self-government, etc. [14].

Thus, the areas and logic of the reform were defined by the Concept of reforming local self-government and territorial organisation of power in Ukraine, approved by the Cabinet of Ministers of Ukraine on April 1, 2014. [15]. The reform is based on the following starting points: transfer of powers from the centre to the periphery; the relevant delegated powers must be provided with sufficient financial resources; determination of forms and limits of control over the activity of local self-government bodies.

2. Since the adoption of the Concept, the regulatory framework for the reform has been developed and adopted, and numerous laws have been adopted that lay the foundation for the development of capable local self-government and community cooperation. Furthermore, in 2015, the Law of Ukraine “On the Principles of National Regional Policy” was adopted [16], which defines the basic socio-economic, legal and other principles of national regional policy as a component of internal policy of Ukraine, including defines the purpose, principles, levels, objects and subjects of national regional policy, their powers in this area, financial support measures, including monitoring their implementation.

Substantial changes were also introduced to the Tax and Budget Codes of Ukraine (in terms of fiscal decentralisation - changes in the structure of the budget system with corresponding changes in the powers of local governments, etc.). In particular, in pursuance of the Decree of the President of Ukraine “On Urgent Measures to Ensure Economic Growth, Stimulate Regional Development and Prevent Corruption”, the State Strategy for Regional Development for 2021-2027 was developed [17]

This document provides not only objective changes, but also changes in approaches to regional development, subjective changes (until 2020, the relevant policies were developed and implemented the by central government; starting from 2021, it is expected that the development and implementation of this policy will be performed at all levels: central, regional, local, including with the involvement of non-governmental organisations), substantial changes in the funding of relevant regional development programs, including monitoring of relevant measures by the Government of Ukraine and, finally, all these efforts to strategically plan development and efficient management of resources, etc.

At the same time, the reorganisation of the administrative-territorial system was initiated. On the one hand, this process should have been facilitated by the adoption of the Laws of Ukraine “On Cooperation of Territorial Communities” [18], “On Voluntary Association of Territorial Communities” [19] of 2014 and 2015, respectively. These regulations laid the foundations for future territorial reorganisation, namely by defining the legal framework for cooperation of territorial communities, principles, forms, subjects and areas, mechanisms of such cooperation, its promotion, financing and control, and settlement of relations arising in the process of voluntary association of territorial communities of villages, settlements, cities, including voluntary accession to the united territorial communities, purpose, subjects of initiation, including decisionmakers, funding issues, etc.

Therewith, the draft law, which should determine the principles of development of administrative- territorial organisation, conditions, and procedure for creating administrative-territorial units, their reorganisation, status of settlements, procedure for naming and renaming settlements and administrative- territorial units was not adopted by the Verkhovna Rada of Ukraine.

The current situation, especially considering that the reform of local self-government and territorial organisation of power in Ukraine, administrative-territorial structure and national regional policy take place simultaneously, has an adverse impact on the ongoing process of territorial reorganisation, transfer of functions and powers, relevant resources, etc. Furthermore, the above issues, which were caused by a consistent and ill-considered policy in the field of territorial reorganisation, resulted in problems of establishment and organisation of new local governments, starting with the appointment and holding of elections to district councils of large communities and ending with financial and property and competence issues (unwillingness to take property on balance; unwillingness to take responsibility; problems of determining administrative centres and their proximity, accessibility, etc.).

At the same time, the Verkhovna Rada of Ukraine adopted some legislative acts on zoning, including amendments to the election legislation. In particular, according to the Resolution of the Verkhovna Rada of Ukraine “On the Formation and Liquidation of Districts” [20], a consolidation occured and 136 districts were created instead of 490. Furthermore, considering the introduction of new types of electoral systems for local council elections by the Electoral Code, and considering the need to hold not only regular but also the first local elections in a pandemic, the Law of Ukraine “On Amendments to Certain Laws of Ukraine Concerning the Improvement of Electoral Legislation” [21] eliminated gaps and inconsistencies, adjusted deadlines, simplified and unified election procedures to ensure compliance with international standards for elections and to ensure the sustainability of democratic principles and procedures in Ukraine.

The above issues are complex and reflect the inconsistency and unsystematic nature of actions in the development of the national system of legislation in the field of local self-government. Thus, the national municipal policy as a set of measures aimed at legalisation and statutory regulation of public relations in the organisation and exercise of municipal power, is described by a constant search within the framework of conceptually different systems of local government, inhibiting its development through imperfection, inconsistencies, gaps in legal regulation.

3. It is clear that the territorial reorganisation, including the transfer of power (legal responsibilities of bodies and/or officials), and hence the responsibility involves the provision of appropriate material and financial resources. This provision is reflected both in the Concept of Reforming Local Self-Government and Territorial Organisation of Power in Ukraine and in the State Strategy for Regional Development for 2021 -2027. Furthermore, substantial changes have been introduced to the current legislation of Ukraine.

Thus, the Law of Ukraine “On Amendments to the Budget Code of Ukraine Concerning the Reform of Intergovernmental Relations” [22] makes provision for increasing budgetary and financial independence of local budgets, stimulating communities to unite and forming capable territorial communities through the mechanism of transition of budgets of united communities to direct interbudgetary relations with the state budget, expanding the existing revenue base of local budgets, decentralisation of expenditure powers in sociocultural areas and a clear division of competences, formed on the principle of subsidiarity, the introduction of new types of transfers, the establishment of a new system of equalisation of national taxes, simplification of local guarantees and borrowing from international financial institutions, etc. Legislative changes also gave local governments the right to approve local budgets regardless of the date of adoption of the Law on the State Budget.

Accordingly, the Law of Ukraine “On Amendments to the Tax Code of Ukraine and Certain Legislative Acts of Ukraine Concerning Tax Reform” [23], albeit not directly related to the reform of local self-government, makes provision for substantial changes in the tax system that affect all actors.

In particular, the united territorial communities received powers and resources at the level of cities of regional significance, while revenues from such taxes and fees as property tax, single tax, including the fee for parking spaces, tourist tax remained on the ground. Moreover, with the entry into force of the Law of Ukraine “On Amendments to the Tax Code of Ukraine to Improve Tax Administration, Eliminate Technical and Logical Inconsistencies in Tax Legislation” [24], local governments shall not oblige to make annual decisions on the establishment of local taxes and/or fees. Local governments may not decide to impose local taxes and fees in the current year. In this case, subject to the adopted changes:

1) the single tax and property tax will handle the application of rates that were in effect until December 31 of the year preceding the budget period in which it is planned to apply such local taxes and/or fees;

2) property tax, fee for parking spaces for vehicles, tourist tax and land tax for forest lands (if established) - at the rates specified in the current decisions. In case of local self-government decisions, the provisions of which stipulate amendments to existing decisions only in part of the change of year or its exclusion in the title of the decision (indefinite decision), such decisions will not have the features of a regulation, and their adoption will not require procedures established by the Law of Ukraine “On the Principles of National Regulatory Policy in the Economic Activity Sector”.

The Law of Ukraine “On Amendments to the Budget Code of Ukraine to Bring the Legislative Provisions in Line with the Completion of the Administrative-Territorial Reform” [25] continued the initiated transformations, making provision for the creation of an adequate resource base for the exercise of local government powers on a new territorial basis, in particular by dividing revenues and expenditures between budgets of districts and territorial communities, establishing the composition of revenues and expenditures of new communities (formed by the Cabinet of Ministers of Ukraine) in the amounts assigned to the budgets of cities of regional significance and united territorial communities, as well as establishing equal conditions for territorial communities (rural, settlement, urban) in budget support. The main sources of revenue of district budgets are revenues from the management of communal property (rent, income tax of communal enterprises, part of net profit) and administrative fees. The legislatively determined powers of district councils may be exercised within the limits of revenues to district budgets, including by attracting funds from village, town, and city budgets for joint social, infrastructural, economic, and other projects on a contractual basis. Therewith, due to a certain inconsistency of the transformation process (territorial and institutional reorganisation without prior proper regulatory framework: adoption of laws of Ukraine, including amendments to the Constitution of Ukraine, etc.), some terminological issues remain unresolved, such as clear definition and unambiguous understanding of the following terms: “local government budget”, “territorial community budget”, including the issue of some restriction of revenues to district budgets and their exclusion from the system of horizontal equalisation in favour of communities of villages, towns, and cities.

Both cumbersome and progressive are the competence and resource changes provided by the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Concerning the Optimisation of the Network and Functioning of Centres for Provision of Administrative Services and Improvement of Access to

Administrative Services Provided in Electronic Form” [26]. Thus, on the one hand, it is assumed that the changes can improve and enhance the quality of administrative services provided to individuals and legal entities, including ensure budget revenues. On the other hand, such institutional and functional changes in practice are manifested in such problems as: the presence of the building or the need for its construction and/or equipment/re-equipment; staff training and encouragement; connection to registers; ensuring the availability of services by creating remote jobs and/or by concluding agreements on cooperation of territorial communities in common interests, etc.

4. The issues of transformation of local state administrations and/or introduction of the institution of prefect as a representative of the President of Ukraine in connection with structural and competence changes envisaged for the system of central executive bodies by the Public Administration Reform Strategy for 2016-2020 remain relevant and no less complicated, including in connection with the structural and competency changes provided for the system of local self-government by the Concept of Reforming Local Self-Government and Territorial Organisation of Power in Ukraine of 2014. Therewith, from a conceptual standpoint, the issue of transformation of local state administrations as state executive bodies on the ground and their interaction with local governments remains understudied, and the organisation and activities of these bodies still correspond to the outdated notion which is formed under the influence of the idea of centralised public administration with elements of excessive “guardianship” over local self-government [27]. Furthermore, the legislation does not contain a definition of the concept of administrative supervision and/or control over the activities of local governments and a clear mechanism for their implementation, which raises the issue of amending the Constitution of Ukraine [28], the Law of Ukraine “On Local State Administrations” [29] and/or the adoption of a separate regulation in this area.

According to Part 4, Article 143 of the Constitution of Ukraine, local governments on the exercise of powers of executive authorities are controlled by the latter. The Law of Ukraine “On Local Self -Government in Ukraine” [30] addresses these issues in several articles: 1) Article 20 stipulates that such control may be exercised only on the basis, within the powers, and in the manner prescribed by the Constitution and laws of Ukraine, and shall not lead to interference of public authorities or their officials in the exercise of local authorities' powers; 2) Part 10, Article 59 states that “acts of bodies and officials of local self -government on the grounds of their inconsistency with the Constitution or laws of Ukraine are recognised as illegal in court. “In this case, Part 2, Article 71 of the Law emphasises that executive bodies and their officials have no right to interfere in the lawful activities of bodies and officials of local self-government, including to resolve issues referred by the Constitution and laws to the powers of the latter, except in cases delegated by councils and in other cases stipulated by law. This provision is detailed in Part 2, Article 76, which stipulates that bodies and officials of local self-government on the exercise of their delegated powers of executive bodies are under the control of the relevant executive bodies. Furthermore, the principles of relations of local state administrations with local governments, which also apply to the implementation of administrative supervision and control are defined in Article 35 of the Law of Ukraine “On Local State Administrations” (interaction; assistance; restriction of supervision and control by law; considering the proposals of local governments and officials; prior notification of local governments in case of important issues at the local level, central authorities, etc.).

In this case, Paragraph 1, Article 8 of the European Charter of Local Self-Government stipulates that any administrative supervision and/or control (currently, should consider not only the specifics of the translation, but also the specifics of the concept of the origin of local self-government, system and model of local self-government in each country, including in different regions (constituent parts) within one state) by local authorities may be carried out only in accordance with the procedures and in cases provided by the constitution or law. The purpose of administrative supervision and/or control can only be to ensure compliance with the law and constitutional principles (Paragraph 2, Article 8). However, instances may exercise administrative supervision over the timeliness of the tasks assigned to local governments. This provision establishes a standard for combining oversight of legality with control over expediency (administrative oversight of the municipal authority's powers is exercised solely over legality; for delegates, control over legality and expediency is permissible if the latter meets the requirements of legal certainty and is not opposed to legality). Therewith, the lack of special procedures, the general nature of the competence of local state administrations, the excessive amount of delegated powers, their functional intertwining with their own powers allow controlling the activities of local governments in violation of legal certainty and legality. Furthermore, Part 3, Article 8 of the Charter amphasises the principle of proportionality of the measures of the controlling body to the importance of the interests it intends to protect. Instead, the principle of proportionality manifests itself differently depending on the subject of supervision or control and regarding which powers of local selfgovernment bodies (own or delegated) such supervision and/or control is exercised. According to this principle, the supervising/controlling body in the exercise of its powers must act in such a way as to have the least possible effect on local autonomy, while achieving the desired result. Furthermore, Recommendations of the Congress of Local and Regional Authorities of the Council of Europe No. R (98) 12 “On supervision of local authorities” [31] contain guidelines that determine the scope of administrative supervision.

The authors of the present study believe that despite the imperfection of the doctrinal base and the presence of numerous gaps in the field of administrative supervision and/or control in the municipal law sphere, the state administrative supervision and/or control can be distinguished 1) in the exercise of local government powers; 2) in the sphere of exercising the delegated powers of local self-government bodies. Therewith, the current legislation does not contain a single and clear procedure for state control and/or supervision.

In turn, the principles of the mechanism of state control and supervision over the observance of the Constitution and laws of Ukraine by local governments are defined in the Draft Law of Ukraine “On Amendments to the Constitution of Ukraine (on decentralisation of power)” and in the Draft Law of Ukraine “On Amendments to the Law of Ukraine “On Local State Administrations” and Some Other Legislative Acts of Ukraine on Reforming the Territorial Organisation of Executive Power in Ukraine” (No. 4298 of October 30, 2020 ) [32], which, according to the explanatory note, makes provision for the creation of a system of local state administrations of the prefectural type. Therewith, it is assumed that local state administrations continue to implement district and regional budgets, including some powers of local self-government by delegation, etc. Therefore, this does not refer to the fact that the system of local state administrations will be structurally and functionally built and will act as “prefecture -type” bodies (although this term is not explained in the draft), but that apart from the usual set of tasks and powers, the latter acquire additional legal responsibilities for “ensuring the rule of law in the exercise of local self -government”. In particular, a new chapter “Ensuring the rule of law in the exercise of local self-government” (Chapter 6, Section II) is proposed, which defines the general principles and principles of ensuring the rule of law in the exercise of local self-government; the system of bodies (central, regional and district level) that ensure the rule of law, their functions and powers; certain measures to ensure legality (including appeals against decisions of local governments, proposals, appeals to relevant bodies, consultations, etc.).

A detailed study of certain provisions of this project suggests that the power to “ensure the rule of law in the implementation of local self-government” in combination with the implementation in practice of the role of their own executive bodies of district and regional councils can lead to redundancy and even direct interference in local government, which contradicts the very essence of the ongoing reform. After all, given the main goals of the reform of local self-government and territorial organisation of power in Ukraine, the creation of capable local self-government, primarily at the basic, subregional and regional levels is possible only if decisions can be made and implemented independently (including the implementation monitoring) within one subsystem of public authority (given the nature of local government). Instead, the Draft Law factually refers to the transformation of local state administrations into public authorities, which simultaneously “replace” their own executive bodies of local self-government at the subregional and regional levels and ensure: implementation of the Constitution of Ukraine, laws of Ukraine, acts of the President of Ukraine, Cabinet of Ministers and other executive bodies; law and order; observance of the rights and freedoms of citizens; implementation of state and regional programmes of socio-economic and cultural development, other programmes, reporting on their implementation; interaction with local self-government bodies and territorial bodies of central executive bodies. The implementation of such a project will not lead to the liquidation of local state administrations, as envisaged by the 2014 Concept and the draft constitutional reform on decentralisation in 2015, but to their further strengthening and even transformation into full-fledged, dominant bodies in the territory.