Most West European countries have specific IMC legislation rooted in public law. IMC legislation varies considerably between countries and is the result of specific national conditions expressing different levels of importance given to IMC. In most countries, IMC legislation does not exclude the possibility to establish IMC under private legislation. Box 9 illustrates the provisions of the IMC legislation in the Netherlands.
IMC legislation usually regulates: 1) contractual agreements between municipalities when they relate to the joint management of services or the delegation of the functions of one of the partner municipalities to another; 2) the creation of new legal entities to which municipal functions are delegated. IMC legislation sometimes envisages compulsory and optional delegation of some functions. Spanish legislation for instance envisages 18 mandatory services for the mancomunidades. The French communautés d’agglomération have both mandatory and optional competences. IMC legislation often does not allow IMC to deliver all the services of the partner municipalities, since in practice this would imply their disappearance.
Box 9: The Netherlands - The Joint Regulations Act
| In The Netherlands, the public forms of co-operation between municipalities are collectively called joint regulations. The rules on the structure and operations of these public forms are laid down in the Joint Regulations Act. This law is meant to make municipal cooperation more orderly and to increase the influence of the participating municipalities in the joint decision-making process.
The Act lists the following three basic models for public cooperation:
- Public authority. This consists of a governing body, an executive committee and a chairman. Advisory and administrative committees and services may also be created. Within the Joint Regulation Act, the public authority is the only cooperation structure with a legal form. It can therefore act as an independent legal structure. In practice, the public authority is created for undertaking a range of executive tasks, such as inter-municipal environmental agencies, public health services and social employment agencies.
- Joint agency. This is usually set up for relatively simple types of cooperation. This kind of agency neither has a hierarchical structure nor the status of a legal person, and it cannot exercise certain powers. It is usually furnished with a mere consultative role, for instance, in the area of welfare or public housing.
- "Core municipality" arrangement. Separate from or in conjunction with the above-mentioned types, an agreement may stipulate that certain powers shall be exercised by one of the participating municipalities only. The Joint Regulation Act provides the cooperating municipalities with a great deal of autonomy. It is thus possible, for example, to remain a purely nominal member for a transitional period instead of becoming a full player in the cooperation right from the signing of the agreement. This model is found in executive tasks such as contracting out the collection of household waste to a larger (neighbouring) municipality.
- There is a fourth form that is not named in the Act, the light agreement. Municipalities are allowed to sign an agreement on the basis of the Act without establishing any of the above-mentioned three institutions. In a light agreement, powers or competencies cannot be delegated to other bodies. Cooperating municipalities usually choose this form if they wish to mark off their rights and duties against each other. There are also private forms of cooperation in the Netherlands. The Act does not exclude the possibility of a cooperation agreement that creates legal persons incorporated under civil law.
: VNG International (2004)
The existence of specific IMC legislation is a critical element of the enabling environment because it facilitates the establishment of IMC by:
- Providing a clear sign of government policy support for IMC.
- Providing the necessary legal procedures and models.
- Enhancing the confidence of partners in the legality of their cooperation initiative.
- Establishing the rules that help avoid the most frequent flaws that might affect IMC (e.g. lack of preliminary study, opacity for citizens, weak control).
- Reducing the risk of litigation and facilitating the resolution of disputes.
In some countries, legislation regulates IMC in considerable detail with sometimes very constraining rules, while in others, it is more general in character and allows more flexibility in the IMC arrangements. In general, the IMC legal framework should not be too complicated or over-regulating in order to allow local governments enough flexibility to choose the solution that suits best the features of the specific IMC initiative.
Box 10: Some key issues that must be considered by the IMC legislator
- The areas in which IMC can be performed. For example, the law may say that certain legal forms must incorporate, as a minimum, certain competences (urban planning and economic development, for instance), or that the transfer of certain municipal functions to IMC is prohibited.
- The procedure for deciding which municipalities and/or institutions should be consulted before establishing IMC; rules on the preparation of a feasibility study etc.
- The procedure for the formal creation of an IMC (unanimity of the concerned municipalities, possibility of referendum, etc.).
- The mandatory provisions of an IMC agreement or contract.
- The nature of the legal body and its general regime (e.g. administrative centre, decision making rules etc.).
- The organs of the IMC entity and the general rules for its operation.
- The accounting rules, the rules on budget expenditures and revenue generation (including debt decisions, property and liabilities etc.).
- The status of the employees of the IMC administrative entity.
- The rules for control (legality of acts, finances) by state authorities (Court of Auditors, periodical reports to municipal councils, citizens’ rights to information, etc.).