Cities and rural municipalities

The Estonian Constitution guarantees the autonomy of local government, i.e. the right of local authorities to resolve and manage local matters independently. The Riigikogu, the Government of the Republic and ministries must respect the autonomy of local government. Naturally, rural municipalities and cities must also observe the Constitution and other laws in their activities. A local authority must respect people’s fundamental rights and freedoms, save taxpayers’ money and be honest in its dealings. Uniform fundamental principles of democratic local government in Europe are determined by the European Charter of Local Self-Government and its Additional Protocol.

A local authority is not a subsidiary body of the Government of the Republic or the ministries, but it is also not a state within the state. The idea of local government is that local matters are resolved by the community itself in a manner most suitable for the particular city or rural municipality. The state should provide support to a local authority: matters should be arranged so that cities and rural municipalities have the appropriate levers and enough money to promote local life. The state may also impose functions of the state on cities and rural municipalities by law, but in that case sufficient funds should be provided from the state budget to fulfil those functions. Local and state budgets are separate.

During the reporting year, the Chancellor helped to resolve problems regarding internal working arrangements in several cities and rural municipalities and checked whether local authority legislative acts (regulations) were in conformity with the Constitution and laws. The Chancellor also monitored that cities and rural municipalities perform public functions lawfully and do not violate people’s fundamental rights and freedoms.

Transfer of assets

Sillamäe City Government asked the Chancellor of Justice to check whether § 33(1¹) of the State Assets Act is compatible with the Constitution. According to this provision, within a reasonable time before transferring, or encumbering with a superficies interest, an item of immovable property that was acquired under § 33 subsection (1) clauses 1 or 3¹ or under the Land Reform Act, the rural municipality or city must ascertain the necessity of the particular immovable for the state. In the case of public interest, the state is entitled to acquire property in order to perform its functions, or to assign the land to the land reserve. The state must reimburse any beneficial expense incurred concerning the property, provided the particular expense has materially improved the property.

The Chancellor found that, in terms of an abstract assessment, no grounds exist to conclude that this provision violates the principle of legitimate expectations (§ 10 Constitution), the right of local government self-organisation or the financial guarantee (§ 154(1) Constitution).

On the basis of the previously applicable Land Reform Act, local authorities could not have developed a legitimate expectation that the state would maintain previously established public restrictions and would no longer interfere at all in land transactions. Although the current legal provisions limit the local government right of self-organisation and affect the income that cities and rural municipalities receive from transfer of municipal property, the objective of § 33(1¹) of the State Assets Act is legitimate (protection of the public interest) and the restrictions are clearly not disproportionate to that objective. The state has also sought to counterbalance the adverse effects of the restriction by introducing this provision.

The Chancellor explained that if Sillamäe City Council believes that § 33(1¹) of the State Assets Act violates the local government constitutional guarantee, the council can have recourse to the Supreme Court and apply for invalidation of this provision (§ 7 Constitutional Review Court Procedure Act).

The role of local authorities in financing care homes

Põlva Rural Municipal Council, Räpina Rural Municipal Council and Tartu City Council applied to the Supreme Court with requests for constitutional review, requesting that the court declare unconstitutional the failure to issue legislative acts laying down full financing from the state budget of the obligations imposed on cities and rural municipalities by § 22¹ of the Social Welfare Act.

Section 22¹(2) and (5) of the Social Welfare Act lays down exceptions to charging a fee for social services. Section 22¹(2), which refers to subsection (1) of the same section, requires a rural municipality or city to cover staff-related costs (carers’ salaries, the cost of working clothes and personal protective equipment, and the cost of health checks and vaccination, as well as the cost of training and supervision). Subsection (5) of the same section states. “If the income of the service recipient is lower than the average old-age pension for the second quarter of the year preceding the budgetary year published by Statistics Estonia, the local authority covers the difference between the costs paid by the service recipient and the income of the service recipient, but not more than the difference between the average old-age pension for the second quarter of the previous year and the income of the service recipient. Income is deemed to include the recipient’s state pension, funded pension within the meaning of the Funded Pensions Act, work ability allowance within the meaning of the Work Ability Allowance Act and income subject to social tax within the meaning of the Social Tax Act.”

In her opinion to the Supreme Court, the Chancellor also analysed how the conditions for financing the 24-hour general care service provided outside the home regulated by § 22¹(2) and (5) of the Social Welfare Act should be interpreted and how classification of public functions is related to financing this task.

Section 28(3) of the Constitution requires the state to promote municipal welfare services. Under § 28(4) of the Constitution, families with many children and people with disabilities are under the special care of the state and local government. In short, social welfare is the task of both the state as well as rural municipalities and cities (see also Supreme Court en banc judgment of 16 March 2010, No 3-4-1-8-09, para. 67). In the case of shared competence, the task should be performed by the level of governmental power that can best handle it in the specific situation (Supreme Court Constitutional Review Chamber judgment of 6 December 2002, No 5-22-5/16, para. 40).

The Chancellor did not agree with the position of Räpina Rural Municipal Council, Põlva Rural Municipal Council and Tartu City Council that § 22¹ of the Social Welfare Act imposes on cities and rural municipalities a new public task – a state task – which the state must therefore finance in full from the state budget on the basis of the second sentence of § 154(2) of the Constitution. In the Chancellor’s opinion, § 22¹ of the Social Welfare Act does not impose a new state task on cities and rural municipalities, but regulates the conditions for financing the existing local government task (organisation of the 24-hour general care service provided outside the home) in a partly different way than before. The conditions for financing performance of a public task do not constitute a new public task.

The 24-hour general care service provided outside the home is a social service organised by rural municipalities and cities (§ 20(1) Social Welfare Act). Organising provision of this service is their responsibility (§ 6(1) Local Government Organisation Act). The state requires rural municipalities and cities to perform mandatory local government duties on the basis of enhanced public interest (rural municipalities and cities have no discretion as to whether or not to perform the task). Special laws (the Social Welfare Act, etc.) regulate in more detail how a particular task is to be performed.

The Supreme Court en banc denied the request of Põlva Rural Municipal Council, Räpina Rural Municipal Council and Tartu City Council to declare unconstitutional the absence of provisions that would lay down full financing of the obligations imposed on rural municipalities and cities by § 22¹ of the Social Welfare Act from the state budget (see Supreme Court en banc judgment of 5 July 2024, No 5-23-38/48).

Municipal council working arrangements

The right of a municipal council member to information and the right of interpellation

The Chancellor of Justice was asked whether a rural municipal council member has the right to submit interpellations to the rural municipal mayor for an oral response about issues within the mayor’s competence. The right of interpellation of members of Kambja Rural Municipal Council is laid down in the statutes of Kambja Rural Municipality (§§ 35 and 77).

The Chancellor explained that a municipal council member must be able to exercise the rights arising from their mandate.

By interpellation, council members (mainly those belonging to the opposition) usually ask for an explanation of the policies being carried out or implementation of laws, regulations or municipal council resolutions, and may wish to discuss these issues at a council session. In other words, interpellation is a means of political control and information at the disposal of a council member, which allows them to monitor, for example, the activities of the mayor and members of the municipality government and to hold them to account.

If a council member submits an interpellation on a matter within the competence of the rural municipality government or mayor, refusal to answer cannot be justified on the grounds that the council does not have the power to decide on the matter: this does not make the council member’s interpellation unlawful. Otherwise, the right to submit interpellations to the mayor and member(s) of the municipality government would to a large extent lose its substantive meaning. However, a legal norm cannot be interpreted so that it is rendered essentially meaningless (Supreme Court Constitutional Review Chamber judgment of 2 November 1994, No III-4/1-6/94, para. 1).

A municipal council member must retain the right to enquire about legal acts, the obligation to comply with which has been imposed on the rural municipality government by law, regulation or a municipal council resolution. An interpellation is usually submitted when a council member sees a problem, for example when the mayor or municipality government has failed to do something or has not done something properly.

Section 26 of the Local Government Organisation Act regulates the right of a municipal council member to receive information. According to subsection (1) of this section, a council member is entitled to obtain copies of legislation, documents and other information of the municipal council and the government, except for data whose release is prohibited by law. Subsection (2) of the same section lays down that a council member is entitled to receive a response to their written question from the rural municipality or city government or a rural municipality or city administrative agency within ten working days after submission of the question. Section 5(9) of the Response to Memoranda and Requests for Explanations and Submission of Collective Addresses Act does not extend to this provision of the Local Government Organisation Act.

A council member’s access to information is not directly prohibited by any law. Access restrictions arising from the Public Information Act are also applied to provision of public information only to persons outside the public sphere. However, a municipal council member is not ‘any person’ within the meaning of the Public Information Act and they must have broader possibilities than any other person (Supreme Court Administrative Law Chamber judgment of 22 December 2008, No 3-3-1-74-08, para. 12).

However, the restricted information requested must be necessary for the council member to perform their duties. If necessary, the information holder can ask the council member to specify the purpose for which they ask for the information. Any refusal to supply information must be duly justified.

When requesting and providing information, the fundamental rights of individuals (§§ 14 and 28 Constitution), the needs for protection of confidential information and the general principles of processing personal data must also be taken into account.

The Chancellor has previously clarified a municipal council member’s right to receive information (see the Chancellor’s opinions of 15 April 2021, 9 December 2019, 12 March 2018, 5 February 2016) and recommended that the Riigikogu grant a municipal council member the right of appeal to the administrative court. The right of a municipal council member to receive information has also been dealt with by the Supreme Court (see Supreme Court Administrative Law Chamber judgment of 4 November 2004, No 3-3-1-55-04, paras 13-14; Supreme Court Administrative Law Chamber order of 22 December 2008, No 3-3-1-74-08, paras 9 and 12).

The second sentence of § 44(4) of the Local Government Organisation Act allows the council to declare the debate of an issue at a session to take place in camera.

Rural municipal council rules of procedure

Under § 156 of the Constitution, the local government representative body is the municipal council. This gives rise to the municipal council’s right of self-organisation, meaning that a municipal council is entitled to establish its working arrangements and procedural rules.

The Chancellor was asked to check whether the provisions in the rules of procedure of Hiiumaa Rural Municipal Council, which regulate preparation of draft municipal council legislation, are in compliance with the law. In the Chancellor’s opinion, no conflict with the law can be found in this respect. The Chancellor of Justice cannot require a municipal council to supplement its rules of procedure with provisions obliging the office of the rural municipality government to assist council members, members of rural municipality district assemblies and individuals in drafting legislation. Nor is the municipal council required to form a separate council office, although it may do so.

However, officials must, if necessary, assist presenters of a local public initiative in preparing draft legislation so that it meets requirements (about the duty to give explanations, see § 36 of the Administrative Procedure Act). This is stipulated by the principle of good administration (§ 14 Constitution). It does not follow from this that it would be unlawful if no such duty is imposed on the office of the rural municipality or city government in the municipal council rules of procedure.

Declaring debate of an issue at a municipal council session to take place in camera

The Chancellor of Justice was contacted by a rural municipality resident who was not allowed to follow online the session of Rapla Rural Municipal Council held on the same day. The public webcast was cancelled because the council chair had declared the session closed. No vote was held on closure of the council session (one item was on the agenda).

The Chancellor found that the law and the rules of procedure of Rapla Rural Municipal Council were not observed when declaring the session of the rural municipal council closed, and asked the rural municipal council to do so in the future.

Under § 44(4) of the Local Government Organisation Act, municipal council sessions are public. A municipal council may declare a session to be closed for the duration of debate of an issue if at least twice as many members of the municipal council vote in favour of that proposal as against it, or if disclosure of data pertaining to the issue under discussion is prohibited or restricted by law. The same is also laid down by the rules of procedure of Rapla Rural Municipal Council (§ 3(1) (first sentence) and (2)).

Under § 45(1) of the Local Government Organisation Act, issues which are within the exclusive competence of a municipal council are decided by vote. Other issues are voted on if at least one municipal council member so requests.

Declaring the debate of a matter closed at a municipal council meeting is an issue falling within the council’s exclusive competence and on which the council must vote. The position of the chair of the council cannot replace a council resolution passed by the required majority.

Making municipal council session materials available in a timely manner

When resolving a petition submitted to the Chancellor of Justice, it was found that Saaremaa Rural Municipal Council had failed to comply with the deadline set by the Local Government Organisation Act as to when the materials of a municipal council session must be communicated to the council members. The Chancellor asked the rural municipal council and its committees to organise their work in the future so that municipal council members receive all materials for the session in time.

Under § 43(3) of the Local Government Organisation Act, when convening a municipal council, issues to be discussed must be announced in the notice of the session. The invitation must be made known to councillors at least four days before the council meeting. Notice of the session must be communicated to municipal council members at least four days prior to the municipal council session. Together with the notice, session materials will be made available to municipal council members.

The Supreme Court has said that the requirement to comply with the statutory four-day deadline is not just a formality. This provision is in place to ensure that municipal council members are aware of the timing of the session well in advance. In this way they can, if necessary, rearrange their plans in order to gather at the council meeting and prepare for debate of the issues on the agenda (Supreme Court Constitutional Review Chamber judgment of 2 July 2004, No 3-41-16-04, para. 16).

Even if, in its rules of procedure, the municipal council has granted a council committee the right to exceed the deadline for submission of amendments (second sentence of § 16(3) of the rules of procedure of Saaremaa Rural Municipal Council), all session materials must be made available to council members by the time set by law. If the materials are sent to municipal council members only a day before the council session, this requirement has been violated.

Internal relations between the audit committee and municipal administrative agencies

Saaremaa Rural Municipal Council amended the provision regulating the activities of the audit committee in the statutes of the municipality. The wording of the amendment gives the impression that the requirements of the Public Information Act and the Response to Memoranda and Requests for Explanations and Submission of Collective Addresses Act apply to the response to the audit committee’s request for information or documents.

Concerning the committee’s right to receive information and documents necessary for its work, the Chancellor of Justice pointed out that relations of the municipal council’s audit committee with municipal administrative agencies and agencies under the administration of municipal administrative agencies are internal relations between the municipal council and the municipal administrative agencies and are not covered by the provisions of the Public Information Act or the Response to Memoranda and Requests for Explanations and Submission of Collective Addresses Act. Thus, the wording of this provision in the statutes of Saaremaa municipality is misleading. The Riigikogu may amend laws and, in doing so, does not have to take into account how this affects the response to a rural municipality council audit committee. However, this may lead to unintended consequences for the audit committee. The procedure for responding to the audit committee should therefore be set out in the statutes of the municipality.

The chair of the rural municipality council informed the Chancellor of Justice that since a draft common statute for municipality districts is being prepared, it is expected that the statutes of the municipality will also have to be amended, and the Chancellor’s recommendations can be taken into account when amending it. Based on information available to the Chancellor of Justice, it is planned to discuss amendments to the statutes of the municipality in the municipal council in autumn 2024.

Public consultation on the municipality draft development plan

The Chancellor of Justice was asked to annul the regulation of Viljandi Rural Municipal Council amending the Viljandi rural municipality development plan for 2022–2030. The petitioner asserted that, during the proceedings of the draft regulation, the chair of the municipal council had violated the rules of procedure of Viljandi Rural Municipal Council by failing to put to a vote, at the second reading, the proposals submitted during the public consultation on the amendments to the development plan.

According to the Chancellor’s assessment, the chair of the municipal council did not violate the law. During public consultation on amendments to the rural municipality development plan, all interested parties may submit proposals (see § 37²(5) Local Government Organisation Act). These proposals are not considered to be amendments within the meaning of the municipal council rules of procedure (cf. § 12(2) of the municipal council rules of procedure). (see § 3 for more details). In Viljandi rural municipality, preparation and processing of the development plan is regulated in more detail by the procedure for preparing the development plan and budget strategy of Viljandi rural municipality (see specifically § 3).

The Chancellor of Justice is not competent to annul or amend legislation. If the Chancellor finds that an act containing legal norms of a city or rural municipality contravenes the Constitution or the law, she proposes to the body that adopted the act to bring it into conformity with the Constitution or the law. If the contested provision has not been brought into conformity with the Constitution or the law, the Chancellor of Justice proposes to the Supreme Court that this provision be declared invalid (§ 142 Constitution; § 17 and § 18(1) Chancellor of Justice Act).