«Contra vires» principle and dualistic model of local self-government

Abstract

Background. In examining the competence of local self-government bodies, it is first of all necessary to recognize the fact that there is no unambiguous, generally recognized understanding in the national legal science of whether local self-government bodies should be empowered to act independently in all cases, except for those directly prohibited by law.
The problem of combining the principle of legal personality «contra vires» with the dualistic model of local self-government is still unresolved, which actualizes the importance of such research.
Analysis of recent research and publications has shown that, despite the existence of some scientific advances, the important scientific and practical problem on combining the principle of «contra vires» with the dualistic model of local self-government remains unresolved.
The aim of the article is to investigate the competence of local governments in Ukraine and Germany, as well as the question of combining the principle of legal personality «contra vires» with a dualistic model of local self-government.
Materials and methods. The main method used in this article is to analyze and compare the competences of local governments in Ukraine and Germany. In addition, such methods as dialectical, hermeneutic, systemic, induction and deduction, formal-legal and others were used.
Results. Competence at the level of rights, freedoms and legitimate interests is a component of legal personality. So, the competence of local governments demonstrates their degree of authority and determines how much autonomy a local government has. There is a scientific hypothesis that it is impossible and inappropriate to legislatively provide for an exhaustive and clear division of powers between local and executive authorities, given the two nuances (which are not exhaustive). It is suggested that, on the basis of the positive completion of the decentralization process, the improvement of community management practices and the deepening of professional development of personnel at the national level, the issue consideration should be given to moving away from the «ultra vires» principle in favor of «contra vires», which is prevalent in Europe.
Conclusion. The pace of decentralization reform should not be slowed down. As a consequence, in order to avoid the creation of a hybrid (combined and not tested in practice) model of activity of local self-government bodies, in which the principle of legal personality of the local self-government body will not correspond to the established model of local self-government, it should be amended accordingly to the article 19 of the Constitution of Ukraine.
So, the article 19 of the Constitution of Ukraine, in the part concerning local self-government bodies, it is expedient to amend and supplement as follows: «local self-government bodies are guaranteed the right to regulate all their affairs independently within the framework of the law and under their own responsibility». These changes would offset the dogmatic approach to the perception of theoretical foundations of local self-government and the lack of generalized information on the experience of hybrid models of local self-government activity. Moreover, such changes are also appropriate in view of the lack of sound theoretical knowledge in terms of the possibility of combining and successfully interacting of the principle of legal personality «contra vires» with the dualistic model of local self-government.