The paper of Nicolas Schmitt at the Conference "Federalism: Russian and Swiss Perspectives"

Firt of all, one has to say that the Swiss municipal system fully corresponds to the love of Switzerland for diversity and democracy. It is why its description allows for a certain enlightment of the Swiss system as a whole. In particular, it reminds of the "fight" in Switzerland between identity and efficiency, and the popular will of preserving identity. Apart of this, the question of municipalities in Switzerland can be resumed in three words: it is a heterogeneous, a complex and a topical reality.

Heterogeneous, first of all, because the status of municipalities is in fact ruled by the cantonal law. It means that there are as many systems as cantons: 26 systems. Standardizing elements are quite seldom, even if important, in fact as important as municipalities themselves. Apart of this, there are in Switzerland about 2'900 municipalities, whose status are all the more various since their autonomy has been guaranteed by the Federal Constitution since 2000 only. In some cantons, municipalities are large and powerful; in other cantons, they represent local communities which enjoy almost no powers.

Complex, then, because the diversity of the systems, added to the variety of the questions addressed to the municipalities, means that the status of municipalities in Switzerland is extraordinary diverse. For instance there exist several types of municipalities. This diversity can be also translated in the vocabulary, as the names of the municipal communities themselves, but first of all of their institutions, vary greatly throughout the country, and not only because the differences between German, French and Italian language.

This reality is finally topical, because municipalities have to adapt themselves to changing times and globalisation, which require an increasing efficiency. The result is that problems/questions like allocation of powers between cantons and municipalities, financial equalisation between rich and poor municipalities, priority given to cities and towns and their suburbs, are currently in the news.

The regulation of municipal status belong to the cantons' main powers. As such, municipalities entered into the Federal Constitution only one year ago, on January 1^st, 2000. It means that the municipal system is very different from one canton to the other, and then that there are few common elements.

Switzerland is composed of 26 cantons with their specific peculiarities. Their borders - historically rooted - do seldom coincide with concrete elements such as language, religion, culture, geography or industry. It is therefore not surprising that the 2'900 municipalities are also very different. The largest of them is the city of Zurich with more than 300'000 inhabitants, and the smallest Largario in Ticino with about 10 inhabitants. In the canton of Fribourg, La Magne has only 35 inhabitants.

But beyond that kind of diversity, there are also differences between the types of municipalities themselves!

The political municipality exists everywhere. It brings together all persons who live on its territory and fulfils simultaneously political and administrative tasks. Its name varies according to the cantons: Gemeinde, 'Ortsgemeinde' (GL), commune (FR, NE, VS, TI), commune municipale (BE, VS, JU), 'Bezirke' (AI) etc.

But besides this very traditional type of municipality, there are also the so called "bourgeois" municipalities (also called "bourgeoisies" or 'patriziati' in Ticino) in 21 cantons or half-cantons. In order to make the situation even more complex, some cantons know other types of municipalities, which fulfils specific tasks (churches, schools, social welfare or even fire-fighters). There is an extreme complexity of the municipal institution.

The so called "bourgeoise municipalities" have a special importance, because every Swiss citizen is supposed to be native of a municipality. The Swiss citizenship is firstly based on the municipal citizenship. The municipality of origin is not the place where the Swiss was born neither the place where he currently lives, but the place where his ancestors have acquired the citizenship. These "bourgeoise municipalities" can manage its goods and in certain cases give some goods back to the "natives" under various forms such as money, wood or wine. But once again, the level of wealth of these municipalities is extremely different from one to another. It has its own organs and fulfils, from case to case, several specific tasks (public assistance, health), but always under the supervision of cantonal law.

2.2. Brief Survey of the social Frame: few unifying Elements, but nevertheless important

Common elements to all municipalities are seldom. Nevertheless they are important, as they concern the very essence of the system and one of its key elements: finances.

Swiss federalism is almost as complex as the most complicated Swiss clocks and watches. The rather small country¹ is divided into three levels of Government: the federal government (called "the Confederation"); 26 "sovereign" cantons and half cantons which have the power to decide the degree of autonomy to be granted to their local authorities; 2'900 municipalities which are the basic cells of the federal state.

In our country, the basic power belongs to the local authorities. Without constitutional or legal base, neither the Confederation nor the cantons have such a power. Of course, cantons have been transferring since 1848 a lot of new powers to the Confederation, what has strongly reduced their autonomy, and, as an indirect consequence, the autonomy of their communes. Although these constitutional amendments have been drafted most of the time in order to strengthen social justice and welfare, and not for the only purpose to reduce cantonal powers, there is a current trend to stop centralisation and try to give back some powers to cantons and their local authorities.

This importance given to the local level has - among others - two consequences that deserve attention. Firstly, the Swiss citizenship is granted at the local level, and secondly politicians always follow a career beginning at the local level and then continue at the cantonal and then untimately federal level. From that point of view, municipalities are the best reservoir for future politicians.

Concerning finances, all municipalities have their own financial sovereignty (see infra 3.3.), what gives them a remarkable autonomy, obviously endangered when municipalities are really too small. They can levy taxes, under the form of a certain percentage of the cantonal tax. This percentage is usually fixed by cantonal law in a certain margin, with a maximum and a minimum². As a result of that, Swiss public budget (incomes and expenditures) is roughly divided into one third for the Confederation, one third for the cantons and one third for the municipalities³.

The Swiss example shows that sovereignty has to be divided. Public communities all enjoy a certain financial sovereignty. Their independence is guaranteed and, as such, the efficiency of the government is higher than in a purely executive system. Like political parties and citizens, municipalities are required to participate to the decision-making process. This is all the more efficient since they have a matchless know-how in local affairs. Smaller, but nevertheless creative, they are obliged to be flexible and quick in fulfilling their commitments. In this way, as long as a local community is able to deal with a certain concrete task, it has to be granted the means to do it. As a matter of fact, it is just an implementation of the principle of subsidiarity, which has even been recognised at the European level by the Maastricht Treaty.

2.3. History of the Differentiation between Systems according to the Cantons

From the point of view of the municipalities, this sovereignty-sharing is translated into the fact that managing municipalities belongs to the basic powers of the cantons, and then that there are as many systems as cantons.

The difference of treatment between municipalities can be explained essentially for historical reasons. Thus, decentralisation is usually more functional in the mountain cantons, whose local communities, be they called communes, 'Bezirke' (districts) or 'Kreise' (circles), enjoy quite comfortable autonomy. In the 19^th century, the canton of Graubunden even proposed to introduce in its constitution a provision providing that cantonal laws had to be approved by a majority of municipalities. In fact, it would have meant the introduction of a bicameral parliament at the cantonal level, with a Chamber of the Municipalities playing the role of the Council of States in the Federal Assembly. For reasons that remain unclear, this provision has been rejected by the Federal Assembly, what by the way happens very seldom⁴.

On the contrary, especially in the western French-speaking cantons, the relation between the canton and its municipalities has been marked by the French experience of power centralisation and differentiation between urban elite and rural populations. The result was a limitation of municipal autonomy, which has reached its epitome in "canton cities" such as Geneva or Basel-Stadt, in which municipalities have a very weak political weight. In Basel-Stadt, for instance there are only one or two municipalities (according to the definition of the municipality) besides the City of Basel.⁵

As we have told, the level of autonomy of the municipalities depends on the cantons. But the latter won't conceptualise in a theoretic way the municipal autonomy in their constitution. In fact, the powers given to the municipalities will derive practically from the cantonal laws, rules and ordinances. All these legal texts transfer to the municipalities some fields of activities they are supposed to deal with in an autonomous way and under their own responsibility. As the years go by, these transfers implicitly outlined the municipal autonomy.

As the smallest social entity in Switzerland is the family, the smallest political entity is the municipality, which takes on some tasks as fundamental as housing, education and training, employment, culture, health, free time or social security as far as the family is no more able to deal with. For a long time, however, the concept of liberty has been linked more to the municipalities than to the individuals. Cantons, on their sides, had to work with other topics, such as defence, justice, economy and finance, especially at a time when there was no federal state so far.

Paradoxically, a small part of the municipal citizens has often tried to exclude the majority in order to become an elite, or even a local aristocracy. The Confederation has been obliged to intervene in order to guarantee the basic political rights. It is nothing but one example of the process which drove to the current intricate system of allocation of powers and functions between the three levels of government.

Even if it seems surprising, one has to know that till January 1^st, 2000, the local autonomy wasn't guaranteed by the Federal Constitution. The latter didn't even mentioned them, unless incidentally. For the Confederation, local governments depend exclusively on the cantons. Only in very exceptional cases, they are touched by federal laws, ordinances or programmes. This is an illustration of the basic duality of Swiss federalism: the strict separation between federal and local governments emphasises the role of the cantons, which are not only the centres of the social and cultural pluralism of the political democracy, but also the bridges between national and local levels of government.

The XX^th Century has witnessed increasing powers of the Confederation in comparison with the powers of the cantons. This evolution also concerns municipalities. But the federal Court takes care of that. In a 1963 decision, it recognised the protection of the municipal autonomy as it had been granted by the cantonal Constitution or other statutes; it meant the guarantee of the power of the municipality to act in legislative or executive topics, as long as they make use of this power and that the topic is not subordinated to any control by the state. This decision has been widened in a 1967 decision, protecting any local power, as far as municipalities enjoy a relatively broad room to maneouvre. The latter decision was important, because currently the legislature often works with general norms, containing programmes or unclear notions, what precisely allows executive authorities for this broad room to maneouvre.

It means that the executive has not the right to encroach upon municipal autonomy without a constitutional or legal base. In the same way, the implementation of federal or cantonal law by municipalities is protected, as far as the latter enjoy a certain room to maneouvre. A control upon municipalities is then necessary only if the lower authority has only a limited margin of assessment.

The lack of recognition of municipalities in the Federal Constitution took an end with the new article 50 of the 1999 Constitution. In giving a place to municipalities, the Confederation explicitly admits their importance for the country's cultural richness. Nevertheless, municipal autonomy remains guaranteed only within the limits fixed by cantonal law, what reminds that this autonomy belongs to the cantonal powers.

From a historical point of view, one has to note that article 50 results from a process which began with a 1995 draft which was clearly less elaborated that the current provision. Before the Council of States⁶, another question has arisen: is it necessary to quote in this provision cities and agglomerations, too? Some MPs have considered that it would be a violation of the equality of treatment against the municipalities as the most traditional lower level of decentralisation. But at the end a majority has decided that they had to be included, since it was supposed to be the constitutional translation of an actual reality⁷.

The same topic arose before the National Council⁸, but with another questioning: the quotation of municipalities within the provision dealing with the co-operation between Confederation and cantons (Art. 44 1: "The Confederation and the Cantons shall collaborate, and shall support each other in the fulfilment of their tasks"). A minority of MPs wanted to insert municipalities in this frame, but this proposal has finally been rejected, according to the argumentation of the rapporteur Joseph Deiss⁹: "If this provision sounds ' The Confederation, the Cantons and the Municipalities shall collaborate [:]' you have the impression that these three partners have equal quality and powers, what is obviously not the case'¹⁰.

These debates allow to realise that, even if municipalities are mentioned in the Constitution, their powers will continue to depend very tightly on cantonal legislation. The constitutional provision leaves to the cantons the large power of appreciation they already enjoyed. Moreover, notions such as "take into account the possible consequences", "cities" and "agglomerations" are so vague that this provision doesn't revolution the system. It means only that the position of municipalities within the legal Swiss system hasn't reached yet the level of institutionalisation some would like them to reach.

The characteristic of the Swiss territorial organisation is its complexity. As Denis de Rougemont said rightly, 'Federalism is marked by its love for complexity, in opposition to the rough simplism of totalitarian regimes'. Despite the fact that some authors consider that a federal regime is appropriate for larger States (United States, Russia, Canada, Australia), the tiny Switzerland (42'000 km²) is divided into 26 cantons and half cantons (exactly 23 cantons, among them 3 are divided into half cantons) and some 2'900 municipalities.

But we shall consider only the political municipalities, that we meet in every canton. They have their own organisation, with two or three organs. The detailed regulation depends on the canton, but there are usually an executive and a legislature. The executive is called in general "Communal [municipal] Council", but the name vary. It is elected by the citizens of the municipality and composed of 5 to 10 members. Its president is elected either by the citizens or by the Council itself according to the cantons, and he wears several names¹¹, quite rarely the name of "Mayor" which is current everywhere else. The supreme organ remains the assembly of all citizens, often called "Municipal Assembly". It is usually replaced in the larger municipalities by a "municipal Parliament" usually called "General Council", but names also vary¹². If there is such a parliament, institutions of direct democracy (municipal initiative and municipal referendum) have to exist, too. But at the municipal level the principle of separation of powers between legislature and executive is less clear, what can be comprised as a consequence of the old co-operative structures.

Tasks which are not expressly delegated to the federal or cantonal power usually belong to municipalities. The latter have moreover to manage their financial and administrative patrimony. They establish therefore a local book-keeping¹³ which has to respect the cantonal prescriptions. They also have to prepare a budget, which will be submitted to the local legislature, assembly or parliament. The financial control is exercised over firstly by the financial commission of the municipality, and secondly by the cantonal administration, under the form of a supervision of the book-keeping. The most important feature of local administration is that municipalities have their own fiscal sovereignty. Incomes of taxes and services usually represent the largest part of the financial means the municipality needs to fulfil their tasks. Even if the situation differs from one canton to another, they are actually responsible for building local roads and places, water supply and purification, primary schools etc. More recent tasks such as social assistance, lower education, town and country planning, environmental protection, sport, leisure, culture and cemetaries belong also largely to the municipal power.

In Switzerland, the public sector is divided into three levels: municipalities, cantons and Confederation. As we have already mentioned, allocation of tasks and finances vary from one canton to the other. Nevertheless, one can consider that the allocation of tasks between the three levels of government is organised according to the principle of subsidiarity. But Swiss are used to make a pragmatic use of this principle, which is not recognised as such by the federal Constitution. Pragmatically and according to the historical evolution, a task is transferred to the upper level of government as soon as the lower level is not or no more able to fulfil it. Trials to conceptualise the principle have failed so far.¹⁴

Nor is it easy to apply this principle at the local level. This has been clearly expressed in a Report drafted by the Government of the Canton of Fribourg, which deals with subsidiarity at the local level: "It is a general principle which claims for a "bottom-up" building of the State's structures. It gives a presumption of power to the municipalities, which are then supposed to provide for an efficient allocation of services. However, differences of size and capacity among municipalities in the canton of Fribourg clearly show that this principle cannot be used generally for the allocation of tasks. A strict implementation of this principle would also drive to admit the primacy of municipalities over the State. The latter would then exercise only a secondary activity, what is contrary to the principles of federalism" (transl.).

During this period of budget restrictions, there are many examples of law drafts about allocation of powers between public communities, despite the fact that this field seems extremely difficult to manage. At the federal level, for instance, a former draft of a new allocation of tasks between Confederation and cantons has aroused many hopes, but has been finally "a tempest in a glass of water"¹⁵. As legal things proceed quite slowly in Switzerland, a new draft has been recently launched, which should be more successful than its ancestor.

At the local level, as the statute of municipalities vary from one canton to another, it is impossible to describe the system of allocation of tasks throughout the country. Then let's examine one canton, for instance Fribourg. It is an interesting case, because the question of municipalities is more carefully studied there than in another cantons. It is probably due to the fact that this canton belongs to the cantons with the largest number of (small) municipalities.

The allocation of tasks in Fribourg has been studied by the Institute for Federalism, mandated by the canton. A parliamentary initiative required the draft of a law devoted to the allocation of tasks between the canton and its municipalities, at the same time than the trials made at the federal level. This demand was supported by the political discontent (from both sides, canton and municipalities) about the current situation. As a matter of fact, the current allocation of tasks, which is the result of a long history, has become so incredibly intricate that it was no more possible to follow clear management principles. The new law was designed to define a clear allocation of tasks, taking also into account financial elements. Basic tasks were to be allocated to the authority which was assumed to fulfil them in the most efficient way. A delegation of some control, inspection, information and approval had also to be set, in order to strengthen the efficiency of the decision-making process.

Swiss federalism has three levels, but the delimitation between the cantonal and local levels is not based upon the principle of optimisation. It is the simple result of politic, historic, socio-cultural, ethnic or geographic factors. The result is that any proposal to amend any element of the delimitation is immediately fought against, independently of its possible interest. It is therefore extremely tricky to define the political level which is the best to fulfil a new task, and even more difficult to transfer an ancient task from one level to another.

After long studies which took into consideration more than hundred laws, a first draft has been presented under the form of a frame-law including three lists of basic tasks which have to be allocated either to the municipality or to the canton or to both (see list in annex). This model has an interesting scientific value, but nevertheless the canton has finally decided not to adopt any frame-law. In fact, it launched only some sector-based amendments. A first draft, concerning about ten cantonal laws, has been presented on August 16^th, 1995. These amendments have been adopted and entered into force on January 1^st, 1997. The political complexity of this topic is illustrated by the fact that there hasn't been any second draft so far.

Despite their complexity (or precisely because of that), municipalities are not political entities whose structure are defined to all eternity. On the contrary, they represent a very living phenomenon, which is in constant mutation. The attention this complexity deserves is nothing but the price to pay for preserving the diversity in Switzerland.

At the local level, one has to note¹⁶ that the traditional political municipality is most of the time too small¹⁷ to grant with efficiency and economy the local goods and services its population is waiting for. This is very clear when we compare some threshold of population with the effective population. It becomes then necessary to "re-invent" the municipality, at least through the intercommunal co-operation, unless some of them have the political will or the financial means to assume their smallness.

Municipalities are allowed to have their own fortune. This faculty derives from their fiscal sovereignty. Because of the sometimes huge differences between municipalities (population, surface, income), it is essential to foresee an efficient system of horizontal financial equalisation (it means: between municipalities of a canton). Nevertheless, there is a real gap between theory and practice, because there is very little political consensus. But it is dangerous to neglect this financial equalisation, because some municipalities could suffer an insufferable pressure from citizens who pay too high taxes.

As for the allocation of powers, it is impossible to describe this topic at the Swiss level. We have to consider one cantonal example. From this point of view, Vaud is representative¹⁸ of a canton with many small municipalities. The situation is marked by strong differences between municipalities, despite the current system of financial equalisation, which appears to be inefficient.¹⁹

Some municipalities are very wealthy and can therefore cover their public expenditure, invest and develop their non-compulsory benefits, without charging their citizens with a too heavy burden. On the contrary, other municipalities have the greatest problems to balance their budget, despite the fact that their citizens pay very high taxes.

There are various reasons for such inequalities. They have to do with the age structure of the population, the geo-strategic situation of the municipalities (e.g. with a view on the Lake of Geneva or not:), but also to the non-compulsory benefits they are obliged to offer to their citizens (especially in the urban areas), or even to reimburse the local debt. Nevertheless, most of the time, the difference between "rich" and "poor" municipalities is not due to the expenses, but to the income, and especially to the presence (or the absence) of "rich" tax-payers. The problem is that most of the time the presence of such wealthy persons (or firms) depends on factor upon which the municipalities cannot have any influence, for instance the beauty of the landscape or the regional economic development. The result is a vicious circle: a disadvantaged municipality will be obliged to raise high taxes, and therefore the wealthiest tax-payers will flee and make the municipality always poorer. On the contrary, a privileged municipality will be able to maintain a reasonable (or even low) tax pressure, and therefore attract several "interesting" citizens.

In order to "break" this vicious circle, the canton of Vaud has taken some measures, especially during the 25 last years. It reminds us that these inequalities are always growing up. The measures which have been taken mostly consist - apart from direct financial grants to the poorest municipalities - in a system of indirect vertical equalisation. This means a system which divides up municipalities into several categories (there are about 13 in the canton of Vaud) and then counterbalance the calculation of some invoices sent to the municipalities for their participation to shared tasks. The wealthiest municipalities pays also more, and the poorest pay less.

This system is the same as the federal one. And like the federal one it proved itself useless. That's the reason why cantonal authorities have created a new system of horizontal equalisation (between municipalities themselves), with the introduction of a Fund for direct horizontal equalisation. In this context, the term "direct" means that financial transfers are no more linked to defined tasks, but are global.

From that point of view, it is very interesting to note that in the Canton of Vaud, a popular initiative aiming at the replacement of the different taxing rates between municipalities by a unique rate, has been widely rejected by the voters in June 2001. Once again, it shows the strong attachment of citizens to their local authorities, and even to their most unefficient specificities. In other words, it is the price citizens agree to pay in order to preserve a very diverse society.

Another very topical matter is the merging of municipalities. As Swiss municipalities are usually quite (or even very) small, they are often no more in a position to fulfil their tasks with efficiency. It is the reason why there are always more and more people (specialists, experts, politicians) who claim for the merging of the small municipalities. But this merging is usually not appreciated by the citizens themselves.

First of all, a statement has to be done again: Switzerland is a country in which there are - proportionally to the territory - many municipalities, and then small municipalities. On average, with about 2'900 municipalities for 7 Mio inhabitants and 42'000 sq. km, the Swiss municipality represents 2333 inhabitants and 14 sq. km, what is not very large. France, where the proportion is very much like Switzerland²⁰, openly expresses its concerns about the problem of the small size of its municipalities and of their financial weakness. This problem of the French municipalities is even called the "French deficiency" on the western side of the European "ridge of development"²¹.

In such a context, it is easy to imagine that merging the municipalities is the panacea. The table presenting the evolution of the situation in Switzerland for the 35 last years shows that it is not exactly the case. In fact, despite all discussions related to the excessive number of municipalities, the situation has substantially changed only in two cantons, Thurgau and Fribourg.

Moreover, the case of Thurgau is quite specific. The change took place within the frame of a large reorganisation of the municipalities, required by the new Constitution, which was adopted on March 16t^h, 1987 and entered into force on January 1^st, 1990. Its Par. 98 Nr. 2 foresees that this reorganisation has to take place within 10 years and that its goal is to reach the number of "only" 80 municipalities. The goal has been achieved so far. Nevertheless, one has to note that the reduction of the number of municipalities is not exactly due to the policy of merging, but rather to the abolition of the so-called "municipal dualism" dating back to Napoleon. It meant the co-existence of "municipal municipalities" ("Munizipalgemeinden") and "local municipalities" ("Ortsgemeinden"). This specificity was unique in Thurgau, and these two types of municipalities have been replaced by one type only. It explains why this unique cantonal experience cannot be transposed elsewhere.

In the Canton of Fribourg, which has the Swiss "real" merging record, a report published on October 20^th, 1998 describes its policy aiming at merging municipalities. It presents the incredible differences - especially fiscal, as in France - between municipalities, the necessity to have municipalities which are able to deal with more complex tasks, but also the difficulties and the costs of a policy of voluntary merging, based upon the guaranty given to the municipalities that their merging won't create any financial disadvantage. The conclusion of this report is that, in a quite urgent situation, it becomes unavoidable to think of compulsory merging and of reconsideration of the too generous financing. On November 11^th, 1999, the Canton has adopted a Decree about merging of municipalities, which entered into force on January 1^st, 2000 and will last till 31^st December, 2004. Municipalities which merge before that date will enjoy generous conditions; after that:

The constraining method has also been discussed in the neighbour Canton of Vaud²². The pilot study of the new cantonal Constitution²³, which considered the difficulty of any discussion on this topic, kept silent about the number of recognised municipalities²⁴. Nevertheless, experts have insisted on the necessity to reduce their number, but at the same time they have recalled the difficulties of merging and the length of the process. Besides this expert group, another group called A propos has presented a "non official" pilot study, which is less diplomatic and foresees (Art. 84 Nr. 2) that the canton comprises between 19 and 30 municipalities. It has to be noted that this second group doesn't give any clue about the way to divide through ten the current number of municipalities.

By the way, the most interesting thing to be noted in certainly that, after having started its works, the Constituency of the canton has completely abandoned any idea of compulsory merging, as politically suicidal. There is perhaps no better evidence of the strength of the municipal identity: and also of the notion of "price to pay in order to preserve diversity" we have already mentioned above.

An interventionist way is also not provided for in the most recent Cantonal Constitution, in the canton of Neuchatel²⁵. It foresees in its Art. 90 Nr. 3 that the State favours merging of municipalities, but that this shouldn't happen without the consent of the municipalities.

For instance, the draft²⁶ of the new law about municipalities in the Canton of Bern explains that it is not possible to apply in this canton a merging policy that is as strong as the one which has been applied in the canton of Thurgau. Moreover, even if the Canton supports a policy of voluntary merging, through advises or financial help, it is politically neither possible, nor even desirable, to force municipalities to merge if they don't agree.

In the same way, the Report of the Canton of Lucerne called "Rechenschafts- und Planungsbericht des Regierungsrates zum Teilprojekt Gemeindereform von Luzern '99"²⁷, of August 19^th, 1998, notices that very few cantons have endeavoured a reorganisation of their municipal systems, and that no territorial reform has been completed so far.

An explanation to this phenomenon - or even this lack of phenomenon - is given by another official document, the answer of the Government of Zurich to a parliamentary question²⁸ about the minimal size acceptable for municipalities. In its answer, the cantonal Government recalled that there was in Switzerland no study dealing with the minimal size economically admissible for a municipality, and that according to a study made by the University of St-Gallen, administrative costs finally depend not so much on the size of the municipality. Efficiency is then a question of structure rather than a question of size. The result is that it is better to reinforce intercommunal co-operation and allocation of powers than to force the merging of municipalities. Moreover, merging the municipalities moves the citizens away from their local roots, what is not suitable during this period of globalisation and lack of local identity. The same conclusion has been drawn by the draft of the new Constitution of the Canton of Berne²⁹, which has written in its Art. 109 the principle of intercommunal co-operation, but has recalled that municipalities were important communities whose status had been formed through centuries.

Once again, it is not surprising that centuries of history and identity are not so easy to replace by considerations of administrative efficiency and scale savings.

Canton	In 1961¹	In 1998²	Variation
ZH	171	171	=
BE	492(409)	400	-9³
LU	107	107	=
UR	20	20	=
SZ	30	30	=
OW	7	7	=
NW	11	11	=
GL	29	29	=
ZG	11	11	=
FR	284	247	- 37
SO	132	126	- 6
BS	3	3	=
BL	74	86	+ 12
SH	35	34	- 1
AR	20	20	=
AI	6	6	=
SG	91	90	- 1
GR	221	213	- 8
AG	233	232	- 1
TG	201	103(80⁴)	-98(-121)
TI	253	245	- 8
VD	388	385	- 3
VS	169	163	- 6
NE	62	62	=
GE	45	45	=
JU	83	83	=
CH	3'095	2'929	- 166

It is difficult to express the point of view of local communities, as their status is different from on canton to another. But one thing remains constant: local communities are very strongly attached to their existence, what is obvious through their reluctance towards any merging.

The Canton of Fribourg comprises 254 municipalities, most of the time quite small. According to the list published in the Systematic Collection of cantonal Law, 19 of these municipalities have less than 100 inhabitants, 46 more than 1'000 inhabitants, and only one (the city of Fribourg itself) more than 10'000 inhabitants. The majority of them comprises between 100 and 1'000 citizens. It is easy to understand that the smallest municipalities are hardly manageable, as they get only few tax resources - unless a rich tax-payer lives in - to face their compulsory expense. Moreover, it becomes difficult to find citizens who accept to be elected to the municipal organs. Nevertheless, it is almost impossible to convince them of merging for efficiency purposes. Citizens are extremely attached to their local communities.

An example illustrates this fact. On October 17^th, 1995, a draft law has been presented to the Parliament of Fribourg, whose aim was to realise the largest merging ever made in the canton: the four municipalities of Farvagny-le-Grand, Farvagny-le-Petit, Grenilles and Posat were supposed to merge into only one, Farvagny. In fact, a first trial had been made in 1971, but it needed 25 years of discussions to draft a law. Its utility is nevertheless obvious, as for instance the municipality of Grenilles is so small that it hasn't been possible to find candidates for the 1994 elections. But to realise this merging, the canton had to spend more than 2 millions Swiss Francs (Frs. 2'241'402.- exactly) as an "encouragement premium". It means then that 25 years of work and millions of grants are necessary to merge four too small municipalities. This reminds us of the difficulty to amend structures citizens are identifying themselves with.

The merging of municipalities create so many problems that they remain quite seldom. In order to improve the functioning of their municipalities, cantons prefer to work with the pragmatic mean of the intercommunal co-operation, whose advantage is that it doesn't touch the municipalities' borders. This co-operation is for instance expressly written in the new Constitution of Berne, but also in all recent laws dealing with municipalities.

It is also a tricky topic, which has been tackled by very few cantons. Nevertheless, relations between a municipality representing the "city centre" and its "golden belt" are often quite difficult. The centre complains about supporting the costs of all infrastructure, especially for public transportation and culture, operas, concert halls, theatres etc. The centre, on the contrary, is not interested at all in participating to these costs.

In the Canton of Berne, for instance, an expert committee preparing the new Constitution, has considered that the specific form of the agglomeration was justified only in very few cases. As a result, the intercommunal co-operation is enough. Fribourg has been the first canton to adopt a law on agglomerations³⁰, but since it has been adopted, implementation measures have proved to be almost impossible.

Nevertheless, one has to recall that agglomerations have made a remarkable entry - even if sometimes contested - in the new 199 Constitution (see supra 2.4.).

In Switzerland, a question remains open: did federalism contribute to the good functioning of democracy, or on the contrary did democracy contribute to the development of federalism? Whatever the answer could be, we have to take care that values and fundamental principles which can be found at the local level don't dissolve in the day to day political practice. In fact, politicians usually base their programmes on short terms goals, without taking into account their global impact. On their sides, courts are not always the best places to preserve the bases of the political and legal order. It's the reason why questions related to vertical co-operative federalism have to be considered as the most important topics of constitutional law and political analysis.

When examining the more than 700 years history of the Swiss (con)federalism, it is not difficult to understand the general relevance of local communities. This is what Denis de Rougemont expressed in the following terms: 'A region must be a cluster of townships'³¹. Higher entities, since they cannot play the role of human communities, cannot be efficient without autonomous municipalities. Therefore, as Erich Bapst said rightly: "Federalism without autonomous communes? Impossible!"³².

The study of the most recent legal provisions dealing with municipalities shows that the latter are concerned by an extensive legal research concerning first of all intercommunal co-operation and allocation of tasks. Of course, municipal powers vary according to the cantons, and the problems are not always the same. In the canton of Basel-Stadt, for instance, there are only 2 or 3 municipalities.

In this period of globalisation, intercommunal co-operation has to be strengthened. In the Canton of Fribourg, a legal amendment entered into force on November 1^st, 1995, follows this goal. In order to extend and to reinforce this co-operation, to give more efficiency and quickness to the associations of municipalities and improve their transparency, it has been decided - among others - that these associations will have the right to follow several goals, that their delegates will be members of the municipal executive, that basic amendments of their statutes will need the consent of only three quarters of the municipalities and that the conditions for the intervention of the cantonal Government in order to impose a co-operation will be more flexible.

According to Prof. Bernard Dafflon, local public communities are able to organise and to adopt economic spaces which excess the border of the municipalities; as a result of this, the development of intercommunal co-operation in Switzerland is the result of an excessive fragmentation of local communities in order to reach a certain efficiency. But it has also disadvantages: the multiplication of ad hoc purely local organisations of collective service drives to a waste of substance of direct democracy and over-costs in the information or the decision-making process. It represents the emergence of a fourth level in the federal structure, between the municipality and the canton. It makes even more complex a system which is already marked by its complication. In the same way, merging municipalities would be a more attractive solution from a democratic point of view, because it preserves the link of proximity between citizens and their basic political space.

An interesting parallel can be made between tendencies at the municipal and tendencies at the cantonal level, since both sides try to come closer in order to reinforce themselves. According to this will of union, the Canton of Fribourg has been the first to draft a law on agglomerations, whose goal is to introduce a kind on intermediary level between canton and municipalities. At the cantonal level, there are exactly the same kind of intercantonal arrangements, which are a sort of intermediary structures between Confederation and cantons. Both types of structure are currently at their beginning, nevertheless they represent the latest tendency about the institutional laying-out of the country. They also represent identical concerns about the necessity of co-operation.

What is almost incredible is that the claim for merging at the municipal level (despite their low level of acceptance in the politic reality) has been recently followed by a claim for merging at the cantonal level. In several cantons, in fact, some politicians ask quite firmly for a merging of cantons, or even for changing cantonal boundaries, in order to replace the 26 cantons by 5 or 6 "regions" which have a certain "critical mass", especially in comparison with European regions. It is hardly possible to find a better illustration of the dialectical conflict between efficiency and identity that takes place in our country³³. It also reminds that the engine of localisation is emotion.

In 2000, Switzerland has about 2'900 municipalities, whose average population is then 2'333 inhabitants (2'150 in 1986)³⁴. There are also only 16 cities with more than 30'000 inhabitants, but 230 municipalities with less than 100 citizens.

The political municipality exists everywhere. It includes all persons living on its territory and assumes some political and administrative functions. Its appellation differs sometimes according to the cantons. In order to make the situation more intricate, there are also in 21 cantons "bourgeoise" municipalities (called "patriziati" in Ticino), and even some special types of municipalities assuming specific tasks, such as school, church, public assistance or fire-fighters. In other terms, there is an extreme complexity of the municipal institution.

Concerning political municipalities, their organisation and tasks are defined in every canton globally by the cantonal constitution, but in concrete terms by the cantonal law. Executive functions belong to a collegial organ elected by the citizens of the municipality. The name of this authority and of its president, as well as the election mode of the latter, vary from one canton to another. Legislature consists in six cantons and half on the assembly of all citizens, but other cantons have created the possibility of so-called "municipal parliaments" for larger municipalities.

Municipalities have many tasks, which are part of a large local autonomy. Every municipality has its own regulation that it writes itself and submits for ratification to the cantonal authority. Moreover it is submitted to the high supervision of the canton.

It is essential to keep in mind that municipal powers very greatly from one canton to another. Nevertheless, they usually fulfil more or less following tasks: internal organisation, management of the municipal patrimony, finances, granting the Swiss nationality to foreigners if there are no bourgeoise municipality, primary school, sometimes secondary school (if there is no school municipality), local police, social assistance, local town and country planning, equipment, protection of environment, water supply, energy, sport and culture.

Finally, it has to be noted that the financial autonomy of municipalities also vary from one canton to another and that there are as many systems of financial equalisation as cantons. Nevertheless, municipalities have a real fiscal sovereignty and can define their tax level, into a certain margin defined by the canton. The result is that the global budget of Switzerland could be roughly divided into three: one third for the Confederation, one third for cantons and one third for municipalities, what is a very large percentage in international comparison.