The CEAL and his transposition to the portuguese legislation: history of the legislative and jurisprudential evolution of the portuguese local legal regime from 1985 until to our days
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Abstract
The European Charter of Local Self-Government (Ceal), is in force in the Portuguese legal system since April 1st, 1991, being the main source of international law of the Local Authorities Law, next to the Portuguese Constitution (CRP) embodying, to a relevant extent, the principle of local autonomy.
Therefore, in this article, we pay a visit to the classical concept of local autonomy, its crisis and the birth of new concepts, as well as the resistance to these "new winds", to conclude that the "in force" term, used in the CRP, strongly represents the concept of local autonomy, very close to the classical concept, but adapted to the present times, which lends it a greater amplitude than the one resulting from the definition in Article 3, nr. 1 of Ceal.
As such, we have developed the constitutional meaning of local autonomy, in its various dimensions (the right to existence, the institutional guarantee, etc.), identifying the different interests or powers included in it, with the help of extensive case law of the Constitutional Court on the matter: programming autonomy, autonomy in territory planning, administrative autonomy, personnel autonomy, regulatory autonomy, financial autonomy, etc ...
We have also identified the breach of Article 11 of Ceal, as in Portugal does not exist an appropriate legal protection system of local autonomy, one who would consecrate the right of direct appeal to the Constitutional Court, according to Recommendation 323 (2012) of the Congress of Local and Regional Authorities, which sometimes involves a deficit in the protection of local self-government, as happened in the specific cases that we refer as examples (the territorial reform of parishes, the privatization of multi-municipal waste systems, the Municipal Assistance Fund, the new Statutes of ERSAR).
Finally, we identified the main legislative developments which embodies and implements local autonomy, whether in the field of the duties and competences, or financial autonomy, is also on administrative supervision, concluding that local authorities gained an enormous importance in Portugal over the 30 years of Ceal and 40 years of CRP.Keywords:
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