Case: In a city with county rights, the youth council of the city set a goal of preparing a scholarship program for the best students of secondary schools. To achieve this, after examining the needs of young people and the financing possibilities of the initiative by the county, based on art. 5b para. 6 of the Act on Local Self-Government, they submitted a proposal to the city’s president to initiate a resolution on the establishment of a scholarship fund. Unfortunately, the president informed them that he would not initiate the resolution procedure because he did not see the validity of such an undertaking. Therefore, the youth council once again submitted a request, this time to the chairman of the city council, demanding the direct initiative of the resolution to be granted to them.

Can the city council grant the youth council the initiative of a resolution?

IREPSO’s answer:

First of all, it should be noted that in the case of a city with county rights, the Act on Local Self-Government will apply, not the Act on County Self-Government, as according to art. 92 para. 2 of the Act on County Self-Government: “A city with county rights is a commune carrying out county tasks on the principles specified in this Act.”

The Act on Local Self-Government does not provide much information on the initiative of a resolution in the basic unit of local government (similarly applicable laws referring to the county and voivodeship levels). The Act explicitly grants this right only to residents (art. 41a of the Act on Local Self-Government) and the head of the commune (through the wording of art. 30 para. 2 point 1 of the Act on Local Self-Government, i.e. preparing draft resolutions of the council of the commune is his responsibility). However, these provisions do not indicate that these entities are the only ones entitled to the initiative of a resolution. Draft resolutions can also be prepared by the chairman of the council, council committees, or councilors. Entities to whom the initiative of a resolution has been granted – in situations where the legislator has not provided for it – should be indicated in the commune’s statute (cf. art. 3 para. 1 of the Act on Local Self-Government).

Therefore, the commune decides in its statute who has the right to initiate a resolution. Just stopping at this point could give the impression that the answer to the question should be positive. This conviction may be further strengthened by the fact that the youth council is an (consultative-advisory-initiative) organ of the commune, but has its own tasks and competences.

However, one important thing should be noted – the youth council of the commune is a facultative organ and does not strictly fit into the dichotomous division of the commune’s organs into resolution-making (council) and executive (head of the commune). The youth council stands somewhat apart from this division – formally and legally as an organ functionally subordinate to the council of the commune, but de facto consultative-advisory-initiative towards both of these organs.

The legislative initiative under the municipality’s statute can be granted to entities directly involved in creating local law. Therefore, individual statutes grant the legislative initiative to, for example, council clubs, a certain number of councillors, the chairman of the municipal council, etc. However, these individuals are part of the personnel of the decision-making body. They are not organs themselves, but without them, the municipal council could not function. Thus, granting them the legislative initiative should be seen as an expression of ensuring the correct and necessary functioning of the decision-making body. However, granting such competence to a youth council cannot be considered necessary for the proper functioning of the municipal council.

Any potential legislative initiative from entities such as a youth council must take the form of a citizens’ legislative initiative, although not in the strict sense. It should not be equated with the citizens’ legislative initiative under Article 41a of the Act on Local Government, which concerns physical persons rather than an entity. The potential legislative initiative of entities such as youth councils fits into the concept of a broad citizens’ initiative, where in addition to residents, we also consider other entities of civil society not falling within the concept of mandatory bodies of the municipality. However, this understanding of the term “citizens’ legislative initiative” would be a significant novelty in legislation.

Therefore, in summary, any right to a legislative initiative should be granted either mandatorily or facultatively only by the legislator. In the current legal state, the municipal council cannot grant such competence to a youth council. Nevertheless, the youth council has been granted the mandatory competence to submit an application for a legislative initiative to entities that have been granted the right to a legislative initiative (the so-called indirect right to a legislative initiative), as described in the case.