How can we cooperate? The example of France
Katia Buoro, Xavier Desjardins, 2012
The modalities of cooperation are very diverse. They differ both in the type of legal union, from the most flexible to the most rigid, and in the nature of the cooperators. Most often it is cooperation between neighbours, but sometimes also between territories that are very distant from each other.
After showing the failure of mergers in terms of municipalities, we will see the different versions of intermunicipality in France. Because of the many legislative attempts to promote intermunicipality, France is a laboratory of legal forms of intermunicipal cooperation …
Cooperation sometimes goes beyond borders : this is the case of decentralised cooperation or cross-border cooperation. In such cases, the territorial logics of local authorities contradict or compete with those of states.
Why don’t we merge the communes ? Back to a French singularity
If the communes are too small, why not merge them ? Attempts have been made, always followed by failure, while all other European countries have conducted such merger policies. How to explain this singularity ?
Even before the French Revolution, Robert de Hasseln, Condorcet and Letrone had suggested a new, more regular partition of the territory, disregarding the sociological and human considerations that had presided over the territorial divisions under the Absolute Monarchy. Subsequently, in 1789, Thouret tabled a report on the reform of the territorial structures of France on the Assembly’s bureau : to implement it, on 7 September 1789, Sieyès requested the appointment of a special committee charged with drawing up a plan for the division of France. The report presented by Thouret to the Assembly on 29 September 1789 had been prepared by this special committee (Ozouf-Marignier, 1988). It consisted in dividing it, according to a geometrical scheme, into 81 departments (of 324 square leagues), themselves divided into 9 districts (of 36 square leagues) each comprising 9 cantons (of 9 square leagues). The project envisaged the establishment of 720 basic units, the creation of which was artificial. The geometrical division of France was then seen as the best way to fight against the provincial desires likely to break the unity of the country in the long run. While the Assembly accepts the principle of a rational division of the territory for supra-municipal constituencies (cantons and departments), it refuses the idea of ratifying the creation of large municipalities, preferring instead the installation of a municipality in the 44,000 basic units, inherited directly from the Ancien Régime. On 12 November 1789, the Assembly announced the creation of « a municipality in each town, village, parish, community of communes ».
Among the communes created by the revolutionaries were the communes of the Ancien Régime (those that had benefited from privileges enshrined in a charter) and the de facto communities (which came from religious parishes). The communal crumbling is linked to the old idea inherited from the Revolution according to which the only territory that is not dangerous is the communal territory. As France was at that time a rural country composed of few big cities, the commune was assimilated to the family, and this is precisely what made it possible to accept the idea of representation at the level of the commune. But any intermediate representation between the national level and the communal level is considered potentially dangerous in the sense that it can harm the Republic (Mémy, 1999) "}.
Some time after the creation of the communes, the constellation of the territory in small units was already denounced, to be followed by projects of revision. In 1793, Condorcet proposed the formation of large communes. This project was included in the constitution of year III with the canton municipalities, which were themselves suppressed by the law of 28 Pluviôse year VIII. From this date on, one of the characteristics of French administrative history was a series of projects - always unsuccessful - to overhaul the communes. Let us mention two projects : the reform of year III on canton municipalities and the Marcellin law of 1971 (two projects analysed in Demaye, 2000).
The Year III reform: the cantonal municipalities
Following Condorcet’s project of 15 February 1793 to divide France into large municipalities, Boissy d’Anglas denounced the dangers represented by the existence of 44,000 municipalities with « a germ of anarchy and death ». The establishment of a municipality in each canton and the suppression of districts was a reaction against Jacobinism which had dominated the communes and districts, even if this explanation was not among the reasons put forward during the Assembly debates of 19 Messidor, Year III. The arguments put forward are the saving of personnel, the search for competence of these personnel and the saving of financial means achieved, as well as the improvement of relations with the State administrations.
Thus, the Constitution of 5 fructidor year III gives the canton legal personality while leaving the communes to subsist. The Constitution distinguishes three categories of municipalities : the first category includes municipalities with less than 5,000 inhabitants (the municipalities have a municipal agent and a deputy; the meeting of the municipal agents of each municipality forms the canton municipality); the second category includes municipalities with 5,000 to 100,000 inhabitants (cities have a municipal administration for themselves); the third category is made up of municipalities with more than 100,000 inhabitants (Paris, Bordeaux, Lyon, Marseille).
But the functioning of canton municipalities, established in a troubled period of history, was a failure. They were abolished by the Constitution of 22 Frimaire, An VIII.
The failure of Marcellin’s law on the merging of municipalities
During the 1960s, when the urbanization of the territory was very rapid, projects to modernize the administrative map emerged. The Fouchet preliminary project of 5 December 1967 proposed the establishment, at departmental level, of an intermunicipal cooperation plan based on sectors of cooperation, on which freely constituted intermunicipal groupings were to be based. The reform procedure was intended to be negotiated, with the dissemination of the project to associations of local elected officials. These associations have generally accepted the government project, but opposition elected representatives are hostile to it. The prefect was in charge of drawing up the map of cooperation sectors. Despite the open nature of the reform procedure, the Fouchet project was driven by authoritarian ambition. Indeed, in the event of disagreement between the prefect’s proposals and the opinions expressed by the municipal councils and the general council, the plan had to be decided by decree in the Council of State. But in the end, however, the project - which was tabled on 15 May 1968 on the desk of the National Assembly - suffered the after-effects of the events of May 1968.
However, some time after this postponement of the Fouchet project, the Marcellin law of 16 July 1971 intended to combat the consequences of the rural exodus and the urban explosion by means of mergers of communes. The law provided for the establishment, by a commission of elected representatives, of a plan of mergers of communes at the departmental level. However, the commission was limited to submitting proposals to the prefect, who alone had the power to decide on the departmental plan. The prefect was present throughout the procedure: not only did he approve the plan, but he also had the power to pronounce the mergers. The plan had to include proposals for mergers between communes belonging to the same conurbation and between rural communes, as well as proposals for groupings of communities (urban communities, districts and SIVOM). This authoritarian law did not achieve more convincing results than its predecessors. The essential factors in its failure are the capacity for resistance on the part of elected officials and the inertia of the administration. The elected representatives were hostile to the reform : attached to the communal framework, they expressed their opposition.
The number of communes rose from 37,708 in 1968 to 36394 in 1978 : Marcellin’s law did not have the expected results. Subsequently, between 1975 and 1992, for 44 communes which were suppressed on the occasion of simple mergers or mergers with associated communes, 208 communes were created following splits… Isn’t the high number of communes a place of memory of French history?
De Kervasdoué Jean, Fabius Laurent, Mayodier Myriem, Doublet Francis, « La loi et le changement social : un diagnostic. La loi du 16 juillet 1971 sur les fusions et regroupements de communes », Revue française de sociologie, 17, 1976, pp. 423-450.
Demaye Patricia, Le renouveau du droit de l’intercommunalité en France. Un enjeu de la réforme territoriale ?, Thèse pour le doctorat de droit public, Université de Picardie, 2000, 677 p.
Mémy Yves, « Territoire et représentation politique », Esprit, mars-avril 1999.
Ozouf-Marignier Marie-Vic, La formation des départements, la représentation du territoire à la fin du 18ème siècle, Edition de l’école des Hautes études en sciences sociales, 1988, 363 p.