Management of municipal property and citizens’ control
The municipality is obliged to manage its property with due care. What happens if it breaches this duty and how can the residents of the municipality control compliance with this duty?
The care of a good steward
A municipality has specific legal obligations when dealing with its property. The management of municipal property must be as transparent, efficient and accessible to the public as possible. In addition to the procedural obligations (to publish the intention and decide on the legal action by the competent authority), the municipality is also obliged to manage its property with due care. This obligation implies that the municipality’s property must be used efficiently and economically in accordance with its interests and tasks arising from its statutory remit.
Responsibility of representatives
Councillors who have approved legal acts in breach of the duty to act with due care are liable for breach of the duty to act with due care. Breaches of the duty of care may be punishable by criminal proceedings. Furthermore, the representatives are liable to the municipality for the damage caused.
State control
If there is a breach of this obligation, state control comes into play. However, the State is limited in the scope of its control so as not to interfere with the municipality’s right to self-government. The State may therefore only assess compliance with procedural requirements, and, in terms of the efficiency and economy of the disposal of property, it may control and assess only whether the municipality has clearly exceeded the limits set by law. Thus, the state authority, for example, may not. may not assess that a breach of the law has occurred simply because a different (more appropriate) solution could have been chosen.
The regional authority or the auditor (if the municipality chooses to do so) is responsible for auditing the municipality’s management and the municipality is obliged to have its management reviewed regularly. The review may also be carried out on the basis of an initiative.
Control by citizens
Control cannot be sought in civil proceedings (action for invalidity brought by citizens), as it follows from the decision of the Supreme Court of 24 March 2010 (Case No. 28 Cdo 4365/2009), which clearly stated that “such control cannot be exercised through private actions in civil court. Other legal instruments are available for control, which can be initiated by the inhabitants of the municipality through their complaints.”
A citizen who has doubts about the municipality’s management in accordance with the due care of a good manager may request information and clarification either directly at a meeting of the council or by submitting a request for information under the Freedom of Information Act.
A citizen may also contact the regional authority with a complaint for a review of the management, or may file a criminal complaint against councillors who have made decisions in violation of this obligation. However, this should only be done in extreme and justified cases, so as to avoid bullying of councillors.
If you would like more information in this regard, please do not hesitate to contact us.
This article is for informational purposes only and does not constitute legal advice or guidance for any particular case.