The Assumption Act of Matters and Fields of Responsibility by the Faroese Authorities

Act No. 79 of May 12^th 2005

on

The Assumption Act of Matters and Fields of Responsibility by the Faroese Authorities

This Act is based upon a Treaty between the Government of the Faroes and the Government of Denmark as equivalent Parties.

Section 1.

This Act encompasses all matters and fields of responsibility, confer, however, subsection (2).

(2) The act does not encompass the following matters and fields of responsibility:

1)      The Constitution of the Danish State.

2)      Citizenship of the Danish State.

3)      The Supreme Court of the Danish State.

4)      Foreign, security and defence policy.

5)      Monetary and currency policy.

Section 2.

The Faroese Authorities shall determine when matters and fields of responsibility governed by this Act shall be assumed; confer, however, subsections (2) and (3).

(2) The Faroese Authorities shall determine, after deliberations with the Danish Authorities, when the matters and fields of responsibility enumerated in the annexed List I shall be assumed.

(3) The matters and fields of responsibility listed under the same number in said List I referenced in subsection (2) above shall be assumed contemporaneously.

Section 3.

The Faroese Authorities have the legislative and executive powers in the matters and fields of responsibility that shall be assumed pursuant to Section 2.

(2) The Faroese Authorities shall assume the costs and the fixed assets directly contected with the respective matters and fields of responsibility that are assumed.

Section 4.

Courts established by the Faroese Authorities have jurisdiction over all matters and fields of responsibility in the Faroes.

Section 5.

Provisions set forth in Section 5, Section 6, Section 10, subsection (2), second sentence, and Section 13 in the Act on the Home Government of the Faroes, shall apply relevant to the matters and fields of responsibility governed by this Act.

(2) The provision in Section 2, fourth sentence in the Act on the Home Government of the Faroes shall apply relevant to the matters and fields of responsibility governed by Section 2, subsection (1) in this law.

Section 6.

The Faroese Authorities can, pursuant to agreement with the Danish Authorities, assume responsibility for Vágar International Airport and its operation.

Section 7.

This Act shall enter into force on 29 July 2005.

Section 8.

When a field of responsibility is assumed, the relevant Faroese Authority shall conclude any affairs within that field that has up to the date of assumption been handled by a Danish Authority, confer, however, subsection (2).

(2) The relevant Danish Authority may in special circumstances, and according to prior agreement with the respective Faroese Authority, determine that the Danish Authorities shall conclude certain affairs.

List I

1)      Prison and probation service.

2)      Property law.

3)      Aviation.

4)      National Church.

5)      Industrial intellectual property rights.

6)      Passports.

7)      Police and prosecutorial authority and related elements of the criminal justice system.

8)      Capacity, family and inheritance law.

9)      Criminal law.

10) Judicial administration, including the establishment of courts.

11) Legal practice.

12) Immigration and border control.

Chapter 1. General comments

The purpose of this proposed legislation is to formally establish by law that the Faroese Authorities may assume control over all matters and fields of responsibility, with the exception of specific named fields of responsibility.

This proposed legislation does not change the existing rights of the People of the Faroes and consequently the People of the Faroes preserve and protect their inalienable and continuing right of self-determination in accordance with international law.

Constitutionally, the proposed legislation is ratification by the Parliament of the Faroes of a Treaty between the Government of the Faroes and the Government of Denmark, while at the same time the proposal promulgates the contents of the Treaty as law in the Faroes. The authority of the Parliament of the Faroes to adopt this legislation springs from the authority granted by the People of the Faroes to provide for legislation. The Danish Government shall table a bill before the Danish Parliament with equivalent text that regards internal Danish affairs, which follow from the Treaty between the Faroese Government and the Danish Government. The comments to the Danish legislative proposal are, among other issues, related to internal Danish concerns. The comments to the Faroese proposed legislation, therefore, are not the same as those found in the Danish bill.

The new legislation will establish an arrangement for assuming [from Denmark] fields of responsibility that is both conversed and extended compared to the Home Government Act [of 1948]; i.e. that, while the Home Government Act specifically named the fields of responsibility that could be assumed or taken over, this new legislation names those few areas that cannot be taken over pursuant to this law; thus, it is noted that this legislation grants direct authority to assume all other fields of responsibility. Such is the essence of the term, "negative list"; that the fields of responsibility governed by this legislation encompasses all possible fields of responsibility, current or future, excepting those that are specifically enumerated in Section 1, subsection (2). By contrast, Lists A and B in the Home Government Act are "positive lists", wherein an effort is made to name all the fields of responsibility that the legislation should encompass. These positive lists have generated great difficulties because doubt and disagreements have arisen when the Faroese Authorities have expressed the desire to assume a field of responsibility that is not expressly stated in the lists. Nevertheless, it has occasionally been possible to take over certain fields of responsibility, such as the areas of national naming policy, environmental protection, and safety at sea. In other situations, differences arose between the Danish and Faroese Authorities relevant to the assumption of a specific field of responsibility stated in the Home Government Act, as when the Faroese Government desired to take over responsibility for the legislation on the liability of the mass media during the period 2001 to 2004; the consequence of this disagreement is that this field of responsibility to date has not been assumed by the Faroese Government.

This legislation has been developed through negotiations between the Government of the Faroes and the Government of Denmark, and the Parties are in agreement regarding the content of the legislation. Negotiations began during the previous administration, as announced in the Joint Declaration resulting from the meeting held in Tórshavn on 14 January 2002 in which it was determined to develop a new arrangement by which to assume fields of responsibility. The principle reason for a new arrangement to be promulgated by law is to avoid the differences of opinion stemming from the provisions in the Home Government Act related to assumption issues. Thus making it quite clear that the decision as to if and when to assume a field of responsibility shall be taken in the Faroes.^[[1]] At this initial stage it was intended that the proposed legislation should stipulate that all fields of responsibility, with the exception of some few that are directly related to issues of state sovereignty, should come under Faroese administrative control simply subsequent to Faroese Government decree, and it was also stipulated that several fields of responsibility would be assumed when the law would enter into force.

Upon the election of the new Faroese Government in 2004, the subject was reviewed and the new Faroese prime minister and the Danish prime minister held talks at a meeting in Copenhagen on 16 March 2004 to again return to negotiations on an arrangement that would be established by legislation and thereby promulgate the new principles for an assumption framework. There was agreement to continue with the fundamental principles adopted by the previous government that the new arrangement shall encompass all fields of responsibility with the exception of those few fields of responsibility specifically stipulated under Section 1, subsection (2). They are:

-         The Constitution of the Danish State.

-         Citizenship of the Danish State.

-         The Supreme Court of the Danish State.

-         Foreign, security and defence policy.

-         Monetary and currency policy.

The Parties are also in agreement that the proposed legislation in comparison to the initially intended law regarding the assumption of matters and fields of responsibility of the previous government is now revised relevant to the following main concepts:

-         The proposed legislation also encompasses all matters and fields of responsibility named in List A and B in the Home Government Act.

-         It will not be a direct consequence just of the entering into force of this law that any specific field of responsibility will be taken over.

The Parties are in agreement to promulgate regulations that safeguard the interests of government civil servants and other employees when matters and fields of responsibility are assumed.

The Faroese Authorities shall assume the costs and the fixed assets directly connected to the field of responsibility when taken over.

In contrast to the Home Government Act, the proposed legislation covers all three areas of governmental authority, the legislative power, the executive power, and the judicial power. Thereby, the Faroese governmental administration is rendered more whole and complete.

The proposed legislation is the result of negotiations between the Faroes and Denmark subject to the review and ratification of the parliaments of both countries and therefore has not been submitted for public comment and review in the Faroes.

Chapter 2. Consequences of the proposed legislation

The intent of this proposed legislation shall be carried into effect, when fields of responsibility shall be assumed, by the enactment of ordinary legislation by the Faroese Parliament. This means that when the prime minister has assented to and promulgated the ratified proposed legislation as the law of the land, there are no immediate and direct consequences, such as:

-         Fiscal consequences for the national treasury.

-         Administrative consequences vis-à-vis the national government or the municipalities.

-         Financial or administrative costs for the business sector.

-         Environmental consequences.

-         Consequences for special regions of the country.

-         Social consequences for certain social groups or associations.

There will only be issues of consequence when legislation is enacted pursuant to the enabling legislation of this proposed Act or if the Danish Authorities take action based on unilaterally espoused authority to demand that the Faroese Authorities assume a field of responsibility pursuant to Section 5, subsection (2). When a Faroese bill for the assumption of fields of responsibility is tabled before the Faroese Parliament, the respective consequences shall be specified.

Chapter 3. Specific comments

To Section 1, subsection (1):

Pursuant to the proposed wording in Section 1, subsection (1), there are no exceptions to what the legislation will cover, except the matters and fields of responsibility enumerated in Section 1, subsection (2).

To Section 1, subsection (2):

Regarding 1) the proposed legislation does not appertain to matters related to the royal family, the Danish flag, the Danish language, the Danish coat of arms, and matters related to the affairs of the Danish governmental ministers, how they are appointed or discharged and their legal responsibilities. Neither does it seek to legislate on the activities of the Danish Parliament nor on those of the representation of the Faroes to the Danish Parliament. Moreover, it does not legislate on the revenue and expenses of the Danish State and on how the laws enacted by the Danish Parliament that are deemed entered into force in the Faroes are promulgated.

Regarding 2) the proposed legislation does not attempt to legislate on matters of citizenship of the Danish State.

Regarding 3) the proposed legislation does not attempt to legislate on matters of the supreme court of the Danish State.

Regarding 4) the proposed legislation does not attempt to legislate on matters of foreign, security or defence policy.

Regarding 5) the proposed legislation does not attempt to legislate on matters related to monetary or currency policy.

To Section 2, subsection (1):

Pursuant to Section 2, subsection (1), it is solely by Faroese determination as to when an assumption shall occur. This is consistent with Section 46 of the Constitution of the Faroes whereby the Faroese decision to assume a field of responsibility shall be effected by law adopted by the Faroese Parliament. The Danish Authorities are thus not able to block such determinations by the Faroese Authorities. Concomitantly, the Danish Authorities, pursuant to Section 5, subsection (2) in the proposed legislation, have the equivalent right to decide that the Faroese Authorities assume a field of responsibility as governed by Section 2, subsection (1).

Section 2, subsection (1) governs all possible matters and fields of responsibility. The only exceptions are the areas enumerated in Section 1, subsection (2) and Section 2, subsection (2) in accordance with List I. In the event that new fields of responsibility should emerge that to date are unknown, for example because of social and technical development, these fields are governed by Section 2, subsection (1) as well, unless they are regarded as being related to current fields of responsibility.

The fields of responsibility addressed under Section 2, subsection (1) are in the main:

1. Fields of responsibility listed in List A of the Home Government Act as not assumed by the Faroese Authorities are:

-         Special care for the mentally impaired.

-         National insurance.

-         Health service matters.

-         Medical practice.

-         Midwifery.

-         Hospital service.

2. Annual accounting, company law (including legislation regarding corporations, etc.), financial matters (including supervision of financial institutions), responsibilities of the media, maritime law, geodetical survey administration, pilotage, measures and weights, hydrographic survey, contingency planning, copyrights, meteorological service and lighthouse authority.

To Section 2, subsection (2):

The difference between the fields of responsibility that can be assumed pursuant to Section 2, subsection (2) and those under Section 2, subsection (1) is not great. The fields of responsibility enumerated in subsection (2), however, require the Faroese Authorities to consult with the Danish Authorities before assumptions are effectuated. If there is no agreement subsequent to deliberations between the Faroese and the Danish Authorities regarding the assumption of fields of responsibility, the Faroese Authorities nevertheless have the authority to assume said fields of responsibility. In contrast to Section 2, subsection (1), the Danish Authorities do not have the unilateral right to demand that the Faroese Authorities assume responsibility for any of those fields of responsibility enumerated in Section 2, subsection (2).

Most fields of responsibility set forth in List I that are linked to Section 2, subsection (2) are of such a nature that necessary preparations should be accomplished before they are taken over.

Therefore, it is stipulated that deliberations should be held between the Faroese and the Danish Authorities before a decision is made to take over a field of responsibility. The purpose of this stipulation is to ensure that all issues that could arise after assumption of a field of responsibility are fully and completely addressed and that the Danish Authorities could release the field of responsibility in a well prepared and well managed manner. In the same manner, this assurance is extended to the Faroese Authorities. If, for example, the police and judiciary are taken over, it would be advisable that the Faroese and the Danish Authorities are in agreement on how to coordinate certain matters. In the same way, it would be advantageous for the Faroese and Danish Authorities to be in agreement on how to collaborate on specific technical matters.

Regarding the National Church, it should be noted that there are no intended actual changes in connection with the assumption of the field of responsibility listed in List B in the Home Government Act. However, Section 2, subsection (1) and not Section 2, subsection (2), governs religious communities deemed not covered by legislation regarding the National Church and holiday legislation.

To Section 2, subsection (3):

This Section states that the named fields of responsibility under the same number may not be subdivided. They must be taken over as a whole.

To Section 3, subsection (1):

This Section, in the main, is equivalent to Section 4, subsection (1) in the Home Government Act.

To Section 3, subsection (2):

Corresponds to the provision in the latter half of the second sentence in Section 2 in the Home Government Act, however, with the difference now that it is explicitly stated that the Faroese Authorities shall assume the fixed assets related to the fields of responsibility.

To Section 4:

A significant characteristic with the Faroese judicial system is that the Faroese judiciary shall have jurisdiction over all matters and fields of responsibility in the Faroes, regardless of whether or not they are under Faroese or Danish control. How the judiciary shall be administered is a matter to be decided by law adopted by the Faroese Parliament, assented to and promulgated by the prime minister. A Faroese judiciary system shall be consistent with the requirements set forth regarding the judiciary in accordance with the human rights obligations of the Faroes.

As in the present, rulings of the Faroese courts may be directly appealed to the Danish supreme court.

To Section 5, subsection (1):

This Section refers to provisions in the Home Government Act that regard the legislative limitations due to international treaties and that there shall not be any discrimination between people of Danish and Faroese nationality. Concomitantly, reference is made to Section 6 of the Home Government Act that the Danish Authorities shall administer all matters that are not assumed by the Faroese Authorities. Also the tribunal set forth in Section 6 in the Home Government Act is operational in case of dispute with regard to this proposed legislation. Furthermore, reference is also made to Section 13 that provisions in force shall continue until amended.

In Section 4, subsection (2) in the Home Government Act, it is stipulated that the legislation adopted by the Faroese Parliament and assented to and promulgated by the prime minister shall be named Parliament laws. In the proposed legislation, Section 5, subsection (1) does not reference Section 4, subsection (2) of the Home Government Act. This indicates that the Faroese Parliament hereafter shall itself determine whether to name the legislation it adopts laws or parliamentary laws.

To Section 5, subsection (2):

Pursuant to the proposed legislation, the Danish Authorities have the unilateral right to demand that the Faroese Authorities assume those fields of responsibility governed by Section 2, subsection (1). On the other hand, the Section indicates that the Danish Authorities may not demand that the fields of responsibility named in Section 2, subsection (2), under List I shall be taken over by the Faroese Authorities.

To Section 6:

In this Section, it is stipulated that the Faroese Authorities may, pursuant to an agreement with the Danish Authorities take over the Vágar International Airport and responsibility for its operation. The Joint Declaration dated 4 April 2005 sets forth the procedure for this takeover.

To Section 7:

The date for entry into force is the same as in the equivalent Danish proposed legislation regarding said legislation for assumption of matters and fields of responsibility.

To Section 8, subsection (1):

Naturally, when the Faroese Authorities take over a field of responsibility, they will also take over the direct administrative handling of matters within that field with the aim to secure equivalent administrative treatment within this field of responsibility. This will also mean that the obligations of the Faroese Administration will be compatible with those of the Faroese Parliament.

To Section 8, subsection (2):

Under certain conditions, it may occur that during a period of transition that an inordinate amount of effort shall be required to action a specific matter when the matter, which has almost come to conclusion, shall be transferred to the Faroese Authorities for final action. Therefore, it may be necessary that the relevant Danish Authority enter into an agreement with the equivalent Faroese Authority that the Danish Authority take the final decision in the specific case.