199/2003 Coll. CONSTITUTIONAL Court on behalf of the Czech Republic's Constitutional Court ruled on 11 June 2003 in plenary on the proposal of deputies of the Parliament of the Czech Republic for the annulment of § 7 of the Act no. 2/1991 Coll., On collective bargaining, as follows: The provisions of § 7 of the Act No. . 2/1991 Coll., on collective bargaining, is on 31 March 2004 be deleted. Justification I. The Constitutional Court received on 8 November 2002 from a group of 52 deputies of the Parliament of the Czech Republic for the annulment of § 7 of the Act no. 2/1991 Coll., On collective bargaining. The petitioner introduction recapitulates the content of the contested statutory provision that allows the Ministry of Labour and Social Affairs (hereinafter also referred to as the "Ministry") set in the legislation that higher level collective agreement is binding on employers who are not members of the employers' organization, which concluded the agreement . It recalls that the legislation differentiates collective agreement concluded between the relevant trade union and the employer (ie. Business) and the collective agreement is concluded for a larger number of employers between the relevant union body and an organization or organizations of employers (ie. Higher level collective agreements), referring to § 20 of the Labour Code and the law on collective bargaining. In terms of their content, then points out that such contracts are part of normative character, in relation to the demands of the employees of the employment relationship, and partly the nature of the bond, ie. Sets out the mutual obligations of the parties of the contract. In terms of assessing the general nature of collective agreements ranks the petitioner to private contracts for which it is typical that the parties to the contract governing the mutual relations voluntarily, based on the free expression of will. Legislation that would contract with private contractors restricted free will, then regarded as standing in conflict with Art. 1 of the Constitution of the Czech Republic (hereinafter also referred to as "the Constitution"), which provides that the Czech Republic is a democratic constitutional state. Among the attributes of the rule of law, then ranks the petitioner and the freedom to private law. Contrary steps outlined consequence of Art. 1 of the Constitution for the regulation of freedom of contractual relationships, the petitioner's opinion, the provisions of § 7 of the Collective Bargaining Act allows the Ministry to determine law (decree) that higher level collective agreement is binding on the employer, who are not members of the employers' organization, which concluded the agreement. In his opinion, it is hereby disrupted an ancient legal principle, which is part of European legal culture, and that the contract may only modify the relations between the parties when the State arrogates to itself the right to extend the effectiveness of the entire contents of the higher level collective agreement in its sole discretion, to other entities before that concluded it, and who therefore did not show willingness to adjust their mutual relations in this way. The petitioner in this regard reflects the practice of the Department that although employers who are not members of employer associations in writing asks for an opinion on the extension of the binding contract, but the extension itself accesses regardless of their attitude manifested. The content of the obligations arising for employers of higher level collective agreements petitioner states that this particular setting wage conditions, extension of the annual leave and the determination of other, generally superior, the labor rights of employees, these obligations are determined simply by a regulatory act (decree), and yet enforceable in court proceedings (§ 20 par. 3, § 207 of the Labor Code). This approach, based provisions of § 7 of the Collective Bargaining Act, then, in his opinion, constitutes contradiction with Art. 2. 4 of the Constitution and Art. 2. 2 and 3 and Art. 4, paragraph. 1 of the Charter of Fundamental Rights and Freedoms ( "Charter"), which put the constitutional boundaries for the possibility of lawful imprisonment, as well as with Art. 11 paragraph. 1 and 4 of the Charter in relation to the restriction of property rights posed by the extension of the binding effect of higher level collective agreements. The petitioner further points out that the concept of overlapping binding effect of higher level collective agreements can have adverse consequences for employees, which according to § 4 para. 2 point. c) of Law no. 2/1991 Coll. the collective agreement (company) is invalid, guarantees if employees wage demands to a greater extent than the specified range a higher level collective agreement as the maximum allowable, in excess of the maximum allowable range. For additional deficit contested statutory regulation petitioner considers the fact that an employer who is extending the binding contract, has virtually no opportunity to defend against such a procedure. The Ministry is in the extension of the binding collective agreements makes no decision that would apply to individual employers (ie. The decision with the character of an administrative decision), against which there would be an appeal. From the perspective of the protection of the rights of potential remedies we recall that the issue of the decree can not be regarded as a measure within the meaning of the Constitutional Court and the process before issuing the decree on the extension of the binding effect of higher level collective agreement takes place, the process of legislative and therefore the position of the addressees had established duties not subject to possible legal review. Notes that the inclusion of a particular employer on the list annexed to the decree according to § 7 of the Collective Bargaining Act, is by its nature a de facto decision to eligible interfere with the rights of the employer, which has lacked procedural protection under Art. 6, paragraph. 1 of the Convention for the Protection of Human Rights Fundamental Freedoms ("the Convention"). From an empirical point of view, the petitioner states that in 2001 alone was Decree no. 238/2001 Coll., No. 300/2001 Coll., No. 303/2001 Coll. and no. 417/2001 Coll. enhanced binding of seven higher level collective agreements for a total of 3860 employers - legal entities and individuals. In 2002, as the date of submission of the draft became Decree no. 81/2002 Coll., No. 223/2002 Coll., No. 300/2002 Coll., No. 301/2002 Coll., No. 302/2002 Coll. no. 409/2002 Coll. and no. 410/2002 Coll. a total of 2,282 employers. Some higher level collective agreements are so, according to the petitioner, under the sub-statutory norms binding on employers a greater number than the number of those for whom they were closed. This, in his opinion, employers minority imposes its will on the majority in a given sector or industry, which is considered to be inconsistent with the rights arising from Art. 26 of the Charter. In this context, points out that although according to § 7 para. 2 of the Act on collective bargaining can extend the binding effect of higher level collective agreements only to employers with similar activities and similar economic and social conditions, standard for the ministry does not guarantee compliance with this rule, because - at such a large number of affected employers - are not and can not be examined individual circumstances of each employer. For the present, many of them may find themselves in a difficult economic situation, which is particularly true for small businesses. In terms of certainty and clarity of the text of the contested legal provision petitioner considers the term "employers with similar activities and similar economic and social conditions, who are based in the territory of the Republic" as doubtful due to the fulfillment of characters contained therein. The petitioner argues with the purpose of the institute extension of collective agreements. Recalls that lie in an attempt to create the same or comparable terms in a competitive environment as well as the same respectively. comparable social conditions of employees. According to the petitioner's conviction but extend the binding higher level collective agreement, as enshrined in § 7 of the Act no. 2/1991 Coll., But not only does not compete, but rather limits it by laying down conditions for business and for employers who are not members of the relevant employer association - regardless of their specific possibilities. If the State makes employers who are not members of the relevant employers' association, the legal regime, which is the result of collective bargaining, then, according to the petitioner, these employer discriminates while indirectly forcing them to come into the Union of Employers, which is considered to be inconsistent with the right to freedom of association pursuant to Art. 27 paragraph. 1 of the Charter. With regard to all these arguments the appellant proposes that the Constitutional Court § 7 of the Act on Collective Bargaining canceled due to conflict with Art. 1 and Art. 2 paragraph. 4 of the Constitution, Art. 2. 3, Art. 4, paragraph. 1, Art . 11 paragraph. 1 and 4, Art. 26 paragraph. 1 and Art. 27 paragraph. 1 of the Charter, and that the judgment day of its publication in the Official Gazette. II. According to § 42 par. 3 and § 69 of Act no. 182/1993 Coll., On the Constitutional Court, as amended, the Constitutional Court sent the petition to the Chamber of Deputies of the Czech Parliament. In the introduction to its statement of 17 December 2002, the President of the Parliament of the Czech Republic PhDr. Lubomir Zaoralek stated that ILO Convention no. 98 on the Right to Organise and Collective Bargaining (1948) establishes the right to state support for voluntary collective bargaining between employers and employers' organizations on the one hand and employee organizations on the other, so that employment conditions were modified as follows. Similarly, the European Social Charter (1961) obliges parties to support, where necessary and appropriate, mechanisms for voluntary negotiation between employers or employers' organizations and employees to determine the conditions of employment in collective agreements. ILO Recommendation no. 91 on collective agreements (1951) expects to expand the applicability of the collective agreements to other employers and employees, even though their own collective agreement not signed, and should be subject to certain conditions, namely that the collective agreement itself has already committed representative the number of employers and employees, a request for extension is filed by one or more organizations of workers and employers participating as parties to the contract, and that employers and employees, which should be binding collective agreement is extended, will be invited to express their views. On the basis of this outline, is a party to that international treaty prefer that the adjustment of minimum wages and other working conditions to ensure collective agreements (the normative provisions), and take precedence over established statutory or regulations of, and the role they have a collective agreement to perform, especially as a source of law, it established an important rule, namely the extension of the collective bargaining agreement (ie. extension). This rule, according to the statement from the Chamber of Deputies, can ensure a uniform standard labor and wage conditions for groups of companies with similar activities, economic and social conditions, usually to an economic sector or field and that rule also prevents speculative behavior of some employers, who could be excluded binding collective agreement for his company that would become members of employers' organizations. For these reasons, then the party drawing conclusions, according to which the extension of the higher level collective agreement itself is not in conflict with international conventions by which the Czech Republic is bound. According to the Chairman of the Chamber of Deputies law, which expands the binding collective agreement differs from other labor legislation in that its content is not proper regulation of labor relations, but really just an extension of the binding nature has given legislation (source of law) to other labor organizations and thus the relationship. This regulation, therefore, according to him, does not accept the provisions of the collective agreement as its own provisions; collective agreement with respect to the third parties does not alter the ministerial regulation issued independently on the basis of law and within its limits, but remains a collective agreement. Furthermore, in expressing critical notes that, unlike international conventions, as well as the Recommendation no. 91 of the International Labour Organisation rules contained in § 7 of the Collective Bargaining Act is very terse and does not meet the said recommendation. Subscriber management believes that it is undisputed that the law itself should set certain conditions for the expansion rather than leaving the matter of state administration for its absolutely free and boundless discretion, that there should be provision for the government to assess the need to extend, to establish criteria for the assessment of needs further criteria for assessing the representativeness of the collective agreement, as well as the criteria for determining the public interest to extend its obligation to eliminate and economic involvement of some employers. To that end should be statutory regulation, according to the Chairman of the Chamber of Deputies, to ensure that they made the necessary findings, especially also ascertaining the opinions of those to be affected by the enlargement, and would treatment should include at least the most basic procedural rules, particularly to discuss the legislation, which is intended to be binding collective agreement extended beyond the usual legislative discussion. Despite these concerns be considered an interested party contested provision, § 7 of the Collective Bargaining Act as compliant with international conventions (and Convention no. 98 on the Right to Organise and Collective Bargaining, European Social Charter) as well as Art. 2 of the Constitution and Art. 2 and Art. 4 of the Charter. In conclusion, opinion then states that it is up to the Constitutional Court, in connection with the petition review the constitutionality of this provision and issue an appropriate decision. According to § 42 par. 3 and § 69 of Act no. 182/1993 Coll., As amended, the Constitutional Court sent the petition to the Senate of the Parliament of the Czech Republic. In its statement of 19 December 2002, its chairman Assoc. JUDr. Petr Pithart the reservation petitioners regarding the very purpose of extending the binding higher level collective agreements states that the main objective of this institute is to create a comparable competitive environment among employers operating in similar fields of activity, which means creating comparable conditions in their competition. In this regard, in his opinion, clearly outweighs public character of higher level collective agreements, which arises from the fact that the collective agreement (both corporate as well as a higher level) in terms of its normative content is the source of law and applies generally to all employee respective employers, including those who are not members of the union which concluded the collective agreement. For those expressing doubts about the arguments of the petitioner that the unconstitutionality of this institute derives from what is proper for private relations and private contracts. In the statement it is pointed out that in case of extension of the binding higher level collective agreements in terms of the institute, which was implemented in the Czech Republic - following certain developments around since the early 20th century - already in the period of. During the first republic, when the collective bargaining agreement in today's conception marked as collective labor contracts. These contracts were first implemented on the basis of the principle of subsidiarity (ie. Wages and other agreed conditions applied to employees of the Parties, unless individual contracts of employment agreed otherwise), then become binding (if they were individually negotiated worse conditions than those in bulk Contract work, to apply the more favorable treatment contained in the collective labor agreement). For some time, the legislation enabled, as also noted in the statement that - under specified conditions - collective contract labor made mandatory in certain areas, even if the employer or the employee, or both, were not members of organizations that have negotiated collective agreement working. Such an example. Under the government regulation no. 102/1935 Coll. a. and n., which are adjusted on a temporary basis in textile manufacturing working conditions of the workers, or by government decree no. 141/1937 Coll. a. and n., the binding nature of collective labor contracts. From the perspective of comparative law-chairman of the Senate states that a similar institute is also applied in other European countries. E.g. In the Federal Republic of Germany Collective Bargaining Act contains in § 5 of treatment, allowing under specified conditions, to extend the binding collective agreements also to employees and employers who are not members of any of the organizations that the collective agreement concluded. The procedure, which can to some extent, in the opinion of the party, compared to institute extending the binding effect of collective agreements is also applied in European Union law. Art. 139 of the Amsterdam Treaty stipulates that "if they want the social partners, can their dialogue at Community level may lead to contractual relations, including conclusion of agreements. Agreements concluded at Community level shall be implemented either in accordance with the practices and procedures that are inherent to the social partners and Member States, or in areas covered by Art. 137, at the joint request of the signatories, a Council decision on a proposal from the Commission. " In recent years he has been in several cases, Council Directive of the European Communities, which contains a framework agreement with the regulation of the relevant area of ​​labor law, which was concluded by the social partners, and European Trade Union Confederation (ETUC), Confederation of Industry of the European Community (UNICE) and the European Centre for Public Enterprise (CEEP). Based on this directive adopted, the Member States have in their jurisdiction to adopt legislation or other measures that are consistent with the Directive, ie. To ensure the validity and effectiveness of the Framework Agreement on its territory. In essence, this way, the opinion contained in a statement by the Chairman of the Senate, to all employers in the Member States extended binding framework agreements concluded between the social partners. As an example of party lists Directive 96/34 EC on the framework agreement on parental leave concluded by UNICE, CEEP and ETUC Directive 97/81 EC concerning the Framework Agreement on part-time work, also concluded by UNICE, CEEP and ETUC, possibly Directive 1999/70 EC concerning the framework agreement with UNICE, CEEP and ETUC on employment contracts for a specified period. The reasons that lead to this process are expressed in detail in the preambles of the relevant directives, stating inter alia that such action is in the European Union in certain cases considered suitable and desirable. In this context, the observations that one of the reasons mentioned in the preamble is also the fact that the Council did not decide (ie. There was no consensus) for the draft Directive on labor relations, put forward with respect to competition and invited the social partners to conclude relevant agreements "with the aim of enhancing the competitiveness of enterprises ...". That party concludes conclusion that within the European Union in the field of labor relations also accentuated the aspect relating to equitable conditions of competition. President of the Senate highlights the fact that the content of these framework agreements between the social partners working at EU level will also commit all our employers, respectively. in some cases already committed, as such. Directive 96/34 EC on the framework agreement on parental leave concluded by UNICE, CEEP and ETUC, in the framework of harmonization of our legislation with EU law reflected in the Labour Code already in its amendment by Act no. 155/2000 Coll. Regarding the petitioner's concerns regarding the inadequacy of legal provisions expanding higher level collective agreements, including the cited arguments, it can, according to the Chairman of the Senate, in principle, agree with, as against the adoption of any legislation can not be appealed in administrative proceedings or administrative justice. In this respect, as we stated, it would seem expedient to the legislation more closely define its own mechanism for expanding higher level collective agreements, including the definition of the relevant criteria for assessing whether in a specific case fulfilled the conditions for the extension. However, it is questionable whether the very fact that the statutory framework seems too short, it can be seen as unconstitutional, as the petitioner concludes. Even such legal rights is possible, according to the beliefs of the party assert a constitutional manner (procedure prior to legislating an extension of the binding effect of higher level collective agreement so that they are completely filled with the current legal requirements of the expansion). Further legislation would make it possible, according to the Chairman of the Senate, to consider either within the currently forthcoming re-codification of labor legislation (forthcoming new labor code and amendments to related laws), or even earlier in "routinely" carried out changes in labor legislation. Starting from the possibility that the provisions of § 49 para. 1 of Act no. 182/1993 Coll., And since the application of § 7 of the Collective Bargaining Act directly affects the Ministry of Labour and Social Affairs, the Constitutional Court turned to the ministry with a request for comments on the předmětnému proposal. In its statement of 23 December 2002, the Ministry for the extension of the binding effect of higher level collective agreements states that it is an institution that has become part of modern legal systems of democratic European countries, and its use is widespread in various forms in many countries, eg. In Austria Belgium, France and Germany (a detailed overview is contained in the annex to this statement). The purpose of the institute expansion the binding nature of collective agreements is, according to the Ministry, efforts to prevent unjustified competitive advantage for those employers who resist collective bargaining or while collectively negotiate, but do not want to provide their employees benefits that are at similar employers customary and reasonable, thus creating more favorable labor costs and better market position at the expense of their employees. It is extending the binding higher level collective agreements recognized as state measures to promote collective bargaining in accordance with ILO Convention no. 98 on the Right to Organise and Collective Bargaining (no. 470/1990 Sb.). The petitioner alleged contravention under the statutory provisions of the Article. 2. 4 of the Constitution and Art. 2. 3 and Art. 4, paragraph. 1 of the Charter, the Ministry states that the obligations under the Charter obliges the state through its organs, the expression "under the law" it must be understood that "obligations may be imposed by law or another standard than is expressed in the law, but only in the event that this was the standard prescription empowered with legal force, at least the law." Also, "determining the limits of storage duties can be", according to the Ministry, "a set of legal regulations in force at least the law." Under a law that determines these limits, according to him, should be regarded as the law on collective bargaining, which in § 7 para. 1 empowers the extension of the binding effect of higher level collective agreement, that is to impose obligations regulation (decree); in § 7 para. 2 states to impose limits, permits extension only employers who have similar activities and similar economic and social conditions. The state does not progress in expanding the binding effect of higher level collective agreements, according to the Ministry of beliefs, arbitrarily, if such extension must meet statutory requirements. The statement also notes, also with reference to the resolution of the Constitutional Court. zn. IV. US 587/01, that § 7 of the Collective Bargaining Act is fragmented, which is why the ministry during the past period on the basis of dialogue with social partners in efforts to achieve the wording of the Act the procedure agreed at the Council of Economic and Social Agreement. When applying the terms "similar activity" for extending the binding effect of higher level collective agreements are currently based on data from the Administrative Business Register of the Ministry of Finance, which is in businesses put their activities according to the Industry Classification of activities led by the Czech static Authority, which is based on Data employers themselves. Another criterion for evaluating individual entities by the Ministry is the number of employees, which is reviewed by three independent sources (data of the Parties of the collective agreements of higher degree, Administrative Register of economic entities of the Ministry of Finance and the Register of Czech Social Security Administration), and the organizations with the number of employees less than 20 binding higher level collective agreement does not extend. In practice, according to the Ministry, the process of extending the binding higher level collective agreements initiated by at least one of the parties submit a duly substantiated proposal. If you do not submit a proposal, both parties together, must be accompanied by the statement the other side. In case of disagreement of the other Party with the proposal is that disagreement is submitted for consideration by the Advisory Body of the Minister of Labour and Social Affairs - Commission for extending the binding effect of higher level collective agreements to other employers (hereinafter "Commission"). The Commission is composed of three employer representatives and three union representatives, who are appointed by agreement on a proposal supreme bodies of employers' organizations and trade unions. Chaired by the deputy minister, who, however, when dealing vote. Although the current practice in the Commission always has been an agreement between the parties, unless it had reached, the decision belongs to the Minister. The ministry also considers whether the higher level collective agreements contain provisions that are in conflict with the law; if it finds such contradictions, leads the parties to the negotiations on their remedial action. The employer, which was the extension of the binding collective agreement proposed Ministry calls for an opinion, which is assessed by the Commission. Informing them at the same time, if it does not receive that opinion within a specified time, it is deemed consent to the proposed extension liability. This mechanism is the Ministry considered some protection for employers, who for competitive reasons, may be reluctant to inform about the extra benefits employees, or about their economic plans. Unless a particular employer demonstrated the proper service request opinions binding on him wide. The fulfillment of the law on collective bargaining conditions required for each employer to whom it is extending the binding higher level collective agreement, the Commission shall submit separately and in this regard a recommendation to the Minister. In the conclusion of his statement, the Ministry states that the draft decree on the extension of the binding collective agreements going through the normal legislative process, ie. By discussing with all the place for comments and later in the bodies of the Government Legislative Council, respectively. the Government Legislative Council, in accordance with the Government's Legislative Rules. III. According to § 68 para. 2 of Act no. 182/1993 Coll., The Constitutional Court's decision in proceedings to annul statutes and other legal regulations, evaluates the content of these regulations in terms of their compliance with the constitutional order or the law, if it is a different legal prescription, and determines whether they were passed and issued within the bounds of constitutionally provided jurisdiction and in a constitutionally prescribed manner. If the Constitutional Court when reviewing the norm, assesses the competencies of the legislative authority and the constitutionality of the regulatory process, based on § 66 para. 2 of the Constitutional Court, according to which a petition in proceedings to annul statutes and other legal regulations is inadmissible if a constitutional act, or an international treaty to which they are designed by the reviewed regulations are inconsistent, have lost prior to delivery to the Constitutional Court. It follows that with legal regulations issued before the Constitution of the Czech Republic Act no. 1/1993 Coll., The Constitutional Court is authorized to review only their consistency with the existing constitutional order, but not the constitutionality of the process of their creation and observance of norm. (See Judgment. Nos. Pl. ÚS 9/99, published in the ECR. Well, Vol. 16, pp. 13-14.) The interpretation of § 68 para. 2 of Act no. 182/1993 Coll., In full range strikes and to the present case, the Act no. 2/1991 Coll., the former Federal Assembly of the CSFR adopted on 4 December 1990, came into force on 1 February 1991, ie. before the Constitution of the Czech Republic, while the contested provision § 7 of the Act, any of his novels (ie. the law no. 519/1991 Coll., no. 118/1995 Coll., no. 155/1995 Coll., no. 220/2000 Coll. and no. 151/2002 Coll .) was not affected. IV. Diction of the contested provision of § 7 of the Act no. 2/1991 Coll. It is as follows: "§ 7 (1) The Ministry of Labour and Social Affairs of the Republic may establish legislation that higher level collective agreement is binding on employers who are not members of the employers' organization, which concluded the agreement. (2) To extend the binding effect of collective agreements more degree under the previous paragraph is possible only to employers with similar activities and similar economic and social conditions, who are based in the territory of the Republic and is not binding on them a higher level collective agreement. " V. The legal institution of collective bargaining agreements in the Czech legal system rooted in particular the provisions of § 20-22, § 30, § 32, § 35, § 60a, § 73, § 74, § 83a, § 85, § 88, § 92, § 95, § 96, § 99a, § 102, § 105, § 111, § 119, § 120, § 124-126, § 128, § 129, § 131, § 140, § 143 and § 200 of the Labor Code and Law No. . 2/1991 Coll., on collective bargaining, as amended. Collective agreements are the result of collective bargaining while the social partners. The purpose of the regulation of collective bargaining in a European democratic context, and within its framework and collective agreements is to ensure social peace, the formation mechanism of continuous social communication and democratic procedural resolving potential conflicts between employers and employees. The system of collective bargaining while mirroring the development of democracy in Europe in the late 19th and first half of the 20th century, reflects the search mechanism of peaceful, non-violent solutions relevant tensions threaten internal peace. Feasibility functioning of this mechanism is due to the social acceptance of the outcome of negotiations on the part of the state (and under certain circumstances, Czech law contained eg. in § 4 of the Collective Bargaining Act), ie. the quality of the sources of law assigning the essential content of collective agreements, of which then flow requirements applicable legal proceedings. The mechanism of collective bargaining while also finds application in areas other than labor relations. Example is analogous provisions of § 17 para. 2 of Law no. 48/1997 Coll., On Public Health Insurance, as amended, pursuant to which the system of substantive performance in providing health care to insured is determined by the framework agreement, which is the result of conciliation between representatives Unions of health insurance companies and representatives of the relevant group of contractual healthcare facilities represented by their interest groups, with each framework agreement shall be submitted to the Ministry of Health to assess their compliance with the law and the public interest, then it will issue a decree. In a free society, in which there is no employee nor the employer's obligation to design instead of the right of association (art. 27 of the Charter), is the institution of collective bargaining, resulting in collective agreements, regularly linked with the extension of their normative scope beyond the scope of the bond. The mechanism of this extension may be by definition contained in the collective agreement itself without such an extension would require the adoption of further legislative act (an example is legislation in the UK), or this mechanism foresees the issuing of a special legislative act extension of the scope of the founding. The conceptual standard in this regard is based on the assumption according to which the concept of collective agreements within the meaning of the legal act, committing only Party not allow to achieve the basic purpose of collective bargaining. If the purpose of collective bargaining to be a mechanism of social communication and democratic procedural resolving potential conflicts that threaten internal peace, then it is connected with the requirement of legitimacy (representativeness). Considered as such eg. German law (§ 12 para. 1 of the tariff agreement) limit of 50% of employers in a given field. In other words, the Minister of Labour and Social Affairs of the Federal Republic of Germany may declare certain collective bargaining agreement (Tarifvertrag) universally binding only if they participated in when to its conclusion within the participating employer associations at least 50% of the employers of the field. V / a petitioner's objections, a group of MPs, government deficits constitutionality of § 7 of the Collective Bargaining Act can be divided into four groups. The first consists of objections concerning the restriction of freedom of contract to the higher-level collective agreements not participating employers, the other the lack of judicial protection of the employer, and the third objection of uncertainty under statutory provisions and finally a fourth restrictions on freedom of association. V / b According to the settled opinion of the Constitutional Court (see judgments file. Nos. Pl. US 24/99, Pl. ÚS 5/01, Pl. US 39/01 - published in the ECR. Well, Vol. 18, p. 135 et seq., Vol. 24, pp. 79 et seq. and Vol. 28), an essential part of the democratic rule of law is the protection of freedom of contract, which is a derivative of the constitutional protection of property rights under Art. 11 paragraph. 1 of the Charter (the fundamental component It is jus disponendi). The very nature and purpose of collective bargaining linked institute their extension, ie. The possibility of extending the normative of the bond impact of collective agreements from the perspective of constitutional law therefore establishes a collision between the restriction of property rights under Art. 11 of the Charter and the public good in the sense of Art. 6 of the European Social Charter, Publication Nos. 14/2000 Coll. ms, in conjunction with Art. 1 of the Constitution and Art. 27 of the Charter. Extension of the scope of the collective agreement represents a higher level, then its general economic nature, price controls, and adjusting wages and working conditions for employees (terms of positive definition of price regulation under Act no. 526/1990 Coll., On Prices, as amended, while the narrower ). Admissibility of price regulation, the Constitutional Court defined in relation to lawmakers in prior case law, a constitutional framework. The safeguards of the admissibility dealt with in the context of acceptability determining the value of a point in the health insurance, the acceptability of rent regulation, and finally the acceptability of production quotas for agricultural and food products. In the judgment in the case file. Nos. Pl. US 24/99 in relation to the setting point value in health insurance, said: "An essential part of the democratic rule of law is the protection of freedom of contract, which is a derivative of the constitutional protection of property rights under Art. 11 paragraph. 1 of the Charter (whose main component is ius disponendi ). Price regulation is therefore a measure unique and acceptable only in very limited circumstances. Although the fundamental right contained in Art. 26 paragraph. 1 of the Charter may be, within the meaning of Article. 41 paragraph. 1 of the Charter claimed only within the limits of the implementing law for the legislature, respectively . for the legislator, applies to this case threshold set by Art. 4 par. 4, according to which, when applying the provisions on the limits of fundamental rights and freedoms must be preserved nature and meaning. The state (public) regulation, and proceeding from taking into account important factors (in the area above the premiums collected, the amount of costs in health care, etc.), must, when determining the price to take into account the possibility of making a profit. The lack of this maxim in regulating prices may become disabling certain areas of business activity and the creation of a state monopoly, ie, . concerned the nature and meaning of the basic rights arising from Art. 26 of the Charter. "In the judgment in the case file. Nos. Pl. US 3/2000 - published in the ECR. well, Vol. 18, pp. 287 et seq., The Constitutional Court has repeatedly addressed the issue of price regulation, this time in connection with evaluating the constitutionality of legislation rents. Based account in particular of Art. 1 paragraph. 2 of Protocol no. 1 of the Convention, which gives states the right to pass such laws as they deem necessary to control the use of property in accordance with the general interest, and the case law of the European Court of Human Rights. According to such laws especially necessary and usual in the areas of housing, which in modern societies becomes a central issue of social and economic policies, and to that end, the legislation must have broad discretion to decide (yet) ("margin of appreciation"), and both in determining whether there is a public interest justifying the application of regulative (control) measures, as well as to the choice of detailed rules for implementing such measures. As the European Court of Human Rights stressed in the case of James et al., State interference must respect the principle of fair (fair) balance ("fair balance") between the demands of the general interest of society and the requirement to protect the fundamental rights of the individual. There must be a reasonable (justified) proportionality relationship between the means employed and the aims pursued. The Constitutional Court in this case thus accepted possible price regulation of rents, as long as the application of the principle of proportionality (comprehensively to all components of the principle of proportionality see Constitutional Court judgments file. Nos. Pl. ÚS 4/94, Pl. US 15/96, Pl. US 16/98 - published in Coll. nu, Vol. 2, p. 57 et seq., Vol. 6, p. 213 ff. and Vol. 13, p. 177 et seq.). However, the Constitutional Court acknowledged the presence of the first of the components, ie. The appropriateness of the means used to attain the objectives stated breach of the principle of necessity, ie. Subsidiarity composition used in relation to other possible means, from the perspective of the limited fundamental rights (in this case property ): "To have those found obligations of owners of apartment buildings could meet and make it actually came into play and the individual's right to proper housing within the meaning of Art. 11 of the International Covenant on Economic, Social and Cultural Rights (the" Covenant "), could be For example chosen the path that was already the First Republic legislation, which in § 9 para. 4 of the Act no. 32/1934 Coll., as amended, allowed rent increase because of cost reimbursement made occasional or exceptional necessary repairs and restoration of the house. " Based on the above reasoning, the Constitutional Court finding of infringement of Article. 4, paragraph. 3 and 4 of the Charter, in conjunction with Art. 11 paragraph. 1 of the Charter. In general terms, the Constitutional Court judgment the formulated further criterion for evaluating the constitutionality of price regulation, "Price regulation does not have to exceed the bounds of constitutionality, must not evidently lower price so that it would respect all the proven and necessarily incurred expenses, eliminate the possibility at least of their return, because in that case it would actually imply denial of the purpose and function of ownership. " On the sidelines of the constitutional standards of quotas of food and agricultural production Product Constitutional Court judgments file. Nos. Pl. US 39/01 and Pl. US 5/01 emphasized that neither the constitutional order nor international agreements on human rights and fundamental freedoms forbid the legislature limiting the amount of production, distribution and consumption of goods. Therefore, the legislature may (within the bounds of constitutionally guaranteed basic principles, human rights and freedoms) in its discretion introduce price or quantitative regulation of production in certain sectors of the economy, define or influence the type and number of entities in it, or restrict contractual freedom when production on the market or the purchase of raw materials and production equipment. The Constitutional Court found as the value of the constitutional importance of the free market free of all regulation. He pointed to the limits of freedom of establishment within the European Union, where the market economy is directly declared a constitutional principle in founding treaty. He stressed that the right to achieve a certain price on the market is not a fundamental right. He recalled that the production quota system is a form of control the use of property which has been introduced due to the public interest. He referred also to the case law of the European Court of Justice. In its judgment on the action Metallurgiki Halyps v Commission (258/81) emphasized that the Community steel production restrictions in the public interest, even if they can threaten the company's viability, not in violation of the right to property. He pointed out that the European Court of Human Rights never evaluated the general legal action by the Member States of the Council of Europe, which regulated the volume of production with regard to their compatibility with the European standard of the fundamental right to property. He pointed out that the current case law of the constitutional and supreme courts of the Member States of the European Union and other democratic legal states suggest that the restriction of production for reasons of stabilizing market prices at a certain level, they are fairly imposed on all existing producers, it would be considered incompatible with the national standard ownership. This finding does not preclude their political criticism, which is strong. The Constitutional Court, however, found no reason to interpret Art. 11 of the Charter otherwise. The introduction of production quotas in cases considered qualified to be justified because it serves the public interest, which called for a guarantee of a minimum price in an environment where state subsidies contribute to an increase in production which demand would not cause. State interventions in agriculture are motivated by its social, economic and ecological characteristics. The Constitutional Court has acknowledged that the system of production quotas for agricultural products exist in the European Union, and denied that the national standard of human rights require a pure market economy, free from state interference. He expressed the same time reluctant to demand that it subject to strict scrutiny in terms of its necessity and true need legislation, which the state intervenes in the economy. He stressed that the choice of economic policy is relevant Czech Parliament as a political body which bears political responsibility to the voters for recognizing problems in the economy and for the choice of tools to solve them. In the case of the constitutionality of § 7 of the Collective Bargaining Act, the Constitutional Court concluded the merits of the findings from the existing file. Nos. Pl. US 5/01 and Pl. US 39/01 depart and test the acceptability of the priorities of the public interest arising from the protection of values ​​protected by Art. 6 of the European Social Charter, published under no. 14/2000 Coll. ms, in conjunction with Art. 1 of the Constitution and Art. 27 of the Charter, in conflict with the right to property under Art. 11 of the Charter. In the event of a collision, it is necessary to establish the conditions for the fulfillment of which the priority one basic right or freedom, and conditions under which other, respectively. a public good (the principle of proportionality, see settled case law of the Constitutional Court, especially judgments file. Nos. Pl. ÚS 4/94, Pl. US 15/96, Pl. US 16/98). Essential in this context is the maxim that a fundamental right or freedom may be restricted only in the interest of another fundamental right or freedom, or public good. Balancing the conflicting fundamental rights and freedoms or public goods is based on the following criteria: the first is the criterion of suitability, ie. The assessment of whether the institution restricting a certain fundamental right makes it possible to achieve the objective pursued (protection of another fundamental right or public good). The second criterion for balancing the fundamental rights and freedoms is the criterion of necessity, consisting of comparing legislative means which restricts a fundamental right, respectively. freedom with other measures which permit achieving the same aim, but not affecting the fundamental rights and freedoms, respectively. touching them at lower intensity. The third criterion is comparing the gravity of both conflicting fundamental rights or public goods. These fundamental rights, respectively. public goods are prima facie equal. Comparing the severity of conflicting fundamental rights, respectively. public goods (after fulfilling the conditions of suitability and necessity) consists in considering empirical, systemic, contextual and value arguments. Empirical argument can be seen actual magnitude of the phenomenon, which is associated with the protection of certain fundamental rights. Systemic argument means weighing the purpose and the inclusion of the fundamental right or freedom in the system of fundamental rights and freedoms. Contextual argument can be understood as other negative effects of limiting a fundamental right as a result of giving priority to another. The value argument is a positive reflection of conflicting fundamental rights with respect to the accepted hierarchy of values. In the structure of this principle, while the Constitutional Court in its case law does not apply only postulates of suitability, necessity and proportionality in the narrow sense, but also the postulate of minimizing interference with fundamental rights (see judgment Pl. ÚS 4/94): "It can therefore be concluded that the case conclusion on the merits priority to one of two conflicting fundamental rights is a necessary condition for the final decision is also using all possibilities to minimize interference in one of them. This conclusion can be derived from Art. 4 par. 4, namely in the sense that fundamental rights and freedoms must be preserved not only in the application of the provisions on the limits of fundamental rights and freedoms, but also by analogy in the case of restrictions as a result of being in conflict. " In the present matter institute collective bargaining and the extension of the scope effect linked to collective agreements meet the conditions posed for his acceptance of the safeguards of suitability and necessity. It is an effective means of achieving the pursued purposes (social harmony) and meets the safeguards analysis of possible normative means in relation to the intended purpose and their subsidiarity in terms of limiting constitutionally protected values ​​- a fundamental right or public good (eg. In terms of comparisons extension of the scope of the collective agreement and state regimentation outside the system of collective bargaining, an example of which is to determine the minimum wage pursuant to § 111 paragraph. 4 of the Labour Code). The actual weighing both conflicting constitutionally protected values, and this aspect of the system, value, contextual and empirical, leads to the conclusion akceptujícímu Institute extension of the scope of collective agreements, but only subject to certain safeguards. If the starting point of constitutional acceptability Institute extension of the scope of collective agreements of a higher degree of European democratic legal experience and the resulting standards, compared with European Union law, as well as finding a procedural mechanism ensuring a balance between legal protection of freedom and guaranteeing the internal peace of the human community, be with the associated purposes in the context of deciding achieved only at the cost of limiting property rights. Priority public good over the right to property but to be subject to the condition of legitimacy (representativeness) collective bargaining system, hence the relevance of the market share of the contractors in the field. Furthermore, the requirement to minimize interference with the fundamental rights and freedoms, which is part of the principle of proportionality implies exclusivity and safeguards measures such as the maximum for the legislator linked the extension of the scope of the collective agreement to accept only in exceptionally justified cases of public interest. From the perspective thus set forth the terms of the proportionality principle to be considered § 7 of the Collective Bargaining Act as standing in conflict with Art. 11 and Art. 26 of the Charter, in conjunction with Art. 4 par. 4, when a breach of the requirement of defining the limits of representativeness of the collective bargaining system in a comparison of conflicting fundamental rights and public goods, and also in terms of minimizing restrictions on the fundamental rights of a breach of the requirement of uniqueness of such measures. V / c provisions of § 7 of the Collective Bargaining Act empowers the Ministry Decree to extend the binding effect of higher level collective agreements and for employers who are not members of the respective employers' associations, if they operate a similar activity, where have similar economic and social conditions as contractors of the contract and if the seat on the territory of the Republic. The Ministry of the extension of the scope of the collective agreement decree is carried out throughout the period of validity of the Collective Bargaining Act so that in her diction rule that at precisely identified higher level collective agreement is hereby extended its binding and employers listed in the Annex, Annex contains a precise list of employers their trade name, address and identification number (see eg. Reg. no. 410/2002 Sb.). To meet the statutory authorization contained in § 7 of the Collective Bargaining Act regulations, eg. Generally binding legal regulations, in practice, therefore, related to the modification occurs precisely individualized entities, which is typical for the application of law. The existing practice that deviates from one of the fundamental material concept of a statute (law), which is a generality. Recall that the general requirement of the law is an important principle of the rule of law and the rule of law as well. Arguments in favor of the general law, respectively. legislation, how to do it, the Constitutional Court has already pointed out in its judgment in the case file. Nos. Pl. US 12/02 (to be published in the ECR. Well, Vol. 29), are as follows: separation of powers, equality and the right to independent judge. The first argument against the laws, legislation regulating singular cases is the principle of separation of powers, the separation of the legislative, executive and judicial power in a democratic legal state: "Recruitment laws concerning individual cases with the greatest obstacles to the area of ​​application of the law. The right to a lawful judge and the independence of the legal regulation exclude individual lawmaker in areas that are not protected by the principle of "nulla poena sine lege" (where there lex meaningful way can only be universal and written legal sentence). " (H. Schneider, Gesetzgebung 2. Auflage, Heidelberg 1991, p. 32). Art. I, Section 9 of the US Constitution in this regard: "It must not be given any law, the content of which would be a court judgment." Individual regulation contained in the legislation, deprives the addressees the possibility of judicial review of the fulfillment of the general conditions of normative treatment for a particular subject, which lacks transparent and acceptable justification in relation to the possibility of general regulation, must therefore be considered inconsistent with the principle of the rule of law (Art. 1 of the Constitution) which is immanent separation of powers and judicial protection of rights (Art. 81, Art. 90 of the Constitution). These derogatory grounds for judicial review of the constitutionality apply fully and to assess the constitutionality of § 7 of the Collective Bargaining Act. Being fully up to the legislature determined if the procedure extension of the scope of an administrative procedure with the possibility of judicial review (as that possibility suggested the Constitutional Court's resolution of 11. 7. 2002, file no. No.. IV. ÚS 587/01), or by a general normative defining the group of employers to which extension falls, with the possibility of judicial review of the fulfillment of subsumption conditions (eg. in a dispute over the application of the alleged claims arising from higher level collective agreements, employee, or judicial review of administrative decisions relating to eg. labor inspections Conditions). V / d, the Constitutional Court also in a number of its findings on the question under what conditions must be considered vagueness and unintelligibility legislation inconsistent with the principle of the rule of law, and therefore, under what conditions they become derogatory reasons. In its judgment. Nos. Pl. US 6/2000 (Coll. Well, Vol. 21, pp. 195 et seq.) In this context, he said: "Where it is established by Art. 1 Constitution of the Czech Republic democratic rule of law, this means - among other things - that the rule of law should correspond to the principle of predictability of the effects of legislation and its certainty and clarity. Only such a law for which we can clearly foresee its consequences, namely, it matches the concept of rule of law. " Terms of testing the constitutionality of a legal provision with regard to the requirement of certainty and clarity expressed then the court has in its judgment. Nos. Pl. US 9/95 (Coll. Well, Vol. 5, pp. 107 et seq.): "Uncertainty of any of the provisions of the legislation must be considered inconsistent with the requirement of legal certainty and consequently the rule of law (Art. 1 of the Constitution) only if the intensity of that uncertainty rules out the possibility of setting the normative content of that provision by the usual interpretive approaches. "These aspects must yet be applied in relation to the requirements of constitutionality, which puts the Constitutional Court to the legislature when determining Enabling statutory provisions. According to the legal opinion contained in its judgment. Nos. Pl. ÚS 45/2000 (Coll. well, Vol. 21, pp. 261 et seq.), the constitutional definition of derived norm creation by the executive rests on the following principles: "Other legislation" must be issued by an authorized entity, it can not interfere in matters reserved to the law (therefore can not determine the primary rights and obligations), and must indicate the clear intent of the legislature to regulate beyond the statutory standard (must be open space sphere, "another enactment '). In its judgment. Nos. Pl. ÚS 3/95 (Coll. Well, vol. 4, p. 91 et seq.), the Constitutional Court has set a condition of certainty of legal limits "to other legislation" in the empowering provisions: "Compliance closer unmarked conditions of a special regulation, which then ex post becomes constitutive features of the law protected object, giving the impression that the same could be vaguely formulated the legislature authorized the executive power in other areas of life." The provisions of § 7 of the Collective Bargaining Act designates State institution whose legislative powers establishes and defines the class possible extension of the scope of the collective agreement characteristics similar activities, similar economic and social conditions and headquartered in the Czech Republic. However very general, it can be assumed that those arrangements offer sufficient interpretive framework for setting conditions for extension in response to a specific higher level collective agreement with respect to the viewpoint analogous position of employers who are members of employers associations and those where it is not . From the perspective of the petitioners' objections concerning the uncertainty of § 7 of the Collective Bargaining Act, the Constitutional Court finds that the wording of the contested statutory provision falls not demand certainty, but the requirement of completeness that the legal authorization for the extension of the scope of higher level collective agreement follows from the principle of proportionality, and this deficiency editing representativeness of collective bargaining and exceptional measure restricting the fundamental right to property, and that it follows the maxim of guaranteeing the fundamental right to judicial protection. V / e petitioners' objections concerning restrictions on freedom of association, subject to the limitation of the negative aspects of freedom, ie. The right to freely decide not to join an association and the corresponding prohibition on anyone to coerce association. If it were possible that the opposition agree with the terms of the existing wording of § 7 of the Collective Bargaining Act, which in terms of the proportionality principle suffers from the absence of defining the limits of the representativeness of collective bargaining, enshrining the limits of criticism contrary Institute extension of the scope of higher level collective agreement with the right to associate freely has lost its relevance. V / f Taking all landed reasons, the Constitutional Court of § 7 of the Collective Bargaining Act to conflict with Art. 11 paragraph. 1, Art. 26 in conjunction with Art. 4 par. 4 and Art. 1, Art. 81 and Art. 90 of the Constitution abolished. Aware of the fact that the repeal of the statutory provision without adequate vacantia legis would result in a constitutionally objectionable incompleteness bill postponing the effectiveness of the derogative judgment pursuant to § 70 para. 1 of Act no. 182/1993 Coll., And on 31 March 2004 created The Constitutional Court democratic lawmakers time for constitutional for the implementation of Law no. 2/1991 Coll., on collective bargaining, as amended. Constitutional Court chairman: JUDr. Holeček vr