78/2001 Coll. CONSTITUTIONAL Court on behalf of the Czech Republic> The Constitutional Court decided on 10 January 2001 in plenary on the proposal of the District Court in Karvina to declare the unconstitutionality of § 18a paragraph. 1 point. c) § 18a paragraph. 2 point. b) after the semicolon and § 18a paragraph. 3 of Act no. 111/1994 Coll., on road transport, as amended by Act no. 304/1997 Coll., as follows: The petition is denied. REASONING I. On 29. 6. 2000, he received the Constitutional Court, the District Court in Karvina to repeal certain provisions of the Act no. 111/1994 Coll., On road transport, as amended by Act no. 304/1997 Coll., (Hereinafter "the Act on Road Transport "). Namely § 18a paragraph. 1 point. c) as follows: "to save the passenger who failed to show a valid ticket, pay a premium or require the passenger to personal information needed to recover margins," § 18a paragraph. 2 point. b) after the semicolon as follows: "unless it is proved valid ticket, pay a surcharge or demonstrate personal data necessary to recover the surcharge" and § 18a paragraph. 3 of the Act as follows: "The amount of the mark-down carrier's Conditions of Carriage. Amount premiums may not exceed the amount of CZK 1 000. " President of Chamber acting for C 27 District Court in Karvina Mgr. Milan Pelican in the draft said that the action filed in the District Court in Karvina, the applicant sought the extradition decision by the court of the defendant undertook to pay the sum in the amount of CZK 408 with accessories. In the complaint it was alleged that the defendant was in Prague on 26. 6. 1998 line no. 113 public transport operated by the plaintiff could not prove the transport controller valid ticket and filled the conditions for that to him the plaintiff demanded payment of an amount equal to 408 CZK . To prove the plaintiff submitted document labeled "Statement on the identification of the passenger and offense against MPR 'no. 2100500, from which it was found that the defendant was on 26. 6. 1998 13.50 hours on line no. 113 in the control section from Backwoods station to station Kačerov failed to show any travel document. It shall also contain an indication of the type of offense designated as "A", the defendant's personal information, information on penalties in the amount of CZK 400, an indication of the fare at 8 CZK and information about Controller's signature. Messages were processed on 28. 6. 1998. In the legal assessment of the facts described by the District Court in Karvina based mainly on Art. 1 of the Charter of Fundamental Rights and Freedoms (the "Charter"), § 1 para. 2, § 2, 3, 488, 760 and 772 of the Civil Code, § 1, § 2 para. 2, § 18a paragraph. 1 point. c), par. 2 point. b) and paragraph. 3 of the Road Traffic Act effective from 1 4th 1998. In its proposal, the court stated that, under Art. 1 of the Charter people are free and equal in dignity and rights. This equality of rights is a fundamental right that is inherent, inalienable, imprescriptible and irrevocable. The Charter does not expressly provide that it applies to legal persons, the court considers, however, that if in civil matters they are a legal entity, then Art. 1 of the Charter applies to the relationship established between the person and the natural person. Art. 1 of the Charter, then the court's opinion carries over to the norms of lesser legal force, up to § 2 para. 2 of the Civil Code, according to which the civil law relations participants have equal status. The contract of carriage of persons subject to the legal regime of the Civil Code. Under § 760 contract for the carriage of persons formed for passengers at a fixed fare used means of transport, the right to have his carrier transported to their destination properly and timely. Passengers entering the vehicle closes with the carrier implicit contract of carriage. Standard submitted to the repeal of the provisions of which, in this case, the court had to use, in the opinion of the District Court in Karvina its nature, the standard public, impermissibly favoring the plaintiff in the ratio of private and therefore is contrary to Art. 1 of the Charter (and § 2. 2 of the Civil Code). One-sided advantage on the carrier lies in the possibility of imposing sanctions and level in the form of so-called. Surcharge in the event that the passenger can not produce a valid ticket. The imposition of sanctions and, therefore, that the obligation was decided by a person authorized by the other party, then that should be formed within the relationship in the same position as a defendant. On the court's opinion does not change the reference to specific legislation (§ 772 BGB). The Court considers that in private law relationships Participants are entitled to penalties for any breach of a contractual obligation to negotiate among themselves, not unlike public relations, where sanctions are to protect the public interest. Such protection in that case, according to court is not justified and not in other cases not provided corporate entities doing business in the form of so-conceived legal standards. The legal standard, the abolition of the court suggested, is - in his opinion - its content clearly a public standard. There is no doubt that the state may authorize non-governmental character of the person (entity of private law), the exercise of public power within 'remaining public authority' to manage public affairs, if the circumstances are reasons. The court in this case concluded that this is a civil relationship institutes subject to the Civil Code, and one or the other party is entitled to assert their rights (damages, unjust enrichment, etc.). The possibility of imposing surcharges in accordance with those provisions of the Act are not in the opinion of the court the norm in private character. Furthermore, as the proposal states district court, based upon its consideration of the division of legal relations in the private and public relationships. A prerequisite for the issuance of standards affecting the ratio of private-public interest. Possible sanctions are imposed authorized persons within the procedural arrangements set for the relevant part of public responsibility so as to comply with appropriate protection of the unequal legal status of the entity. According to the court is to consider the extent to which it is a public interest, especially in a situation where the carrier is the current state of technology able to provide transport of persons so excluded anyone without a valid ticket. As the Court stated in the draft order dated 24. 11. 1999 sp. Ref. 27 C 186/99 in connection with the resolution of the Regional Court in Ostrava on 31. 3. 2000, file no. Ref. 13 Co 297/2000 proceedings pursuant to § 109 para. 1 point. b) Civil Procedure interrupted and in accordance with § 64 para. 4 of the Act no. 182/1993 Coll., on the Constitutional Court, submitted to the Constitutional Court for the annulment of various provisions of the Act, as it believes that they are in breach of Art. 1 The lists. II. After reviewing the formalities draft proposal was in accordance with § 69 par. 1 of Act no. 182/1993 Coll., As amended, be sent to the Chamber of Deputies and the Senate of the Parliament of the Czech Republic with a call for written submissions. Deputies said in its statement that the obligations which the Road Transport Act acknowledges in § 18a of one of the parties to the contract of carriage of passengers, are based on the Art. 4 paragraph. 1 of the Charter, which provides that duties may be imposed only by the law and within its limit and only if the fundamental human rights and freedoms. Charter nor the Constitution of the Czech Republic (the "Constitution") do not provide that the obligation imposed upon the fulfillment of these conditions could be applied in private acts of nature or, conversely, that the obligations stipulated by law could be applied only in the purely public relations. Legal relations arising in the different modes of transport have traditionally been governed by laws and subordinate legislation from the area of ​​private law and public law, and this fact is reflected in the contractual relationship for the transport of persons, animals or things. The nature of Transport show that one of the parties, which the carrier is always equipped with more privileges than the other. This is mainly due to the need to ensure the safety of operations and thus shipments, as well as the need to protect other public interests with transportation and transportation related. Against the conception of contracts concluded in a public bus line transport people such relationships purely private further supported by the fact that transport services are individual carriers provided under public service obligations to ensure basic transport services (§ 19, 19a, 19b of the Road Transport Act) or other transport Serviceability (§ 19c of the Road Traffic Act), which takes place on the basis of the order and grant the state or local government body. Contractual transport relationship is going on with the complicity of any public budget, which it will feature distinctive and obvious public element, and it is therefore understandable that in this situation, the legislation contains legal institutions that can protect farming hauliers from the commonplace way the non-payment of fares by passengers. The whole model public service obligations is considered by the Chamber of Deputies is compatible with Community law, particularly with the Council Regulation no. 1191/69 EEC on the actions of the Member States relating to liabilities arising from the concept of public services in rail, road and inland waterway transport, as amended by Council Regulation no. 1893/91 EEC. In his statement, the Chairman of Deputies further notes that § 18a of the Road Traffic Act, which is a proposal for the District Court in Karvina attacked, was already subject to further amendment by Act no. 150/2000 Coll., Which came into force on 1 7 . 2000. Law no. 111/1994 Coll., on road transport, and the amendment made to the law no. 38/1995 Coll., no. 304/1997 Coll. and no. 150/2000 Coll. They were approved by the required majority of deputies in the Chamber of Deputies, signed by the appropriate constitutional officials and duly promulgated in the Official Gazette. The Senate, in its response to the petition stated that the draft law amending and supplementing Law no. 111/1994 Coll., On road transport, as amended by Act no. 38/1995 Coll., Submitted to the Parliament of the Czech Republic Government and after its approval of Parliament was passed to the Senate. One of the main reasons for submitting this bill by the promoters and closer intention to regulate relations between the passenger and the carrier in the public line transport. Law, particularly for newly established the authority of persons authorized carriers towards passengers, including the authorization in specific cases of the passenger transport excluded ordered to pay the increased fare or require from him the personal data necessary to recover the increased tariff. The Senate discussed the bill at its 9th session on 13. 11. 1997, and approved its version passed in the Chamber of Deputies. Of the 65 present senators are in favor of 64, nobody was against. The objections of the petitioner regarding the contested provisions of the Act, the Senate stated that the transportation of citizens by public transport can be characterized as a service, within which is on the side of a transport company offered transportation for a specified route, and on the other hand is a citizen of this offer is accepted, and as implicit conduct consisting of accession to the appropriate vehicle. The fact that the passenger boards the means of public transport, implicitly treats the full range of services, including prices for transportation. But with silence on side of this agreement, and the commitment to carry a valid ticket and present it to check the authorized person of the carrier. All these details of the contract must be given in the carrier transport conditions, which are issued pursuant to and in accordance with the Road Transport Act or its implementing regulations. The possibility of introducing specific surcharge to the fare in the event of failure to pay the fare and the specification of the conditions of carriage can be considered a kind of penalty. For the operation of public transport is undoubtedly a public interest which is justified as specific arrangements between the carrier and the passenger. The Constitutional Court with a request for an opinion also addressed to the Ministry of Transport and Communications, under whose jurisdiction the legislative regulation of road transport fall. The Ministry, in its statement, among other things said that in general, the legal relationships arising from transporting passengers between participants of transport relations, ie. Between the passenger and the carrier, are regulated by the Civil Code, which contains only the basic provisions in their generality fall into all kinds transport. Given the particularities of the various modes of transport, however, to adjust the traffic rights are fundamental and other laws, which are laws in this case the law on road transport. From the perspective of the participants of transport relations are also crucial transportation orders, which as implementing regulations complement the general provisions of the Civil Code and the laws of the various modes of transport by further defining the relations of parties transportation contracts. Transportation schedules, therefore, within the legal mandate governing the basic conditions of carriage for individual transport modes. The penalty for failure to pay the fare, ie. Pay the surcharge to the fare, it is authorized by the Road Transport Act a person authorized by the carrier. In the opinion of the ministry, however, is not a compromise equal participants in a private law relationship, but here the state regulates only certain obligations of either party, not mandatory, without influenced whether the other party to the contract conditions thus formulated proceed. The Ministry argues that the petitioner did not specifically address what steps conceived legislation infringes the rights protected by the Charter, and vice versa apparently overlooked that the adopted legislation actually occupant protection. If it were based strictly on the principle of equality of relationships and unrestricted right of disposal, then the carrier could indefinitely decide the conditions under which passengers will be transported, and the transport conditions would have to be always content specific contract of carriage. That carrier announces its contractual transport conditions publication of the full text at places designated for contact with travelers and then publishes a substantial part of the transport regulations and the vehicle, the passenger is allowed to be with the amount of surcharge on familiar fare. Furthermore, as the ministry said in its opinion on the draft, against the conception of transport contracts concluded in a regular public transport as relations exclusively private talks that transport services are provided by individual carriers under the public service obligation to ensure basic transport services and other transport services. Contractual transport relationship is happening with the complicity of any public budget, which it will feature distinctive and distinct public element, and it is therefore understandable that in this situation, the legislation contains institutions that can protect farming hauliers from the commonplace, such as non-payment of fares passengers. The Ministry therefore considers that the public interest whose existence District Court in Karvina disputes is given in sufficient measure. III. The Constitutional Court had to deal primarily with the question of whether the petition filed by the District Court in Karvina is permissible in terms of § 66 of Act no. 182/1993 Coll., Or whether there are grounds for stopping proceedings under § 67 of Act no. 182/1993 Coll. Act no. 111/1994 Coll., On road transport, as amended by Act no. 38/1995 Coll. and Act no. 304/1997 Coll., for it was later amended by Act no. 150/2000 Coll. dated 16. 5. 2000, which came into effect on 1. 7. 2000. The Constitutional Court found that the contested provisions of the law proposal was amended mentioned law, even if only partially, in some words, specifically in § 18a paragraph. 1 the introductory words "or" replaced by the word "and" in § 18a paragraph. 1 point. c) the term "personal information needed to enforce allowance" is replaced by "proof of identity" in § 18a paragraph. 2, the following point a), which reads: "a) to comply with transport regulations, terms and conditions of carriage and tariff" and § 18a paragraph. 2 point. c) the words "demonstrate personal data necessary to enforce the payment of premiums" are replaced by "prove their identity" and the word "pay" the words "and the fare." It should be noted that this amendment essentially changed neither the content nor the meaning of the contested provisions. The District Court in Karvina Although the proposed repeal of those provisions of the Act, which was later amendment slightly altered, but the overall context and the reference to Article. 95 para. 2 of the Constitution clearly indicates that seeks a ruling on the constitutionality of those parts of the original law, which is to be in the matter actually used. Because of the unusual nature of the situation court initially chose a formulation which is quite adequate to the objective pursued, since it invoked the provisions of Section first head second part of Act no. 182/1993 Coll. a "procedure for repeal of laws and other legal regulations" that are not only applicable for the petition to annul the provisions of the Act in force. He later clarified the District Court in Karvina proposal so that in the event of inadmissibility cancel those contested provisions, which were taken over by the amendment, asking the Constitutional Court, on the basis of Article. 95 para. 2 of the Constitution in its decision considered whether the contested provisions of the Road Traffic Act are in terms of constitutionality applicable. Further notes that the ordinary courts will decide over the next few years, even under a legal status that was effective on the date of the commitment will therefore be based on the situation before the amendments to the Act. It follows that if the obligations arising will be judged by the ordinary courts under the law effective at the time, as stipulated in Law no. 111/1994 Coll., As amended by Act no. 304/1997 Coll. Since deems District Court in Karvina it necessary to turn to the Constitutional Court with a petition for assessing the constitutionality of the law applied. The proposal in the present case is not connected with a constitutional complaint, but it is a direct stimulus of the court under Article. 95 para. 2 of the Constitution. In this case, the § 66 para. 1 or § 67 para. 1 of Act no. 182/1993 Coll. apply, because it is not a procedure for the revocation of laws, but a direct application of Art. 95 para. 2 of the Constitution. A limine, one must start from the fact that: a) the Constitution is directly applicable, unless she otherwise b) further from the fact that under Art. 83 of the Constitution is the judicial body protecting the Constitution, the Constitutional Court and no other judicial body, hence no The Supreme Court (Art. 92 of the Constitution), and much less by lower general courts, c) finally, the fact that the scope of the Constitutional Court falls what he Constitution at any point of the text entrusted, not only powers under no. 87 of the Constitution but also pursuant to Art. 95 para. 2. From the Constitution itself, it is clear that the general court, including the Supreme Court must rule on the unconstitutionality of the law. Art. 95 para. 1 of the Constitution provides that a judge of the court is bound by the law to decide and assess the compliance of other legislation applying the law. If, however, concludes that a statute which should be in resolving the matter (that is, not only in force at the time, but at the time no longer valid but still applicable law) is contrary to constitutional law, is obliged to submit matter to the Constitutional Court (Art. 95 para. 2 of the Constitution). Of this provision, the Constitutional Court concluded its duty to decide on the petition. If the Constitutional Court refused to grant a general court in its decision on the constitutionality or unconstitutionality of the applicable statute aid would result in an unsolvable situation of an artificial legal vacuum, because the very things the district court adjudicated not by this court require to meet a claim for payment of amounts intended as a sanction for black ride, if the court is convinced that this sanction based on an unconstitutional provision of the Act. But if a general court itself decided, on the basis of his conviction on the unconstitutionality of the applied provisions, would have acted in conflict with the Constitution. The Constitution is based on Art. 83 and Art. 95 para. 1 and 2, expressing the relevance of such a concept review of constitutionality, which is concentrated in a single institution, namely the Constitutional Court. District Court in Karvina, therefore, had no choice but to comply with its constitutional obligations (Art. 95 para. 2 of the Constitution) and to submit the question of the constitutionality of the applicable provisions of the law to the Constitutional Court. If the Constitutional Court declined to consider the constitutionality of the contested provision, it would paradoxically blocked judicial decision-making right now and omissions of the Constitutional Court itself to fulfill its basic obligation under Art. 95 para. 2 of the Constitution. In this case, then could not party to the earlier proceedings successfully lodge a constitutional complaint if it claimed the unconstitutionality of the law applied, because a constitutional complaint can be connected only proposal to repeal the law valid. The Constitutional Court concluded that neither the interpretation of the Act no. 182/1993 Coll. You can not deny constitutionally imposed duty of ordinary courts to apply to the Constitutional Court if they have to apply the law, which deemed unconstitutional. If the Constitution as a norm of the highest legal force in Art. 95 para. 2 obliges the court to submit to the Constitutional Court in every case in which "concludes that a statute which should be applied in resolving a matter is inconsistent with the constitutional law," the the nature of that provision as well as the reason for such a proposal to the Constitutional Court, and thus the sense of mission, which the Constitutional Court to deal with. Article. 95 para. 2 of the Constitution contains an implied duty of the Constitutional Court to provide a general court in its decision on the constitutionality or unconstitutionality of the law, which is to be used, assistance, regardless of whether the law was later amended. The argument that the Constitution does not recognize the right of the Constitutional Court to submit a binding interpretation of the Constitution, is misleading. The Constitutional Court is not entitled to submit a binding interpretation of the Constitution in general, anytime, by anyone, but where it acts on the basis of their competence, not his work, after all, the content is nothing more than just a binding interpretation of the Constitution. Therefore, when dealing with the initiative of the General Court of the constitutionality of the law, deals with the interpretation of the Constitution. Because the amendment of the Act was slightly amended version of the contested provisions substantively and significantly different from the former, the Constitutional Court found the decision finding the place and taking into account the fact that similar problems with paying surcharge to the fare can also be found in other places and at a later time. IV. After reviewing the proposal, the Constitutional Court concluded that it could not grant the application for annulment of § 18a paragraph. 1 point. c) § 18a paragraph. 2 point. b) after the semicolon and § 18a paragraph. 3 of the Road Traffic Act, as the judgment in the petition asks District Court in Karvina, if there is a change in the provisions of the new law. The Constitutional Court therefore only consider whether the provisions of the law then in force which has the District Court in Karvina for addressing specific use cases, are in conflict with the Constitution (Art. 95 para. 2 of the Constitution) or not, and concluded that purposes of the legislation, which does not conflict with the Constitution. Above all, it must be noted that the petitioners' arguments seeking annulment of the contested provisions of the Road Traffic Act is based only on the provisions of Art. 1, paragraph. 1 of the Charter, under which people are free and equal in dignity and rights. The petitioner is in its reasoning to conclude that the legal intervention of the state in the relationships between carriers and passengers, there is an undue advantage to one contractor, in this case the carrier. The petitioner, in justification of the proposal tackles the definition of the difference between the relationship of private and public, and based on the analysis of these concepts leads to the conclusion that the relationship between the carrier and the passenger is a relationship purely private, to which the state may intervene only in case of public interest, whose existence, however, In this case the petitioner doubts. The contract of carriage of persons is governed by § 760 et seq. Civil Code. This is a general adjustment, which applies to all modes of transport. Common provisions to contracts of carriage set out in § 772 of the Civil Code allow for a more detailed treatment of passenger and freight transport was determined by special regulations, especially transport timetables and tariffs. Passenger transportation is provided by the carrier under a contract of carriage, which is near public transport means concluding negotiations usually implied. Given that the operation of public transport has understood the importance of passenger transport and legitimate interest, the state regulates certain issues of passenger transport law. This method of control allows the State Art. 4, paragraph. 1 of the Charter, under which duties can be imposed only by law and within its limit and only if the fundamental rights and freedoms. This constitutional modification impose petitioner in his reflections on the unconstitutionality of the contested provisions of the Road Traffic Act overlooked. However, that arrangement is general and applies to obligations of both legal entities and individuals, both in relations private and public. Czech law is indeed based on the dualism of public and private law, the distinction between the rights of two large areas based on the classic Roman law, can not be conceived dogmatically, but taking into account the modern tendencies in the development of law and also to the influence of European Community Law. There is currently no private and public law department of "Chinese walls". Leads to more frequent and closer interpenetration and mutual intensive combination of elements of private and public. A basic feature of private law is equality bodies, which corresponds to the principle of freedom of contract with a preference dispozitivnosti. Participants in civil relations are both natural persons and legal entities or state. Equality their position in particular that there is no relationship of subordination and superiority, and that none of the participants of this relationship can not, in principle, to unilaterally impose any other obligation. Equality of status of participants of civil relationships but can not by itself rule out the possibility of the state (or even duty) law to intervene in a private law relationship. Constitutional regulation of such state intervention in principle does not exclude, of course, assuming that it is, first, the interference is justified in the public interest and also proportionate intervention. In the case of the Road Traffic Act can not be taken out individual provisions of context because the Act as a whole, does not merely obligations of the passenger and authorized carrier, but the whole is designed so that the rights and obligations of both parties contractual relationship be maintained at a certain equilibrium (see eg. § 18 Act). The contract of carriage in public transport is concluded tacit practice based on the passenger's side in entering the respective vehicle. Special feature of this agreement is to as reimbursement rates for transportation, which can be a flat-rate advance (network ticket) or direct (pay the driver or the specified method of depreciation previously purchased ticket when boarding the vehicle). The fact that the passenger boards the vehicle, implicitly treats the full range of services. Silently approaches to other, generally known adverse terms of the agreement, namely to have a valid ticket and invited her to the police. However, if the passenger has not paid before the shipment is properly and timely fare, which is the price for services, silently agrees with the fact that he will be charged a penalty determination and enforcement of authorized personnel carrier. Use of public transport and remains fully available to the citizen as a passenger and his consideration of whether under such conditions specified in the vehicle enters a contract of carriage is closed. Sanctions pursuant to the Road Transport Act may a person authorized by the carrier to impose a passenger who does not produce a valid ticket is by nature contractual penalties for failure to pay the fare for the service rendered. Not to lose sight of the place that happen in this case, not only the law imposed a duty passenger, but on the other side of it by setting the upper limit of the contractual penalty protects against arbitrary carrier. Level of the surcharge to the fare is according to § 18a paragraph. 3zákona on road transport shall not exceed 1 000 CZK. The law also obliges carriers to determine the amount of margin in their conditions of carriage which the carrier is obliged to publish in places intended for contact with passengers, and also a substantial part of each vehicle. This ensures that passengers who choose to travel by public transport and then conclude with a carrier contract of carriage, is tentatively familiar with its terms. Boarding the vehicles the contract is that the passenger stepped on the conditions of the carrier, including the amount and method of dumping margins fare. The considerations petitioner, under which the carrier is unable to state of the art to provide transportation so as to exclude in advance to transport persons without a valid ticket, the Constitutional Court with regard to the opinion of the Ministry of Transport and Communications states that a system under which passengers are allowed to board means of transport all doors on the condition that they have a valid ticket, it is customary in the world and especially in large cities proven. Also in customary international sanctions in the event that a passenger with a valid ticket does not, whether they are called fine, surcharge or higher fare. Nowadays, when a large number of passengers has been totally unthinkable to go back to the times of the passengers, only one door or to sell tickets in the vehicle crew. In the current transport capacity of public transport, the introduction of such a system meant the extension of travel time, delays, passengers at bus stops and its consequences probably collapse of the entire public transport in big cities. Under the facts of the case the Constitutional Court came to the conclusion that the petitioner did not submit such arguments to justify the conclusion that § 18a paragraph. 1 point. c) Section 18a paragraph. 2 point. b) sentence after semicolon and § 18a paragraph. 3 of the Road Traffic Act is unconstitutional, and therefore rejected the proposal. Constitutional Court chairman: JUDr. Kessler vr Dissenting opinions in accordance with § 14 of Act no. 182/1993 Coll., On the Constitutional Court, took the decision to the full court judge JUDr. Vladimir Cermak, Mgr. Miloš Holeček, Mgr. Vladimir Jurka, Mgr. Vlastimil Sevcik, Mgr. Paul Varvařovský and lawyer. Eva Zarembová.