199/2015 Sb.
FIND
The Constitutional Court
On behalf of the Republic of
The Constitutional Court ruled under SP. zn. PL. ÚS 21/14 on 30 November. June 2015
the plenary consisting of the President of the Court, Pavel Rychetského and judges Jaroslav
Fenyka, Jan Filip, Vlasta Formánkové, Vladimir Crust, Tomas
Too, Jan Musil, Vladimir Sládečka, Radovan Suchánka,
Catherine Šimáčkové, Vojtěch Šimíčka, Milady Tomková (judge
the Rapporteur), Jiří Zemánek Uhlir and David on the proposal of the President of
Republic for annulment of the Act No. 234/2014 Coll. on State service, or its
individual provisions, § 1, paragraph 1. 2, § 5 para. 2, § 11 (1) 3, §
14. 2, article 15, paragraph 2. 3, § 16, § 17 para. 3 the fourth sentence, § 21, art. 3,
section 22, § 31 para. 2, section 78 (a). (c)), § 85 para. 5, § 104 paragraph. 3, § 145
paragraph. 3, § 165, 172, 173, 178, § 184 para. 2 and § 189, with the participation of
The Chamber of deputies of the Czech Parliament and the Senate of the
The United States as parties to proceedings and of the Government of the United Kingdom as
intervention management
as follows:
I. the provisions of § 17 para. 3 sentences of the fourth Act No. 234/2014 Coll., on State
the service is cancelled on the date of publication of this finding in the statute book.
II. The remainder of the proposal is rejected.
Justification
(I).
The subject of the proceedings
1. On 7 December. from 1 November 2014, the Constitutional Court received a proposal from the President
Republic for annulment of the Act No. 234/2014 Coll. on State service,
Alternatively, for annulment of article 1 para. 2, § 5 para. 2, § 11 (1) 3, § 14
paragraph. 2, article 15, paragraph 2. 3, § 16, § 17 para. 3 the fourth sentence, § 21, art. 3, §
22, § 31 para. 2, section 78 (a). (c)), § 85 para. 5, § 104 paragraph. 3, § 145
paragraph. 3, § 165, 172, 173, 178, § 184 para. 2 and section 189 of the Act.
II.
The arguments of the applicant
II./a
Argumentation concerning the adoption of the contested act
2. the proposal to repeal the law on the civil service as a whole justifies
the appellant protiústavností procedure, which was adopted by the contested act.
As the rapporteur recapitulates, originally a group of MEPs presented
27 June 2002. December 2013 draft bill amending Act No. 218/2002
Coll., on the service of civil servants in administrative offices and on the remuneration of
These employees and other employees in administrative offices
(business law), (71/0). This Bill was then replaced in
the form of the so-called. a comprehensive amendment Bill with an entirely new
the civil service, the projednaným of deputies of the Czech Parliament
States for the first time on 16. July 2014 in the context of the second reading, and then,
What was on 27. August 2014 of the third reading returned to second reading, was
day 10. September 2014, the Chamber of Deputies approved in the third reading.
The Senate of the Parliament of the United Kingdom was the draft law approved on 1 May 2004.
October 2014. This led to the fact that the original amendment to the then valid
Service Act No. 218/2002 Coll., on the service of civil servants in the
administrative offices and on the remuneration of such employees and other
employees in the administrative offices (business law), as amended
infringements in the course of further legislative process in the Chamber of Deputies
the House replaced with a bill on State service, which at the same time
existing Service Act set aside.
3. The procedure described in the opinion of the appellant were in violation of fundamental
the principles of legislative activities set out how the Constitution of the United States
(hereinafter referred to as "the Constitution")-article. paragraph 41. 2, Act No. 90/1995 Coll., on
rules of procedure of the Chamber of Deputies, as amended, (hereinafter the
also "rules of procedure of the Chamber of Deputies"), specifically the provisions of section 63
paragraph. 1 point 5 (b). and the rights of members of the Confusion) to submit the draft law
with the right of members to submit amendment was withdrawn by the Government of the
constitutional law to submit a draft law on the civil service is of the opinion
It was taken out of consideration of the Bill in the Chamber of deputies in
the first reading. a comprehensive amendment lacks Executive
message. The purpose of the amendment is not in accordance with the claimant's original
the proposal in principle, alter or extend the principle, as it happened in the
the present case. In similar cases, the Constitutional Court has repeatedly
dealt with, and therefore the applicant only refers to the findings of the Constitutional Court
SP. zn. PL. ÚS 79/06 of 15 July. 2.2007 (N 30/44 SbNU 349; 37/2007
Coll.), finding SP. zn. PL. ÚS 56/05 of 27 June. 3.2008 (N 60/48 SbNU 873;
257/2008 Coll.), SP. zn. PL. ÚS 53/10 of 19 April 1996. 4.2011 (N 75/61 SbNU
137; 119/2010 Sb.).
4. the applicant also States that it is not essential that the rules of procedure of the
the House of the concept of "comprehensive amendment" has no knowledge, nor that of the
the original proposal of the amendment to the law was the law of the State
the service taken only about half of novelizačních points. For substantial
on the contrary, the applicant considers that the so-called. a comprehensive amendment to its
the subject and purpose of the original proposal did not change at all, but completely replacing
a new draft of the law. The applicant attacks this procedure even in the knowledge that
procedural aspects must be assessed in relation to the principles of
the material rule of law; to do this, then draws attention to other parts of
This proposal, and that the law will be applied in its entirety in the
Basically, up from 1. July 2015.
II./b
Argument relating to the alleged unconstitutionality of the provisions of
law
5. In the next section the appellant challenges the constitutionality of the proposal below
specified provisions of the contested act.
Modifying the employment relationship of the so-called. other employees in administrative
offices
6. The first group of objections refers to § 1 (1). 2, § 11 (1) 3, § 14 para.
2, article 15, paragraph 2. 3, § 16, § 78 (a). (c)), § 85 para. 5, § 172, 173, 178, §
184 para. 2, section 189 of the Act on the civil service. According to the appellant, it is common
and apparently even constitutionally acceptable legal technique
If the law, which regulates the business conditions of civil servants in the
business offices, refers to the institutes in other laws in this
the case mainly on the institutes in the Act No. 262/2006 SB., labour code,
as amended, in order to avoid cribbing these institutes
in relation to civil servants in the law on the civil service; This is the case
for example. in paragraph 98 to 100, 102-104, § 109 paragraph. 3, § 112 to 114, § 117
paragraph. 3, § 118-124, 131. Another thing, though, is the law of the State
the service modifies the things employees which are otherwise covered by the code
work; as to section 1 (1). 2, § 11 (1) 3, § 14 para. 2, article 15, paragraph 2. 3, §
16, § 78 (a). (c)), § 85 para. 5, § 172, 173, 178, § 184 para. 2, s. 189.
In this second case, according to the appellant about the indirect amendments
the labour code [cf. find SP. zn. PL. ÚS 2/97 of 2 June 1997 7.1997 (N
91/8 SbNU 325; 186/1997)] which does not conform to the basic principles of
the rule of law, which include not only the principles of predictability and
the clarity of the law, but also its internal control (cf. find
SP. zn. PL. ÚS 77/06), and from this point of view is considered by the applicant
inadmissible.
7. the above allegations the appellant the following the following arguments.
Pursuant to section 4 of the labour code, labour relations governed by the labour code,
and if you cannot use this law, is governed by the civil code, not
Thus the law on government service. According to § 1 (1). 2 of the law on the State
the service of this Act regulates the organizational Affairs of the staff who
they work in basic employment relationship, but from the series above
the contested provisions, except for the provisions concerning systemising,
It is clear that the overall management of labor relations. According to § 2
paragraph. 1 (b). (c) the civil service law) this law does not apply to
Deputy member of the Government, contrary to the provisions of § 173, however, is that
the position of a Deputy member of the Government. His status modified
that puts it outside the organizational arrangement of the Administrative Office, or
does not give him any decision-making competence, which, apart from the above
referred to the claimant's leads to the conclusion that this provision in the law on
the civil service does not belong. Deputy member of the Government is to be in employment,
his type of work therefore is to be referred to the labour code agreed in working
the Treaty, however, is his job description is defined directly in § 173 paragraph.
1 of the law on civil service, and in accordance with the mission set out in section 9
paragraph. 8 of the law on the civil service for the Deputy for management section; also
This fact, according to the applicant, in order to control the law leads to the
the proposal to repeal section 173 of the Act.
8. the constitutional objections to another individual by the contested provisions of the law
the civil service applicant formulates as follows:
The adjustment of disciplines of the civil service regulation of the Government
9. According to § 5 para. 2 of the law on government service Government Regulation
branches of the service. That provision is, in the opinion of the applicant in breach of
with the article. 78 of the Constitution, according to which the implementation of the law and within the limits of the
the Government is authorised to issue the regulation. The provisions do not provide for the limits within which the
the Government has to move, and could not be inferred or interpretation is probably the
the law. The law does not define the term "scope of service", as is apparent for example.
from section 24 or 30, it's about the concept in terms of the law. From the constitutional
point of view it is a violation of the Division of power between the legislative and the Executive and
violation to the principle of legal certainty and predictability of the law. In this
context the applicant refers to a number of the findings of the Constitutional Court, for example.
the findings SP. zn. PL. ÚS 3/95 of 11 December. 10.1995 (N 59/4 SbNU 91;
265/1995 Coll.), SP. zn. PL. ÚS 17/95 of 25 October. 10.1995 (N 67/4 SbNU
157; 271/1995 Coll.), SP. zn. PL. ÚS 35/95 of 10 October 1995. 7.1996 (N 64/5
SbNU 487; 206/1996 Coll.), SP. zn. PL. ÚS 45/2000 of 14 February 2000. 2.2001 (N
30/21 SbNU 261; 96/2001 Coll.), SP. zn. PL. ÚS 40/02 of 11 March. 6.2003
(N 88/30 SbNU 327; 199/2003 Coll.). Notes on section 5 of the repealed
Service Act, in which, in the opinion of the party making the limits established
have been, since the scopes of services associated with the activities arising out of the
special legislation.
Modifying the barriers in the service of the Government Ordinance
10. The provisions of § 104 paragraph. 2 of the law on the civil service provides that
cases when barriers in the service belongs to the employees salary.
The provisions of § 104 paragraph. 3 of the Act provides that the Government may
by regulation establish further obstacles in the service (i.e., beyond the scope of the Act), for
that pertain to the State employees salary. Referred to the provisions of paragraph 3
is clearly contrary to article. 78 of the Constitution.
The determination of the grade of the staff authority for activities not included in the
the catalog administrative activities
11. The provisions of § 145 paragraph. 3 the law on the civil service provides that for
new business instead of State employee, on which it is to be exercised
activities not listed in the catalog administrative activities, IE. in the regulation of the Government
referred to in paragraph 2, the grade provides business with the approval of authority
The Ministry of labour and Social Affairs and the Ministry of finance. Referred to
the provision is contrary to the fundamental principles of the rule of law, establishing
creates legal uncertainty and, outside the normative modification contained in the regulation
the Government, space for discretion when making decisions.
The wording of the requirement of respect for democratic principles of constitutional
order for admission to employment
12. the provisions of section 22 of the Act on civil servants provides that the service
the ratio can only accept the person for which it can be assumed that it will be in the
service to adhere to the democratic principles of the constitutional order of the Czech Republic
and properly perform the service. The fact that that provision is based on the
subjective, inconclusive and unrestricted presumption is contrary to the
the basic principles of the rule of law. In this context, refers to section 30
paragraph. 1 the second sentence of the law, which, however, was to act on the
Government service inappropriately, but originally was reworded as follows: "to the
services cannot appoint a natural person under the first sentence, which cannot be
proven to be assumed to be in respect of the Democratic
the principles of the constitutional order of the Czech Republic and to perform properly. "
The approval of some official authorities systemising
13. the provisions of section 17 para. 3 of the law on civil service in the sentences first and
the second provides that a proposal be submitted to the Government Interior Minister systemising and
systemize the following calendar year, approved by the Government. In a sentence
the fourth then provides that in the case of the Office of the Council on radio systemize and
television, the Czech Telecommunications Office, energy
regulatory authority, the Office for protection of competition, the Bureau of
protection of personal data, the Czech Statistical Office or the State Office
for nuclear safety, the Government cannot, without the consent of the person who is in
their head, reduce the number of official places referred to in paragraph 1 (b). a) and
(b)), i.e., the number of business locations for State employees, and the number of business
jobs introduced, and the volume of funds for salaries of civil servants
compared to systemize for the previous calendar year.
14. in section 17(2). 3 sentence of the fourth law on State service is included from
a total of thirteen called other central bodies of State administration,
as defined in section 2 (2). 1 Act No. 2/1969 Coll., on establishment of ministries and
other central bodies of State administration of the Czech Republic, as amended by
amended, the enumeration of the seven Central Government authorities, which
the provisions in question puts the Government on a par with, if not above the Government,
Nevertheless, pursuant to article 5(2). 67 para. the Constitution is the supreme body of authority
the Executive Government, and not to another body, as it would otherwise, of section 17(2). 3
the fourth sentence of the law on Government Service statement.
The determination of other cases in which a person can be taken into service
the ratio of fixed-term
15. in section 21 para. 1 and 2 of the law on government service are dealt with cases in which the
a civil servant carrying out his function for an indefinite period and for a period of
a specific. Paragraph 3 provides that the additional cases in which can be given
the special nature of the service to accept a person into the service for a period of
a specific, determined by the Government Regulation. The concept of a "special nature of the service" is
vague, the provisions of paragraph 3, it is also in breach of article. 78 of the Constitution.
II./c
For more reservations to the contested Law
16. In the last part of the proposal your rapporteur presents a non-exhaustive enumeration
the shortcomings of the law on government service, that, although not in his opinion
"most likely in themselves constitutionally reviewable", but
they must be presented to possible examination of the other effects of the procedure
the approval of the law namítaného above (part of II./a). This includes the following
arguments:
-According to § 31 para. 2 of the law on the civil service if the State does
an employee of the service on the day that is specified in the decision on admission to the
leaving without him in that prevented a serious obstacle, or
He informs the institution of this obstacle within 7 days, service
authority of the decision to adopt the service. This provision
is internally contradictory or incomprehensible and in marginal cases
exploitable. The question is whether constitutionally Conformal interpretation can be overcome,
that instead of the word "or" should be used in the provision, the word "and".
-Under section 165 of the decision may be the first act in the proceedings, with
the exception of disciplinary liability or termination of service. Referred to
the provisions of the verbal phrase "may be" without specifying the conditions
room for legal uncertainty, as it allows the previously unspecified
cases, exclude the code of administration procedures laid down in particular in the
the discovery of a basis for decisions and evaluation thereof.
-According to § 2 (2). 1 (b). and a) and b) the Civil Service Act does not apply,
In addition, the employee who carries out other activities for a Member
Government, and to the employee who carries out activities for the head office
the Government of the Czech Republic (hereinafter referred to as "the authority"). Without these activities,
or their organizational integration, closer defined, literal
the interpretation of the condition that the law is on a particular Ministry or at the Office
the Government will not apply to anyone; the provisions will therefore require
the restrictive interpretation, guided, of course, subjective, and not
objective criteria.
-According to § 5 para. 1 (b). g) service includes management chapter of the State
the budget against the Organization of the State and legal persons folders, with
the exception of the staff of the Office in which the service is performed without the
account is taken of the fact that the administration of the chapter as a whole is generally
concentrated in one Department of the staff of the Office; According to § 5 para. 1 (b).
p) service includes public procurement without having taken into account
pursuant to § 2 (2). 1 (b). (j) the law does not apply), among other things,
even the ancillary and service work, which are apparently even actions immediately
related to the administration of assets, respectively. with the economy with property, where
public procurement is quite common, not to mention the fact that "the award
public procurement "is a process resulting in the meaning of the applicable law in
"the award of public contracts", § 5 para. 1 (b). p) doesn't count.
-In section 10(4). 1 (b). (b)) is missing from the expression of the Member of the Government who instructs.
-From section 13 paragraph 1. 2 show, and it manifests itself in other provisions
the law on the civil service, the Ministry of the Interior, the Deputy Director of the State
the service and the human resources Director for government service are separate
the authorities of the autonomous genius, in fact, the authorities
The Ministry of the Interior, and may only act on behalf of that
the Ministry, and not on behalf of his.
-The provisions of § 19 para. 3 provides that in certain cases it may
institution until the approval of the organizational structure of the staff of the Office
or her changes on a provisional basis to do so, as would the proposed organizational
structure or its amendment was approved, and if it is not designed
organizational structure or its amendment was approved, changes on a provisional basis
made from the outset and business relations with the return to the previous
status. If the organizational structure changes, or with which it is
provisionally linked fiction approval, in the event of subsequent
the disapproval from the beginning to cancel it, creates legal uncertainty for
for example. and in the meantime operations carried out, involving the public
with the associated resource.
-In section 30 paragraph 2. 2 is not in the enumeration of the particulars of the decision not to
post presented to execute successfully a desk is not a test
no doubt the legal obligation, how else could of § 35 para. 1 or
from § 191 para. 3.
-In § 37 para. 1 is reserved for the cases where the service scope
does not belong to the scope of any central administrative authority.
-In § 83 para. 1 the second sentence, it is assumed that the Government may, within
provide business space employees systemising, on which the
decide in the exercise of the rights and obligations of the provider in the implementation
support policy. Act No. 218/2000 Coll. on budgetary rules and the
changes to some related acts (budgetary rules), as amended by
amended, which regulates the provision of subsidies, however, in
connection with the private Institute for mediation.
-In accordance with § 117 paragraph 1. 1 of the law on civil servants can service authority
a civil servant to conclude an agreement on the execution of the service from another location, in
that particular conditions governing the performance of the service. With regard to the concept of law
the agreement in question will not have private, but public law
and from this point of view in the law modifying the terms of such an agreement is missing,
respectively of the Treaty.
-In article 185 paragraph 2. 2 (a). (c)), the words "and set a salary under part
the ninth "unrelated to the previous text and does not belong to that provision.
III.
The observations of the parties and the intervener control
17. the Constitutional Court according to § 69 para. 1 Act No. 182/1993 Coll., on the constitutional
the Tribunal, as amended by Act No. 18/2000 Coll., requested the observations of the parties
control of the Chamber of Deputies and Senate of the Parliament of the Czech Republic.
18. The Constitutional Court has sent the President of the Republic Government proposal also [section 69
paragraph. 2 Act No. 182/1993 Coll., on the Constitutional Court, as amended
Regulations (hereinafter referred to as the "law on the Constitutional Court")] and the public defender
rights (article 69, paragraph 3, of the law on the Constitutional Court).
19. The Ombudsman of the non-21. November 2014 informed
The Constitutional Court that does not use the right to join the proceedings
participant.
20. the Government in its resolution of 8 June 1993. December 2014 No. 1043, delivered to the constitutional
of the Court on 11 July. December 2014 acceded to the proceedings
participant. In the same resolution the Government stores to the Minister for human rights,
equal opportunities legislation and notify the Constitutional Court about this
the Government's decision and draw up, in cooperation with the Minister of the Interior, and send
The Constitutional Court the Government's observations to the present proposal, the President of the
of the Republic. Furthermore, the Government referred to the resolution mandated the Minister of the Interior
representing the Government in the proceedings before the Constitutional Court.
III./a
Representation of the Chamber of deputies of the Parliament of the Czech Republic
21. In the representation of the Chamber of Deputies, signed by Chairman John
Hamáčkem, that was the Constitutional Court delivered on 10. December 2014, is
rekapitulován the course of the legislative process so that the design group
members of the Chamber of Deputies was submitted on 23 December 2005. December 2013 and
circulated to members as the house printing 71. The opinion of the Government was handed out
members of the day 9. January 2014 as printing 71/1. The Government had expressed in it
opposition to the proposal of the law with reference to the legislative deficiencies and
conflict with the constitutional order of the Czech Republic.
22. First reading of the draft law was made on 22 November. January 1, 2014, when
The Chamber of Deputies adopted a resolution, which ordered the draft to
discussion of constitutional and legal Committee of the Committee for public administration, and
regional development and extended the deadline for consideration of the proposal in committees
to 90 days. The two committees discuss and draft bill on 27. June 2014
constitutionally the legal Committee adopted a resolution which recommends that the Chamber of Deputies
the House approved the proposal in the text of the comprehensive amendment
the proposal. The Committee on public administration and regional development resolution
did not accept.
23. in the second reading on 16. July 2014, the Bill passed through both General and
a detailed debate. A proposal to reject the draft law has not been filed. In
detailed debate with its amendments left the 18 deputies.
All the amendments have been submitted to a comprehensive amendments
the proposal contained in the resolution of the constitutional legal Committee. In the third reading
held from June 30. July and 1. and 27. August 2014, the Chamber
the Chamber of Deputies finally decided on the repetition of the second reading of this proposal
the law.
24. The draft Bill to renegotiate the two committees, i.e.. constitutionally the legal Committee
and the Committee on public administration and regional development. Committee for public
management and regional development on its 12. meeting held on 27. August 2014
a comprehensive amendment adopted and recommended to the Chamber of Deputies
the adoption of the draft law, as amended by this amendment.
Constitutionally the legal Committee at its 16. meeting held on 27. August 2014, set aside
its resolution of 27 June 2002. June 2014, and noted that discussed the
a comprehensive amendment presented by Deputy Jan Chvojka, takes
and it recommends that the Chamber of deputies that it took as a basis the
to the hearing.
25. The repeated the second reading of the Bill took place on 2 February 2005. September 2014, when
the Bill passed through both General and detailed debate. In a detailed debate
in the absence of a proposal to reject the Bill and amendments
presented MEP Jan Chvojka-comprehensive amendment-and
the other 14 members who submit their amendments to the
a comprehensive amendment of the MEP Jana Chvojky.
26. the third reading of the Bill took place on 10. September 2014, when the proposal was
the act as amended by the amendments approved by the number of 127
members of the 172 present, while 12 deputies voted against.
27. The Chamber of Deputies referred the Bill to the Senate on 12 June 2006. September
2014, which discussed and approved at its 25. the meeting, held on 1 May.
October 2014. President of the Republic has not signed the Bill, handed it back to
The Chamber of Deputies, which again acted on 24. October 2014 and the
She remained on its proposal. Out of 166 deputies present voted for the proposal
123 members and against 12. The Bill was subsequently delivered to the signature
the Prime Minister, and on 30 November. October 2014. The law was promulgated in the collection of
laws under no. 234/2014 Sb.
28. In conclusion, the Chamber of deputies in its observations, notes that the proposal
the law was adopted by the constitutionally prescribed procedure, that it is constitutionally
prescribed procedure made the consent of both houses of Parliament, was
signed by the respective constitutional factors and properly declared. It is on the
The Constitutional Court to examine the question of the constitutionality of the law or its
individual provisions and decided on the application for annulment.
29. the President of the Chamber of Deputies Signed Jan Hamáček further States that
Although according to the reasoning of the award SP. zn. PL. ÚS 24/07 of 31 July. 1.2008
(N 26/48 SbNU 303; 88/2008 Coll.) are the Presidents of the Chambers of Parliament
authorized to independently form the will of the Chamber, in the observations of the participant
the proceedings shall be entitled to the Constitutional Court on behalf of the Chamber to disclose only the factual
and the undisputed circumstances of the discussion of the draft law, it considers necessary
comment specifically to the part of the proposal, in which the President of the Republic presents
objections to the procedure, the adoption of the law. This statement has not been
discussed and approved by the entire Chamber of Deputies, and therefore cannot be
be regarded as the expression of opinion. The President of the Chamber of Deputies
pointed out that the question of the so-called. comprehensive amendments to the constitutional
in its findings, the Court has repeatedly dealt with, and came to the conclusion
This is one of the institutes of parliamentary practice, which ranges
the limits of the constitutional order. In this context, the Constitutional Court did not find
violation of the legislative process, a violation of the relevant provisions of the Constitution
even the law on the rules of procedure of the Chamber of Deputies, the violation of the rights of the Government of
or members of Parliament, etc. The Constitutional Court did not yet even this procedure
in the case that came as a Committee of the initiative
the Chamber of deputies or members of Parliament. Complex amendment is, in the opinion
The Constitutional Court still only amendment in the meaning of § 63 para. 1
point 5 (b). and) of the rules of procedure of the Chamber of Deputies. In
the case under consideration a comprehensive amendment to its subject, content
and the basic purpose of the nevybočil from the borders outlined the main group
the draft of the law. Although there has been to change the form of the amendment to the proposal for a complete
the text of the law, however, the full text of the law has changed, the subject and the
the content of the comprehensive amendment relating to the subject matter and content
the original proposal, the purpose of the comprehensive amendment had a close relationship
for the purpose of the original proposal and even prevent connections to other proposals
the laws, which were unrelated to the editing in question. For these reasons, it can be
clearly reject even hinted at by the President of the Republic, in the proposal
that could be treated in the relevant case. přílepek. You can also
reject the plea of President of the Republic, that the Government could not sufficiently
to exercise their rights, as in the present case, it was readily apparent that
a comprehensive amendment was initiated by the Government. At the same time should
the Government sufficient time to comment on the proposal during its
discussions in the Chamber of Deputies. In terms of clarity, legal
editing and legal certainty of the addressees can be evaluated receipt of the complete text of the
the law on the civil service as a more convenient procedure than the procedure through the
extensive amendment of many tens or hundreds of novelizačních points.
Adopted legislation must be clear, understandable and
predictable, and therefore the adoption of the new law is for the addressees of the significantly
clearer and easier to understand than the very extensive amendments to the
the existing Act by novelizačních points. On the basis of
of the above, the President of the Chamber of Deputies expressed the belief that in the
during the discussion and approval of the law has progressed
The Chamber of Deputies, in accordance with the Constitution, the law on the rules of procedure
The Chamber of Deputies and the existing case-law of the Constitutional Court.
III./b
Expression of the Czech Senate
30. In its observations to the Senate signed by the Chairman of the Milan that Private
the Constitutional Court was delivered on 28. November 2014, is an introduction
mentioned that the proposal made by the President of the Republic to the Constitutional Court after after
approval of the draft law in accordance with article. 50 para. 1 Constitution Day 8. October
2014 returned the law the Chamber of Deputies, the President of the Republic and its
access to this legislation, has said in his address in the Chamber of Deputies
House of the day 2. September 2014, which expressed a clear message against
the Institute of the so-called. political Deputy. The Chamber of deputies at its 19.
meeting of 24 April 2001. October 2014, the law remained and the law on the civil service
He was on 6. November 2014 the amount declared in the collection of laws under no. 99
234/2014 Sb.
31. the process of discussing the draft law on civil service in the terms
The Senate, in the observations that this Bill was after his
the approval in the Chamber of Deputies delivered to the Senate on 12 June 2006. September 2014 and in
The Senate was in his 9. term being discussed as Senate document No 336.
The Bill was referred to the discussion in three committees, in
the Committee of constitutional law, which was the Committee of guarantee, and the Committee of the
for territorial development, public administration and the environment, and the Committee for
health and social policy. Constitutional Committee Bill
discussed at its 37. the meeting held on 24. September 2014, and in its resolution
No 180 recommended the Senate approve the Bill discussed in the text of the
transferred the Chamber of Deputies. The Committee for territorial development, public
management and the environment discussed the Bill at its 30. a meeting of the
June 30. September 2014, and in its resolution No. 114 recommended the Senate
the present draft law approved by the Chamber in the wording of a transferred
the Chamber of Deputies. Committee for health and social policy discussed a proposal from the
the Act on their 24. meeting held on 30 November. September 2014, and adopted a resolution,
the content was, to this Committee-with regard to its scope of application-
Bill did. The Senate debated a draft law on the civil service
at its 25. meeting on 1 May 2004. October 2014. After the speeches of the rapporteurs of the committees
the proposal was presented to the Senate Bill, with reference
on it, the circumstances in which the Bill was discussed and approved in the
The Chamber of Deputies. This proposal (which have been voted on after the break
meeting of the Club of the SOCIAL DEMOCRATS) was not accepted, when the present 71 and senátorek
Senators when 36 quorum for proposal voted 28 and against was 32 senátorek
and senators. Subsequently, a general debate took place, and by the
Some Senators were on the Bill, the following reservations:
-reference to the opinion of the reconstruction of the State sent to the senators,
whose content was evaluation of the draft law is approved by the
The Chamber of Deputies with the requirements while the Reconstruction
State; in this sense, the Bill was seen as "the lack of
in terms of creating conditions for the stable and professional operation of the
the Czech Government ";
-in some performances it was pointed out the alleged politicization of the
the fact that the draft law was launched on
the Institute Directorate-General, and was incorporated into the draft law
the Institute of the so-called. political Deputy;
-in some of the performances have been given a substantive reservations to specific
the provisions of the draft law and it was announced the submission of amendments
the proposals, if the Bill gets into the details of the debate;
-on the objections relating to non-standard legislative process was
stated that it was actually about the non-standard process, on the other hand, however,
It has been pointed out, the circumstances in which the legislative process
"running";
-to the discussed matters relating to the so-called. political Deputy was
pointed out that this Institute is in many Western countries, quite common
and its function is based on the constitutional right of the system.
32. After the end of the general debate, in which also was filed the proposal to
the rejection of the draft law was in accordance with Act No. 106/1999 Coll., on the
the Senate's rules of procedure, as amended, first voted on
the proposal to approve the draft law, as amended by a transferred by the
the House, in its resolution as recommended by the two committees, and this proposal
has been approved; in a vote with a serial number 6 of the present 71
senátorek and Senators when 36 quorum voted for this proposal and against the 47
senátorek and 15 senators.
33. the President of the Senate, summed up that when discussing the Bill in the Senate
to it were the expression of reservations, in any of the performances, however, have not been
the appropriate adjustment in the sense, as is the case in the proposal
President of the Republic, that is contrary to constitutional principles, whether
in terms of the legislative process itself, in which it was adopted the law on the
the civil service, or certain of its provisions listed in submitted
the proposal. For discussion of the said draft law known to the so-called.
a comprehensive amendment was prepared under the responsibility of the Government (when
Office of the Government, then the Ministry of the Interior), and was also with the participation of the President
the Government and the other members of the Government discussed with the representatives of trade unions and
employers, as is apparent from the record meeting 110. plenary meetings
The Council of economic and social agreement of the Czech Republic. In the Senate overall, and
conscious of certain shortcomings of the Bill outweighed an approach based
on the need for its early adoption, saying that some of the charged
editing will be possible in the next period of change.
III./c
Observations of the Government of the Czech Republic
34. On 9 April. from 1 January 2015, the Constitutional Court received the observations of the Government sent
authorised by the Minister for human rights, equal opportunities and legislation
Jiří Dienstbierem.
35. the Government states that at the outset of its participation in the present proceedings it considers
necessary not only because of the needs of the rebuttal of the claims contained in the draft
President of the Republic, which it considers unfounded, but understands it as
the opportunity for a public defense of the need for the President of the Republic
the contested act, as well as rationality and constitutional conformity process
its adoption. The Government recalls that the President of the Republic affected
the law represents the fulfillment of 23 years of legitimate expectations
citizens of the Czech Republic in the adoption and application in the article. paragraph 79. 2 of the Constitution
the proposed law, which regulates the legal relations of public servants
in the ministries and other administrative authorities, and business law.
218/2002 Coll., in the opinion of the Government cannot be considered to meet that
legitimate expectations, since before its complete cancellation was its
efficiency, the originally planned from 1. in January 2004, a total of five times postponed
last by Act No. 445/2011 Coll. at 1. January 2015. Now the contested Law
According to the Government while the Government's obligation to the citizens of the United
States on the adoption of a functional and quality of the Act on civil service
obligation the United States resulting from the agreement on the document
Partnership for the programming period 2014-2020, or meet the ex-ante evaluation
conditionality for access to European funds that are for the Czech
Republic reserved for the years 2014-2020, the result of intensive
the synergy of the professional public, the Government and Parliament in the course of
the legislative process, the result of a democratic discourse, held by the
across the political spectrum, and this discourse in which all participants
they got the opportunity to get acquainted in detail with the present matter and
to make an informed comment on it, and at the same time also satisfy the condition
President of the Republic for the appointment of the Government (with reference to the speech
President of the Republic of 10 June 1999. January 2014).
1. the opposition procedure the adoption of law neústavnosti
36. the Government will first comment on the alleged unconstitutionality of the legislative
process. It stated that the legal argument of the applicant is based
especially on a general challenge to the constitutional conformity procedure the adoption of
the law on land in the Chamber of Deputies within the meaning of the alleged non-fulfillment
constitutional rules of parliamentary law or non-compliance with
constitutionally concurrent legislative procedure. Specific objections to the petitioner's
then are directed against: 1. the disposal of the Government of the constitutional law, submit to the
the draft law on the civil service of the opinion 2. the absence of explanatory memorandum to the
the draft law and, in particular, then 3. against the sheer scale of the complex
amendment submitted to the legal Committee of the constitutional
the Chamber of Deputies the draft, members of the Roman Sklenáka, Jerome Tejce, and the other on the
release of the law, amending Act No. 218/2002 Coll., on the service of the State
employees in the administrative offices and the remuneration of these staff, and
other staff in administrative offices (business law), [House
print 71/8 (hereinafter referred to as "the first comprehensive amendment")].
37. the Government at the outset, brings the relationship to the text of a comprehensive
Amendment (first and second), as these proposals are
President of the Republic contested the basis of the law. Formal-legal
aspects of the use of the Institute comprehensive amendment is then
at the same time and have become the subject of a proposal for the review of the constitutionality of the adoption process
the Constitutional Court Act.
38. the Role of the Government as the initiator of the submission, respectively.
legislatively-the first comprehensive technical text processor
the amendment is a generally known fact. Despite the fact that it is
According to the Government about the evident notorietu, forcing the formulation contained in the preamble to the
President of the Republic Government proposal to briefly describe your role
in the legislative process, the result is the President of the Republic
the contested law.
39. the Government recalls its statement of 14 January. February 2014, in
which mj. committed to the adoption of a functional and quality of the Act on the State
service with the fact that this law must ensure full depoliticize State
the Administration, clearly define the criteria for the recruitment and remuneration of officials,
to set the conditions of promotion and to ensure a high level of
education officials.
40. In its resolution of 8 June 1993. January 2014 No 39 the Government of Jiří Rusnoka had expressed the
its disagreement with the content of the proposal, members of the Roman Sklenáka, Jerome
Tejce and the other on the issue of the Bill amending Act No. 218/2002 Coll.
about the service of civil servants in administrative offices and on the remuneration of
These employees and other employees in administrative offices
(business law), (print, 71). The reason was mainly collisions
a number of provisions of the present proposal with the constitutional order and a valid
the law.
41. by its resolution of 3 July 2003. February 2014 No 85 in favour of the Government of Bohuslav
Sobotka family consent to the withdrawal of the draft bills, which presented the
The Chamber of Deputies the Government of Jiří Rusnoka. Among those proposals was also
the Government's proposal to amend the staff regulations Act and the accompanying Act to
professional law (print 96) and related Government proposal
the law on the amendment of laws related to the law on the civil service
(House print 97). The Government justified the Bills listed withdrawal
the need to "submit to the concept of State services for more professional and political
discussion, whose conclusions will be due to the rationalisation of the process of consultation
This adjustment reflected in parallel to the present parliamentary proposal
the amendment of the law on government service ".
42. Following the resolution of the Government No. 85/2014 discussed the Government on 5 December.
March 2014 material "Information for the Government of the Czech Republic on the procedure in the
Agenda civil service "(No. 195/14). This material included a description of the
the work on the preparation of a comprehensive amendment (i.e., information about the
the establishment of the Working Group and for the law on the Civil Service Council
the economic and social agreement, consisting of a legislativců Government Office,
The Ministry of labour and Social Affairs, the Ministry of the Interior and
The Ministry of finance and representatives of trade unions and employers ' organisations and
information on the meetings of the expert group to the political-design paragrafového
the text of the comprehensive amendment of the amendment Service Act composite
representatives of the coalition parties, legislativců, experts in the field of State
the service and the non-State non-profit organizations).
43. the impugned material was also the document "Factual overview
a comprehensive amendment to the printing house No 71, which was
at the same time submitted to members, professionals, but also to the general public to the
discussion (the material was also published on the website
The Chamber of Deputies). This document contained the instantiation
the elements which are necessary to ensure the efficient, professional,
public interest in defending and apolitical civil service, but the house printing
71/0 is either did not have or had to be newly defined. In the case of
the choice of different solution then the material suggested by the variant solution
designed for professional and political discussion.
44. On 5 July 2004. may 2014, the Government discussed material "timetable
implementation of the amendment to the law "(No. 430/14) and its resolution
No 325 members of the Government imposed, the head of central administrative authorities and
the head of the other administrative authorities cooperate within its scope
on the implementation of the timetable for implementation, and to provide to the head of
The Cabinet Office and Minister for human rights, equal opportunities and
legislation in its implementation.
45.28 June. may 2014 Government resolution No. 406 approved the mandate of the
for the Secretary of State for human rights, equal opportunities and legislation
negotiations with the European Commission on the Service Act.
46. at the same time during the year, the Government adopted a series of resolutions
relating to the implementation of the law (e.g., resolution of the Government of
on 5 July 2004. March 2014 No. 147, on the movement of personnel and issues
training activities in the public administration of the Ministry of the Interior to the Office
the Government; resolution of the Government of the day 9. April 2014 No. 242 to the agreement on
Partnership for the programming period 2014-2020; resolution of the Government of
27 June 2002. August 2014 no 694 to the agenda of the civil service).
47. the Government considers that the above enumeration of its
official documents (and their contents) is sufficient to
factual rebuttal of any concerns about violating the separation of powers
"the Government, in terms of the disposal of constitutional law to submit a proposal for a
the law on the civil service opinion ". It is evident that the Government has not been
not in fact truncated to its constitutionally guaranteed right to comment
on draft laws, since it is itself actively involved in formulating its
content and its legislatively-technical processing (including its
consultation of the social partners and professional public). Complex
the amendment was presented with her mind and publicly
the declared support of the breach of the separation of powers-or "the right to good
the legislation "(as defined by the Constitutional Court in finding SP. zn. Pl. ÚS
77/06) as in the opinion of the Government in this case.
48. The above, that is, the active participation of the Government in the preparation and formulation of
the text of the law, then apply not only for the first comprehensive amendment
(print 71/8) but also for the so-called. the second comprehensive amendment
draft (prints 71/10 and 71/11), which was submitted to the Committee
for public administration and regional development, and a member of Jan
Chvojka, as a result of political negotiations and coalition Government
the opposition, but also with the knowledge and support of the Government's publicly declared, and
at the same time and for the draft members of the Roman Sklenáka, Jaroslav Faltýnka and
Jiří Junek on the issue of the law on the amendment of laws related to the adoption of the
the law on the civil service (House print 242).
49. If the President of the Republic further argues that the "so called. complex
amendment lacks the explanatory memorandum ", the Government considers that this
objection irrelevant as factual, as well as of the Constitution
point of view. The first comprehensive amendment had been accompanied by the Executive
the message was. It was drawn up by the expert team established by the Government (see
above) and physically provided not only members, but it was
made available and the general public (URwww.statnisluzba.cz). With regard to the
that these Web pages do not contain these documents, Government
Annex to its observations for the Constitutional Court attaches a copy of the
that document of 29 April. may 2014, which includes
the preamble to each of the proposed provisions.
50. with regard to the above statement of fact of existence of the explanatory memorandum
the message then the Government merely points out that the Constitutional Court with the question of the consequences of
the lack of a comprehensive justification of the amendment in the past
He repeatedly, and concluded that the absence of justification
the proposal itself does not lead to neústavnosti as follows of the present and
the approved law [see e.g. find SP. zn. PL. ÚS 38/08 dated May 6. 10.
2010 (N 207/59 SbNU 3; 294/2010 Sb.), paragraph 39].
51. The question of the constitutionality of the use of a comprehensive amendment, which
the essence is to replace all of the text of the proposal of the law
complete text of new, or the general question of constitutionally Conformal
interpretation of the sources of law governing the legislative process, the Constitutional
the Court in the past has repeatedly explored [findings SP. zn. Pl. ÚS
21/01 of 12 October. 2.2002 (N 14/25 SbNU 97; 95/2002 Coll.), SP. zn. Pl. ÚS
5/02 of 2 July. 10.2002 (N 117/28 SbNU 25; 476/2002 Coll.), SP. zn. PL.
TC 12/02 of 19 June. 2.2003 (N 20/29 SbNU 167; 83/2003 Coll.), SP. zn.
PL. ÚS 23/04 of 14 July 2004. 7.2005 (N 137/38 SbNU 9; 331/2005 Coll.), sp.
Zn. PL. ÚS 56/05, SP. zn. PL. ÚS 79/06, SP. zn. PL. ÚS 24/07, SP. zn.
PL. ÚS 38/08, SP. zn. PL. ÚS 42/08 dated March 21. 4.2009 (N 90/53 SbNU
159; 163/2009 Sb.) as amended by an amending resolution SP. zn. PL. ÚS 42/08 from
27 June 2002. 5.2009, SP. zn. PL. ÚS 17/09 from day 1. 12.2009 (N 250/55 SbNU
415; 9/2010 Sb.), SP. zn. PL. ÚS 53/10, SP. zn. PL. ÚS 55/10 of 1 March.
3.2011 (N 27/60 SbNU 279; 80/2011 Coll.), SP. zn. PL. ÚS 10/13 dated
29.5. 2013 (N 96/69 SbNU 465; 177/Sb.)].
52. the Government recalls that the conclusions of the Constitutional Court on the question of the constitutional
conformance to the use of the Institute comprehensive amendment are
summarised in recitals 39 and 40 of the award SP. zn. PL. ÚS 38/08
(opinion of the Government then CITES both points).
53. In light of the above described Government's role in the legislative process and the conclusions of the
resulting from the above relevant case-law of the Constitutional Court
the Government considers the proposal of the President of the Republic for the derogatory nedůvodný, respectively.
justification this part of the proposal shall be considered as a sign of přepjatého of the theoretical
formalism, whose acceptance of the Constitutional Court in a given case would be just
meant de facto intervention, the autonomy of the legislature, and thus a violation of
the separation of powers between the legislative and the judicial. You can have a hard time
Imagine obhajitelnost derogation of the law justified merely on the basis of
the proposition that the implementation of a comprehensive modification of the legislation in the form of
novelizačních points is constitutionally conformal, but implementation of the content
the same modification in the form of new text (instead of the forms of
novelizačních points and while maintaining the material the same normative
content) already not.
54. Despite the above, the Government considers it appropriate, in order to meet the constitutional
the Court with reasons that it and the legislature led to the rational understanding on
the use of the Institute a comprehensive amendment of the type, respectively.
a comprehensive amendment, whose essence is to replace the whole
the text of the draft law submitted complete text new.
55. the Government worth that at the initial stage of the legislative process
responsibly engaged i (in the context of the content of the proposal of the President
crucial) the question whether the present (within the meaning of article 41, paragraph 2, of the Constitution)
the Bill is identical to the text content of the first comprehensive
Amendment (which would have been completely eliminated any theoretical
doubts about the constitutional conformity formal legislative page
procedures), or whether the use of the Institute a comprehensive amendment,
should the text of the original proposal was modified by law-
a proposal to members of the Roman Sklenáka, Jerome Tejce, and the other on the
release of the law, amending Act No. 218/2002 Coll., on the service of the State
employees in the administrative offices and the remuneration of these staff, and
other staff in administrative offices (business law).
56. A key role in choosing between the two above variants
played, in addition to the above conclusions resulting from the case-law
The Constitutional Court, in particular, take account of the factual situation summarized in the introduction
part of the representation of the Government, or its time dimension. Therefore 1. constitutionally
legitimate expectations-based acceptance function, and quality of the Act on
Government service, 2. the commitment of the Government to fulfill this expectation, so that
such a law came into effect on January 1. January 2015, 3. the question of the
vacatio legis law, 4. the question of the creation of the preconditions for the implementation of
the necessary preparatory steps for the application of the law in practice before
the planned efficiency, 5. the question of the development and release of the necessary
implementing legislation and official regulations, and last but not least
6. the question of ex ante conditionality for drawing on European funds, which
are reserved for the Czech Republic for the period 2014-2020.
57. the Government is therefore convinced that the chosen procedure (prioritization
of the initiative before the legislative initiative of the Government)
He was a rational, legitimate, constitutionally Conformal and did not violate the
the balance of power.
58. On the question of the constitutional conformity of a comprehensive amendment,
whose essence is to replace all of the text of the proposal of the law
complete text with the new, the Government states that, in the preparation of the texts of both
the amendments gave the maximum attention to the fact that the
all true kautely constitutionally drawn to the legislative process, and
it not only after the formal, but in particular the material. The Government, therefore,
in particular, while being careful to carefully, to 1. is a comprehensive amendment
apply to the subject matter of the proposal of members Romana Sklenáka, Jerome Tejce, and
more on the issue of the Bill amending Act No. 218/2002 Coll., on
the service of civil servants in administrative offices and on the remuneration of these
employees and other employees in administrative offices (business
the law); 2. the fundamental purpose of the comprehensive amendment had a narrow
the purpose of the present relationship to the fundamental law, or that the
the same as (edit the most challenging points of Act No. 218/2002 Coll.
in order to create a functional and modern model of the civil service and its marketing
in practice, after more than 12 years after the adoption of the original Act, was
available for sale); 3. a comprehensive amendment was based on the content of both
the original design group, partly from the original Government proposal
contained in house print 97 (called the amendment submitted by the Rusnokovou
the Government), who, although the current Government has taken back, but do so
Therefore, in order not to at the same time raised two parliamentary publications with the same
the goal, which would greatly znepřehlednilo the legislative process; 4. complex
the amendment responded to complaints that the original group
the proposal put forward in its opinion on the Government (that it cannot be neither
theoretically thinking about circumventing the Government, or the violation of the principle of the Division of
power); These complaints concerned the mj. the fact that the original proposal does not respond to
substantial changes since 2002 in the legal order has occurred, and that the
does not contain the so-called. change the law (i.e. that does not change the other related laws
though it was objectively necessary); 5. the selected procedure (complex
Amendment) abbreviated MPs on their right in detail with
the content of the proposal, and to submit it to the parliamentary discourse, and, where appropriate,
submit to it their own amendments. To the question of compliance with the law on
rules of procedure of the Chamber of Deputies a defined time and procedural
framework of the examination of both complex amendments (in which the
constitutional guarantee of protection projects of the real functioning of the parliamentarism)
the Government merely notes that all procedural time-limits and procedures were
respected, and for more detailed information refers to the observations of the President
The Chamber of Deputies.
59. the Government in connection with the above, does not conceal that its original
the intention was to prepare "standard" comprehensive amendment (i.e.,
the proposal, which would be in the form of novelizačních, or he changed points
he expanded the original proposal). During the legislatively-technical work
in preparing such a proposal, however, has shown that this "standard"
drafted a comprehensive amendment to the final recipients
standards greatly confusing and would effectively end its scope so as
thus represented a completely new version of the draft law, only with the difference that the
would be divided into a few hundred novelizačních points.
60. with regard to the above, as well as on the fact that clutter
the proposal should certainly result in a limitation of real options
such a proposal was qualified to discuss the lawmakers ' (which would be in violation of the
with the principle of parliamentary democracy), the Government decided, after
consultations with parliamentary parties, the first comprehensive amendments
the proposal will not be processed (and presented) in the form of novelizačních, but
in the form of a comprehensive text, thus de facto "full text", as the range of
the changes have been substantial (though often it was only the necessary formal refinement) and
the reflection of all these changes to "spot amendment" would not only lead to a
less clarity of text, but also to increase the risk of
formal defects in the course of the legislative process.
61. the Government considers that, in the course of parliamentary procedures to demonstrate that the
It was a beneficial procedure and, as already mentioned above, since
aprobovatelný, since you can hardly imagine obhajitelnost derogation
Act only on the basis of a reasoned argument, that the implementation of comprehensive
modification of the legislation in the form of novelizačních points is constitutionally
Conformal, but perform the same page content modification
in the form of new text (instead of the forms of novelizačních points) has not.
62. in the light of the foregoing, my Government considers that the proposal by the President
Republic for annulment of the act as a whole, as it is formulated in the first
the variant with the remedies, should be dismissed as nedůvodný.
63. in the event that the Constitutional Court agreed with the arguments of the Government and
He went to the derogation of the law, then the Government publicly declares his
readiness to resubmit an identical to the legislative process
legislation, and at the same time recalls the conclusion resulting from the award SP. zn.
PL. ÚS 56/05 (see above): "the Constitutional Court shall examine other circumstances
the present case, if the formal repeal of the legislation meant
the risk of readmission are identical edits except that
compliance with all aspects of the legislative process. In this case,
formal and procedural aspects of the review have receded from the standpoint of the principle of
of proportionality, the requirements of the material law, legal certainty
and effective protection of constitutionality. "
64. the Government is also shorthand for the thesis set out in the proposal of the President of
States that "the law will be applied in its entirety, basically from the 1.
July 2015 ". The Government draws attention to the fact that the law has acquired in the
for the most part from 1 January 2000. January 2015, with some of his
provisions should be laid down earlier efficiency, on the day of its publication in the
law, since even before the full effect of the Act was to be performed
some of the fundamental steps to its subsequent application seamlessly (cancellation
The General Directorate of the civil service in the Office of the Government, the existing
formally since 2002; the establishment of the staff of the place of the Deputy Minister of
of the Interior, civil service and your organizational unit called Department of State
services in the Ministry of the Interior as refunds for cancelled institutes
the Director-General of the civil service and the General Directorate of the State
the service; "flipping" existing senior administrative offices in the
proportion to the positions of leaders of official authorities in the prison service; the establishment of the
business places State Secretaries in the ministries and the Cabinet Office).
2. the objections relating to the individual provisions of the Act
Minor adjustments to the alleged unconstitutionality of the so-called employment relationship.
other staff in administrative offices
65. the objection that the contested provisions § 1 (1). 2, § 11 (1) 3, § 14
paragraph. 2, article 15, paragraph 2. 3, § 16, § 78 (a). (c)), § 85 para. 5, § 172, 173,
178, § 184 para. 2, section 189 of the Act on civil service are unconstitutional
an indirect amendment to the labour code, the Government states that the President of the Republic
the amendment to the labour code confuses the indirect, that did not occur, the
related specialties of the relevant provisions the law on government service
concerning employees in employment to subsidiárnímu
the labour code, which was in relation to "others" to employees in
the administrative offices in the election. This is a method of lex specialis derogat legi
generali, which is completely normal and permitted [cf. e.g. Act No.
312/2002 Coll., on officials of territorial self-governing units and amending
certain acts, as amended, (hereinafter referred to as "the law of
officials of territorial self-governing units ") or Act No. 563/2004 Coll.
about pedagogical workers and amending certain laws, as amended by
amended, which also contain special provisions for the
the labour code and that no one for indirect amendment to the labour code
albeit without referring to]. Special provisions generally apply in cases where the
There is a general law, however, cannot be sufficiently
the complex, to regulate this area completely. The labour code is so
in the regulation of legal relations of these employees in employment
in General, if the civil service statute provides otherwise.
66. the Government also cannot agree with the statement of the President of the Republic, that the
labor relations can regulate only the labour code with the
subsidiarity of the civil code. When the acceptance of this proposition would be
unconstitutional all labour legislation governing legal relations
certain groups of employees, such as the law on officials
territorial self-governing units, Act No. 553/1991 Coll. on the municipal police
as amended, Act No. 6/2002 Coll., on courts, judges,
lay judges and the State administration of courts and amending some other acts
(the law on the courts and Judges Act), as amended-
the assistants of judges, judicial čekatelům, and other judicial workers
Act No. 283/1993 Coll., on the public prosecutor's Office, as amended
-legislation in relation to the prosecutors and other personnel in the
prosecution offices, Act No. 257/2000 Coll., on probation and mediation
service and amending Act No. 2/1969 Coll., on establishment of ministries and other
Central Government authorities of the Czech Republic, as amended
the provisions of Act No. 65/1965 Coll., the labour code, as amended
regulations, and Act No. 359/1999 Coll. on social and legal protection of children,
(the law on probation and mediation service), as amended,
etc. The Government further notes that the legislation may contain both
standards of public law and private law [a typical example is
The Charter of fundamental rights and freedoms ("the Charter")].
To the alleged unconstitutionality of the edit fields of the civil service
67. the President of the Republic, argues the unconstitutionality of § 5 para. 2 of the law on
Government service for the inadequacy of State services and the edit fields
potential "refillable" nature of government regulation on the branches of the State
service instead of the constitutionally drawn to the "implementation" of the character.
68. First of all, it must be stated that the alleged unconstitutionality should
not related to the law on the civil service, but a Government Decree issued on
under the authority of this Act contained. A violation of the Constitution, it would be
the release of government regulations that would "complement" the law.
69. Furthermore, the Government considers it necessary to point out the fact that
the appellant understates the importance of section 1 (1). 1 (b). a) of the Act
defining the personal scope of the law on civil servants performing
in the administrative offices of the State administration, in conjunction with § 5 para. 1
of the act containing the enumeration activities service, which
This personal scope to be added. It is these two provisions,
that create a legal framework of disciplines of the civil service (State administration
carried on by the administrative authorities within the meaning of the law on the civil service is defined by
special laws laying down the scope of the administrative offices and the State
management performed by Government employees within the meaning of the law on the civil service
It is a subset of a, then its because the exercise of State administration, next to them
involved in eg. (I) persons in prison service under Act No. 361/2003
Coll., on the service of members of security forces, as amended by
amended, or soldiers in the prison service under the Act No.
221/1999 Coll., on professional soldiers, as amended),
that should be done by regulation of the Government. The law thus defined the legal
a framework of disciplines of the civil service, their detailed specification, then because of the
a more flexible response to possible changes in the scope of official authorities kept on
the implementing regulation. Government regulation of service industries but can
be issued only within the limits of the list of activities contained in § 5 para. 1
of the Act and of course within the limits of laws governing
the scope of the administrative offices in the area of public administration (e.g. in the case of
the preparation and implementation of the administrative operations of dozens of laws from various
disciplines of State administration from the environment through transportation to social
Security), because the scope of administrative offices may be according to the article. 79
paragraph. the Constitution provided for only by law and only in these statutory limits
It may be that the Government also released. You cannot, therefore, agree with the
arguing that the limits for the issue of government regulation cannot be inferred interpretation;
systematic interpretation is undoubtedly can be inferred, while naked
isolated grammar interpretation itself § 5 para. 2 of the Act
of course not.
70. the provisions of section 5 of the original law, which argues
President of the Republic, is the only explicit declaration (not rule)
What is in the main staff law defined using the same
legislative construction as to delimit the scope of the civil service take
the law on the civil service.
To the alleged unconstitutionality of establishing additional obstacles in the
Regulation of the Government
71. To the contested section paragraph 104. 2 of the law on the civil service, the Government states that the
obstacles in the circuit, in the contested provisions shall be established by reference to the
the relevant provisions of the labour code and Decree-Law No 590/2006 Coll.
laying down a lap and a range of other important personal barriers
job. Due to the fact that the rights and obligations of the State
employees and employees in employment are different, and so can
experience different barriers in the service, empowers the Government to extend the
the circuit of the obstacles in the service beyond the scope of the labour code and its adjustment
the implementing regulations. It is therefore, in principle, a similar adjustment, what is the
in § 199 para. 2 of the labour code, according to which government regulation
range of other important personal barriers at work than are listed in section
191 of the labour code, the employer shall provide for time off work,
to pay the wages or salary.
72. According to the article. 78 of the Constitution, the Government is authorised to issue regulations for the implementation of
and within the limits of the law. According to the case-law of the Constitutional Court, the Government must
keep within the law, that are either defined explicitly, or
arise from the meaning and purpose of the Act (findings SP. zn. PL. ÚS 17/95 and sp.
Zn. PL. ÚS 45/2000). Due to the fact that the law on the civil service
in § 104 paragraph. 3 empowers the Government to issue a regulation, and provide for additional
barriers to service, for which it is for the national staff salary ranges
the regulation, within the limits of the law, and the Government and its contradiction with the Constitution
does not find it, even with regard to a similar adjustment in the labour code, which
from this point of view has not been challenged, even by the President of the
of the Republic.
To the alleged unconstitutionality of the determination of the grade of the staff authority for
activities not listed in the catalog administrative activities
73. the contested provisions of § 145 paragraph. 3 of the law on civil servants from the Government
It is based on essentially verbatim from treatment contained in § 136 paragraph. 3
Service Act No. 218/2002 Coll., which was replaced by the law on State
service, IE. from the recently valid components legal order of the Czech Republic.
The purpose of the provisions is to bridge the period when business office must
immediately start a new exercise activity that is not listed in the
the catalog administrative activities (newsletter of the Government Ordinance) until
the amendment regulation will be made to the relevant Governments, that the activity in question in the
the catalog administrative activities. State employees who will
This new activity, so it must belong to a salary, while the
determination of grade should be based on the principle that the employee has
the right to a fair remuneration for work (article 28 of the Charter of fundamental rights and
freedoms), IE. Whereas, for the same work or for work of equal value, it is for
all employees of the same employer at the same salary. Even in the
other aspects can not be subject to the determination of the grade of position
the competent administrative authorities. It should be borne in mind that the determination of the salary
class is the scope of the performance in the area of public administration implemented in
the form of an administrative act, which means the application of the provisions of the law on the State
service of proceedings on the basis of § 159 services para. 1 (b). (d))
This Act shall be subsidiárním by the use of Act No. 500/2004 Coll., the administrative
of procedure, as amended. The rule of law in order to create sufficient
"checks and balances" that the appellant disputed uncertainty and arbitrage
exclusive. That provision is, therefore, in the opinion of the Government fully in accordance
with the constitutional order.
To request the determination of unconstitutionality alleged compliance with the
the democratic principles of the constitutional order of the Czech Republic for the adoption of the
leaving the service
74. To the contested provisions of section 22 of the law on the civil service governing
the requirement for compliance with the democratic principles of the constitutional order of the Czech
States for admission to employment, the Government states that, in accordance with the
§ 159 paragraph. 1 (b). and the Civil Service Act), for admission to the
leaving the leads in cases concerning services, IE. proceed as indicated in
of the administrative code (section 160 of the Act on civil service). In the course of proceedings so
must be adhered to the basic principles of the activities of administrative bodies and other
the rules of procedure in matters relating to the service, the decision must be justified and is
judicially reviewable on the basis of article. paragraph 36. 2 of the Charter of fundamental rights
and freedoms and the Act No. 150/2002 Coll., the administrative procedure code, as amended by
amended, which also applies to the above presumption of acceptance into the
of service. This is not a subjective or inconclusive
evaluation of the President of the Republic, argues.
75. The opposing provisions according to the contrary, a reflection of the constitutional Government
Court SP. zn. PL. ÚS 9/01 of 5 February. 12.2001 (N 192/24 SbNU 419;
35/2002 Coll.), which in the context of assessing the constitutionality of Act No. 451/1991
Coll., laying down some of the other conditions for the performance of some
functions in State bodies and organizations of the Czech and Slovak
The Federal Republic, the Czech Republic and the Slovak Republic, as amended by
amended, the Court held that the legislature should modify the
prerequisites access to public functions in its entirety and anchor in the
standard with such general application personal attributes directly in relation to the
of a democratic society. The Constitutional Court in that the award also pointed out
on the relevant case-law of the European Court of human rights (judgment in
things Vogt against Germany dated March 26. 9. the 1995 # 17851/91 and
things Pellegrin against France of 8 June. 12.1999 no 28541/95). In
the opinion of the Government then recapitulates the reasoning of the European Court
human rights and of the Constitutional Court concerning the necessity of loyalty
Government employees or employees of public service to the State and
the constitutional principles.
The alleged unconstitutionality of different procedures for the approval of systemising
some business offices
76. the provisions of section 17(2) was taken. 3 the law on the civil service is an exception
for the so-called. regulators, arising from the specific status of these offices
(from the requirement of independence of these offices enshrined in legislation
Of the European Union). Provision constitutes a guarantee for their independent and
impartial decision based on the fact that the Government cannot without the consent of
the one who is at the head of the competent authority (i.e. the one who guarantees the
independent status of the Office), limit the personnel of the authority and the financial substrate
resources for salaries, and effectively regulate (restrict) the activity of the Office.
If this exception was not in the law on government service listed, it would be
determination of systemising completely outside the real decision-making power of the person who
is at the head of the Office, even though for the proper exercise of its competence shall bear full
liability. Adjust the position of the so-called. regulators party systemising in
the law on the civil service is also in line with the case-law of the Court of Justice
The European Union (e.g., in the judgment of 9 March 2010 in case C-518/07
The Court of Justice of the European Union noted that the supervisory authorities in the performance of
its tasks must be provided with the space and conditions to act objectively and
impartially and for this purpose shall be protected against any external
the influence, including direct or indirect influence of the State, and not only before
the influence of the Organization, which oversees).
To establish the unconstitutionality alleged other cases in which it can be used with
view of the specific nature of the service to take the person to the service
for a limited period
77. In the contested provisions of § 21 para. 3 the law on the civil service, the concept of
"the particular nature of the services" without a doubt the vague legal term.
The legislature, however, its closer definition left to the discretion of
individual business offices as the indeterminate legal concepts
usual, but with regard to legal certainty has entrusted its definition
the implementing legislation. Intentionally created the space for it to
the Government itself has assessed, in which other cases, except cases
referred to in § 21 para. 2 of the Act (referred to in this provision,
to the service for a specified period shall take a person who has not yet successfully
has not exercised his official exam, and later in the case, in the case of the replacement of the
temporarily absent employee), it is possible to take a person to
of employment for a specified period, in order to respond to the
the possible development of this concept.
78. the Government may make regulations on its own initiative without any legal
the mandate, as it is empowered to do this article. 78 of the Constitution. It may, however,
as to the implementation of the law and its limits. The use of indeterminate
the concept of the rule of law in the empowering provision cannot, however, according to the
the opinion of the Government cause that government regulation will be issued praeter legem.
79. Having regard to all of the above arguments, the Government finally their
expression of the proposed that the Constitutional Court of the Republic on the proposal of the President
repeal of Act No. 234/2014 Coll. on State service, or its individual
the provisions of the rejected.
IV.
A replica of the applicant
80. The observations of the parties and the intervener was
sent to the applicant and to any replica. Applicant of its
the replica took advantage of the law, and a detailed comment, in particular, to
the opinion of the Government.
IV./a
A replica of the observations of the houses of Parliament
81. the representation of the Chamber of Deputies, respectively, of its President Rapporteur
refers to its opinion on the below representation of Governments, which is in the
compared to the expression of the Chamber of Deputies. For completeness
He adds that in the proposal presented to the Constitutional Court, nor to suggest that
should in the present case it was the "přílepek", how else could of
remarks by President of the Chamber of Deputies.
82. Similarly, in relation to the representation of the Chamber of Deputies, and in the
relation to the representation of the Senate refers to the opinion on the below
representation of the Government, if it comes to it, when it is called. a comprehensive amendment
the proposal constitutionally acceptable, and when not, and about the level of synergies
Executive with MEPs in the finalization of the draft law. At the same time
draws attention to the mention, in a representation of the President of the Chamber, that the
the objections in the general debate, even if it belonged to the final approval of the law in
The Senate did not alter that law was actually received in a non-standard
the legislative process.
IV./b
A replica of the observations of the Government of the
83. To represent the Government's opinion the appellant States that the Government sent
The Constitutional Court, the Government discussed and approved. From a material
point of view this creates doubt as to whether it is really the opinion of Governments,
or an expression of a personal opinion of the Minister for human rights, equal
opportunities and legislation, biased, where appropriate, in cooperation with the Minister
the Interior. The appellant, however, adds that this thing does not apply as the procedural
an objection, since it is based on the fact that fundamentally, whether and to what extent are
the relevant arguments put forward in the observations, however, draws attention to her,
as it fits into the overall context of procedural misconduct.
84. the participation of the Government in the preparation of hardened comprehensive amendment
the applicant States that it would be special if the Executive power at all
care about the Group of a draft law that directly relates, and
If its experts did not use to members with legislative
the processing of the proposal. Officials and members of the Government do not constitute a
the Government, as defined in the negotiations and the way it provides for the Constitution. Out of it
terms referred to in the expression of the Government's argument, issued for the views and
activities of the Government, is misleading.
The procedure of the adoption of the contested act
85. in its reply, the applicant insists that the procedure, in which
the contested act was adopted, is in contradiction with the fundamental principles
the legislative process enshrined in the Constitution. In the present case, there has been a
a situation where the existing law was replaced by a completely new conceptually
the legal adjustment by this new adjustment was made in the form of so-called.
a comprehensive amendment to the second reading of the draft
the law. Not so complied with the standard legislative procedure, where the draft
substantive law such as the law on civil service, IE.
the Basic code of service of public servants, is presented as a Government
the draft law, and is therefore provided with explanatory memorandum, passes through the
připomínkovým management, is discussed by the Government and its legislative
authorities, all this before proceeding to the discussion of the Bill
Parliament. However, the contested Law was discussed on the basis of the parliamentary
the Bill, to which, moreover, the Government originally took a negative
the opinion, in which, inter alia, draw attention to the conflict with the master
the constitutional order of the Czech Republic. It was only in the context of repeated second
reading of the draft law was submitted to a comprehensive amendment, in whose
the text of the contested act was subsequently approved. Due to these
facts the applicant is so convinced that in the present case was
ordinary legislative procedure violated the Constitution and guaranteed by the competent
successive legislation, which among other things has led also to the
the shortcomings of the law, on which the appellant points out in its proposal.
Their occurrence can be attributed to the absence of, for example, just execute
disagrees.
86. the applicant does not agree with the opinion of the Government, according to which the Government of the
the draft law on the civil service submitted its opinion and she has participated
to create this design. The reality is that the Government, on the basis of
article. paragraph 76. 1 of the Constitution, decides in the choir, in the meaning of article 87(1). 44 para. 1
The Constitution of the first or the second, final, comprehensive amendments
the proposal did not comment. If the Government refers in its observations on a variety of
the materials, which were discussed by the, then, apart from those
future regulation concern only indirectly, applicable only
material projednaný at a meeting of the Government on 5 December. March 2014, which had
informative nature, contained a factual overview of the comprehensive amendment
the proposal to the House of the press is, of course, 71 of the first comprehensive
the amendment, which still counted with the Directorate-General
the civil service, the material that the Government has discussed at its meeting on
May 5, 2014 and which contained a timetable for the implementation of the amendment
Service Act, in which the fiftieth anniversary of the existence of the Working Group on
the law on the Civil Service Council of economic and social agreement and with
political-group of experts composed of representatives of the coalition parties,
legislativců and experts in the area of the civil service, or material that
the Government has discussed at its meeting on 27. August 2014, which contained
the mandate for the Minister of the Interior and the Minister for regional development for dealing with
The Europeans by the Commission in the matter of Service Act, and information on the State agenda
the service, which concerned procedures related to the implementation of the future
the law. The proportion of officials selected resorts on finalising the parliamentary group
the draft law cannot be undoubtedly be mixed with constitutional law Government
comment on the draft law, the Government is not the submitter; the officials of the
they are not the Government.
87. The materials to which the Government refers in its observations, so
obviously cannot be understood within the meaning of the observations of the Government according to the article. 44 para. 1
Of the Constitution. This Institute (i.e., representation within the meaning of article 44, paragraph 1, of the Constitution)
has in the legislative process, however, of fundamental importance, since it is one
from the assumptions of the proper assessment and discussion of the Bill by the Parliament.
The right of the Government to comment on the draft law is also entitled
other participants in the legislative process to know the opinion of the Government of the
the present Bill. Together with the explanatory memorandum as the expression of
Government within the meaning of article 3(1). 44 para. 1 of the Constitution contributes to the smooth discussion
the draft law, which leads to a confrontation of different opinions
aspects, and when deputies and Senators on the basis of such a confrontation
vote knowing viewpoints of all parties. This is going to
maintaining openness to the public and control of the legislative process,
that are an essential part of the democratic principles on which it is
built the democratic rule of law. In the present case, however, the observations of the Government of
as well as the relevant explanatory memorandum to lose.
88. As regards the argument of the Government relating to the absence of the explanatory memorandum, the
According to the claimant's misleading. The Government referred to the explanatory memorandum
the first was a comprehensive amendment apparently submitted
members of the House in the form of printing, it was placed on the Internet
the page where is no longer present, and to the other comprehensive amendments
the proposal has not been submitted at all. There is no doubt that the absence of explanatory memorandum
reports on a comprehensive amendment itself still does not lead to
neústavnosti of the Act, the question is, however, must be assessed in the broader
context, as the applicant stated above.
89. in the reply, the applicant further notes that the vast majority of findings
The Constitutional Court referred to by the Government of the problem
does not apply to the remainder of the findings of the Constitutional Court shall in no case
findings from the findings of the Constitutional Court, the President's proposal
Republic refers and which is clearly and completely clear
the difference between the application of the legislative initiative in the form of the submission of the
the Bill and the amendment. On the basis of the applicant
marked with the findings it can be concluded that the second comprehensive amendment
the proposal exceeds 25 original proposal when edited by a whole new concept of law
the civil service, and so extensively that its content and scope
originally, the present Bill. The comprehensive amendment
the design does not fulfill characteristic of amendment, as
in relation to the original Bill did not show the character akcesority, but from the
This proposal, by contrast, significantly turned, respectively, to the fullest extent
He replaced. The Government's conclusion in the present case occurred the so-called.
the rules of marriage, is therefore necessary having regard to the above
on the contrary, reject, and noted that the comprehensive amendment
the proposal introduces a new legislative initiative. Approval of the design
the Act, as amended by the second comprehensive amendment was bypassed
Institute of legislative initiatives and violated separation of powers as one of the
the principles of the democratic rule of law. To the consideration that in drawing up the
a comprehensive amendment by novelizačních points to the original
the draft amendment to Act No. 218/2002 Coll., which follows the text of the reach
Act No. 218/2002 Coll., which would be consistent with the text of the law on the State
the service, and it would be so achieved constitutional conformity, the applicant for
completeness States that this reasoning is clearly contrary to § 63 para. 1
point 5 (b). and) of the rules of procedure of the Chamber of Deputies, which
He admits in the original proposal to change only some of its parts.
90. the observations of the Government that if the Constitutional Court, the law on the civil service
the Government shall submit the same cancels legislation, the claimant does not deal
opinion and opinion on this expression leaves fully on the Constitutional Court.
91. The explanatory memorandum, the opinion of the Government of a draft law and first reading are
themselves only a subset of the page with the legislative process. The entire
the legislative process is connected with the rules, which are formal,
but not an end in itself; their purpose is to create a high-quality
law of the democratic rule of law. There is a real risk that
If you allow the official to the hearing of a completely new design
a comprehensive Bill could start on the level of the second reading, as
in this case, it can have a negative and forward an indeterminate
implications for the entire legal order.
92. A mention of the applicant on the full applicability of the Act from 1. July
in its reply, the applicant then 2015 expands upon so that it was based on the conclusions of the
The Constitutional Court, that not always it is necessary to repeal the law, otherwise, adopted in
failure to comply with all procedural practices, if it should interfere with the
legitimate citizens ' trust in the law. Such a situation could occur if the
tens of thousands of employees will begin after 1. July 2015 request
admission to the service and following up on this to be the end
the year 2015 to service admitted.
To modify the employment relationship of the so-called. the other employees in the
administrative offices
93. the applicant repeats the reservation to respect the law on government service and
the labour code, the civil service statute that establishes a bi-directional relationship
to the labour code, in a way, that the employee in employment
the position, which is not with the legal order of the gracefully intertwined, and
founded as the clutter in the legislation. In the administrative service, respectively.
the offices will be in addition to the civil servants employed and employees, on the
that rule covered by the labour code. The civil service statute, however, with
them also counts, but without consistency on the labour code.
94. the applicant refers to several examples of neprovázanosti of both regulations.
In relation to section 178 of the Act on civil servants, according to which business
authority under certain circumstances to occupy the post by a person in the
the ratio for a limited period in accordance with labour legislation, argues
the applicant establishing inequalities between government employees and
employees. First, in the sense that for the performance of the same work had to State
employees, unlike the employees fulfill certain preconditions, and on the
the other hand, in the sense that, with the exception of the salary of employees find themselves
in an unequal legal status with government employees engaged in
the same work in the prison service.
95. The laws on which it is pointed out in the opinion of the Government, all
explicitly or implicitly assume the subsidiary application of the labour code,
without it a direct amendment be amended. As to the laws that govern, among other things
the conditions and procedure for the exercise of certain specialised activities, in
others are covered by the labour code, and in this sense can be
compared to that part of the law on civil service, which refers to Government
employees. None of the laws to which the Government refers, however, does not address the
labor relations for other employees, as it is the law of
the civil service, although no doubt these other employees, except those
already exercised by the law modified specialized activity, are both
territorial self-governing units, and the school of legal entities, courts,
the Prosecutor's Office and the probation and mediation service; from this
the Government's argument misses the point with the arguments of the appellant.
96. with regard to the opposition of the Government's claim of the appellant that the
labor relations can regulate only the labour code with the
subsidiarity of the civil code, the petitioner reiterates the §
4 of the labour code, the provisions of which read: "labour relations are governed by the
This Act; If you cannot use this law, is governed by the civil
code, always in accordance with the basic principles of the labour law
relations. " To do this, the applicant adds that the purpose of the law, to which the Government in
the opinion refers, edit them in the public interest assumptions for performance
certain activities, eg. functions and procedure for the exercise of these activities and
functions, with labour adjustment contained in the labour code on these
laws, with variations that are in them in accordance with their purpose
listed, smoothly. For legislation concerning the relationship
employees in the Civil Service Act and the labour code, however, it
the opinion of the plaintiff does not apply.
To the mandate for government regulation stipulating the service scopes
97. the appellant to the Government's argument that cited the unconstitutionality should
could relate to the regulation of the Government, not the law itself, States that it is not
rational wait for government regulation will be repealed by the Constitutional Court for
unconstitutionality and shall be withdrawn authorisation to its release.
98. the Government's argument that the legal framework for the issue of government regulation according to
§ 5 para. 2 of the law on government service can be inferred from § 1 (1). 1 (b). and)
in conjunction with § 5 para. 1 of the Act, it appears as a purpose.
Institute of field service to be essential for the definition of civil servants
within the meaning of the law on the civil service and to differentiate them from other
employees in the administrative offices, however, the law this term, and it
at least through its basic characteristics, which should
exhibit a, not an. These basic conceptual characters within the meaning of the above
provided, that would represent the legal bounds for government regulation, issued by the
According to § 5 para. 2 of the Act, and thus the basis for the systematic
the arrangement of the public administration, that is multi-layered, consisting of
a considerable number of different types of activities, cannot be found in the
the provisions of § 5 para. 1 of this Act. The rapporteur therefore considers that the
by the provisions of § 5 para. 2 of the law on the civil service has encountered a
the delegation of the editing issues to be regulated by the Act, the power to
the Executive, to the legislature, he resigned from his legislative obligation,
and undermine the principle of the separation of powers, so. As a result of this procedure also
among other things, the risk arises of a subjective approach, which may be exposed to
a variety of influences.
To authorise the Government to establish the range of barriers in the
99. the Government's argument referring to the similar modification contained in § 199
paragraph. 2 of the labour code, in the opinion of the plaintiff is misleading.
The mandate for the Government to establish a circuit of the barriers referred to in § 199 para. 2
the labour code, follows at least at the section 199 para. 1, while the authorization in §
paragraph 104. 3 the law on the civil service is not attached to anything and no legal
the limit does not. This is not to say that § 199 para. 2 of the labour code is
constitutionally entirely conformable. The criterion of meaning and purpose of the Act is in the
the case seems unusable ones.
To determine the grade of the staff authority for activities not included in the
the catalog administrative activities
100. According to the observations of the Governments of the applicant shows that if need be
to occupy the post uncovered in the relevant Government Decree catalog
administrative activities, the Government will have to be changed. Thus
the solution to speed up the legislative process in such cases than this thing
for a transitional period to deal with outside government regulation procedure, which is in the
contrary to the fundamental principles of the rule of law. The use of the
procedural rules in those situations, of which the Government talks, legal
the uncertainty of when the procedure outside of government regulation does not delete; procedural rules
they cannot replace the missing substantive.
To request compliance with the democratic principles of the constitutional order of the Czech
States for admission to employment
101. the applicant States that it is not a matter of loyalty to State
officials, as would result from the observations of the Government, but on an entirely
inappropriate reformulation of section 30 paragraph 2. 1 sentence last original staff
the law ("the service cannot be created ... person ... that cannot be
provably assume that it will comply with democratic principles... ").
The provisions of section 22 of the Act on civil service is: "To be leaving the
only accept the person for which it can be assumed that it will be in the
to adhere to the democratic principles... ".
102. The original Service Act required a "proof by presumption" that the person
duty to adhere to the democratic principles of the constitutional order and the
properly perform the service. By section 22 of the Act on civil service the
"weight" launched and, moreover, the negative wording of the phrase changed the replacement
the word "cannot" with the word "can" on its positive wording, the content of the entire
the provisions of the zrelativizoval considerably. According to the current text of the cited
the provisions comply with the basic condition for the adoption of the staff regulations
the ratio is left to the discretion of the de facto competent responsible persons,
respectively, the authority, with the law does not define the policy in any way, or
the limits, which should be guided by this reasoning. The procedural rules, which
the Government refers in its observations, cannot be understood as a material definition
the frame in which it is possible, an assessment of the fulfilment of the said
provided to move around, and this material cannot replace them frame.
Meeting of the assumption is left to the subjective, and nothing
Unlimited believe according to the applicant, which is contrary to the fundamental
the principles of the rule of law, in particular with the principle of legal certainty and the
the predictability of administrative decision, because as the appellant also
said, creates scope for discretion in deciding under which may
violate constitutionally guaranteed rights of citizens of the United States,
in particular, the right to equal treatment or constitutionally enshrined the prohibition
discrimination, since that provision can become an instrument for
the manipulation of the results of the selection process to fill the free service
space.
For the approval of certain official authorities systemising
103. the applicant submits that the observations of the Government that is defended the legal
adjustment, on the basis of which it will have seven out of a total of thirteen called
other Central Government bodies of the Government de facto right of veto,
When it comes to systemize and the volume of funds for salaries, raises
doubts in a number of directions. The Government classified between the regulators and the Czech
the Statistical Office, or so. regulators is confused with the supervisory authorities, which
gives the impression that only these seven bodies must be provided with the space and
the conditions to act objectively and impartially, and that in the final
due to the volume of funds on systemising and salaries in each
chapters are not Affairs of the Government, but the Chamber of Deputies, which approved
the State budget in detail the structure, and that it is the authorities of the child to the Government
and the Government is responsible for them. According to the appellant lacks logic and sounds
Oddly, the idea of the Government that the Government could, through the budget of the
threaten their business.
104. It is not known that any of these authorities was in its activities,
which must be governed by the laws, threatened. If sometime in the future it
It should be otherwise, the matter can be addressed by other legal instruments, before trying to
deal with section 17(2). 3 the fourth sentence of the law on government service.
For the determination of other cases in which a person may be taken into
of employment for a specified period
105. in the reply, the applicant States that its claim in the proposal, that the concept of
"the special nature of the service" is vague, it has been incorporated into the proposal for
in case a participant argued that the limits for government regulation are given by
just this term. Otherwise, the provisions of section 21 of the Act on civil service
According to the appellant the whole in breach of article. 78 of the Constitution at its core.
In the.
The abandonment of an oral hearing
106. The Constitutional Court did not expect from an oral hearing, further clarification of the matter,
therefore dropped from him under section 44 of the first sentence of the law on the constitutional
the Court.
Vi.
Formal conditions of discussing the proposal and the constitutionality of the procedure of adoption of
the contested act
107. The proposal was filed by the competent authority [§ 64 para. 1 of the law)
No. 182/1993 Coll., on the Constitutional Court] and complies with all the formal
Essentials.
108. As a preliminary point, the Constitutional Court considers necessary to deal with doubts
the appellant contained in the reply that the opinion of the Government is actually
the opinion of the Government, or just "personal opinion of Minister for human
rights, equal opportunities and legislation, biased or in collaboration
the Minister of the Interior ". The Government at its meeting held on 8 June 1998. December 2014
discussed the material called "the observations of the Government of the United Kingdom to design
President of the Republic for annulment of the Act No. 234/2014 Coll., on State
service or its individual provisions, served under file number
Mark pl. ÚS 21/14 "and adopted a resolution to it sent to the constitutional
the Court, which among others. approves the entry of the Government to the said proceedings, stores
the Minister for human rights, equal opportunities and draw up legislation
in cooperation with the Minister of the Interior of the Government on the draft opinion on President
the Republic and send these observations to the Constitutional Court. The Constitutional Court in this
respect the autonomy Government and respecting the manner in which its opinion in
relation to the specific proceedings before the Constitutional Court processes. On the difference
from the situation referred to in the award SP. zn. PL. ÚS 24/07, which highlights
in its statement the President of the Chamber of Deputies Jan Hamáček, under whose
conclusion the President of Chambers of Parliament cannot without further form the will of the
for the purposes of the relevant Chamber observations directed to the Constitutional Court, here
It was a specific permission of the Minister to handle the representation of the Government based
Once the mandate from the Government, that is, by order of the Government in respect of
to a specific ongoing proceedings before the Constitutional Court. If you
the Government in particular the processing of Government Minister's credentials views
did not reserve the right of final approval of that opinion, it was a
its autonomous policy decision that respects the Constitutional Court.
109. The Constitutional Court, in the procedure for the review of legislation is always examining in
the meaning of § 68 para. 2 Act No. 182/1993 Coll., on the Constitutional Court, as amended by
Act No. 48/2002 Coll., that the contested regulation was adopted within the limits of the Constitution
set out competences and constitutionally prescribed way. In the first part
the rapporteur proposes the remedies sought annulment of the contested act as a whole just
because of the way in the adoption of this tempered protiústavního law.
Vi./a
The course of the legislative process
110. the Constitutional Court on the basis of publicly available prints of the
the House and Senate, as well as the stenozáznamů of their actions (all available
on www.psp.cz, www.senat.cz) found the following facts:
111. On 23 December 2005. December 2013 was submitted to the Chamber of Deputies a proposal
members of the Roman Sklenáka, Jerome Tejce, and the other on the issue of the law,
amending Act No. 218/2002 Coll., on the service of civil servants in the
administrative offices and on the remuneration of such employees and other
employees in the administrative offices (business law), containing 104
novelizačních points. The proposal was circulated to members as the house printing 71.
In his opinion, the Government has expressed its disagreement with the proposed law (print
71/1). The President of the Chamber of Deputies has appointed a Rapporteur proposal, MEP
Jana Strategy.
112. The Chamber of Deputies on 22. January 2014 at its 5. the meeting ordered in
the first reading a draft law to discuss the constitutional legal Committee and the Committee of
for public administration and regional development, and extended the time limit to
review of the draft in Committee by 30 days (i.e. 90 days).
113. Constitutionally the legal Committee to draft law was adopted by 27 June. June 2014
resolution No. 52, which recommends that the Chamber of deputies that the draft
approved as amended by the comprehensive amendment of constitutional law
Committee (71/8). The Committee on public administration and regional development on
its meeting of 27 June. June 2014, the resolution did not accept.
114. The second reading took place 16. July 2014 at 12. the meeting of the
the Chamber of Deputies. In a detailed debate with its amendments left the
18 members, while amendments were submitted to a comprehensive
Amendment of constitutional legal Committee (all amendments
proposals are contained in the press 71/9). At the conclusion of the third reading on 27.
August 2014, the Chamber of Deputies agreed on the repetition of the second reading
(vote no. 107, resolution No 393).
115. The Bill again discussed the constitutional legal Committee and 27. August 2014
adopted a resolution (printing 71/11), in which, inter alia:
"I cancelled the resolution No. 52 of 27 July. June 2014 to print, 71;
II. notes that a comprehensive amendment was delivered to print 71
at the beginning of the hearing of constitutional legal Committee of 27 April. August 2014, Member of the
JUDr. Jan Chvojka,
III. discuss a comprehensive amendment members JUDr. Jana Chvojky
and takes note of it,
IV. it is recommended that the Chamber of deputies of the Czech Parliament, to take a comprehensive
Amendment members JUDr. Jan Chvojky as the basis of discussion. "
116. The draft law also discussed again the Committee for public administration, and
regional development, 27. August 2014 adopted its comprehensive
amendment and recommended the adoption of the draft law, the Chamber of Deputies
in the version of this comprehensive amendment (71/10).
117. repeated the second reading of the Bill took place on 2 February 2005. September 2014,
the law has gone through both General and detailed debate. In a detailed debate was not
a proposal to reject the draft law. Amendments was brought by 15
members of Parliament. Jan Chvojka delivered a comprehensive amendment,
a further 14 members of its amendments to be submitted to a comprehensive
Amendment of the MEP Jana Chvojky (all the amendments
the content of the print are 71/12, a comprehensive amendment of the MEP Jan
Chvojky is listed under the letter B1).
118. the third reading of the Bill took place on 10. on 14 September 2014. a meeting of the
The Chamber of Deputies. From the stenozáznamu of the 14. the meeting follows that
a comprehensive amendment of the MEP Jana Chvojky (71/12, letter
B1), recommended by the resolution of constitutional legal Committee (71/11) was
The Chamber of Deputies approved (vote no. 6, 171, are present for 127,
against 11). All other approved amendments shall apply to the
a comprehensive amendment of the MEP Jana Chvojky. About the complex
amendment to the Committee for public administration and regional development
It was not voted on, as it was in the words of the Rapporteur of the draft law of Jan
Chvojky substantively identical to its a comprehensive amendment that
has been agreed as the basis for further amendments (verbatim
minutes of 14. meeting of the Chamber of Deputies, 10. September 2014).
119. In voting no. 53 (resolution No. 395) was a bill approved in the
the text of the adopted amendments (172, are present for 127, against 12).
120. The Chamber of Deputies referred the Bill to the Senate on 12 June 2006. September
2014. The Senate it on your 25. the meeting, held on 1 May. October 2014 and discussed
has approved. President of the Republic adopted the law returned by the Chamber of Deputies,
that day 24. October 2014 remained on it (the present 166, 123,
against the 12). The approved law was delivered to the Prime Minister to sign a 30.
October 2014. The law was declared a 6. November 2014 (in the collection of laws in
the amount of 99) under no. 234/2014 Sb.
121. the Act took effect 1. January 1, 2015, with the exception of the provisions of § 13,
184, 185, 186, 187, 202 and 206, which took effect on the date of its publication in the
the Act, IE. November 6, 2014.
Vi./b
Assessment of the conformity of the legislative process of constitutional
122. the Constitutional Court to question the constitutional souladnosti of the legislative
the process has already expressed many times. Already in the award SP. zn. PL. ÚS 5/02
The Constitutional Court stressed the general requirement of "stability," and
the necessity of the legal acts on which the rule of law, and also in correlation
the lives of citizens in it lies; such acts, and also reaching the required
the authority of the legislative bodies, however, cannot rearm otherwise than respect for the
rules (principles of legislative activities) which, moreover, the Chamber's
the Chamber of Deputies as a major recipient of the legislative authority for this activity
the Act itself "(part V).
123. It should be assumed that the Constitutional Court is the judicial
authority of the protection of constitutionality, legality, and not normal (article 83 the Constitution).
In the case of supervision of compliance with the rules of the legislative process is
in doing so, keep in mind that the constitutional order modifies only some of the
legislative rules and their substantial part is left to adjust the
contained in the rules of procedure of the two houses of Parliament. The reason for the cancellation
the Act therefore cannot be free from non-observance of any provision
of the rules of one of the Chambers, but only the violation of constitutional standards.
124. To this must be added that in evaluating the constitutional conformity
the legislative process of the Constitutional Court is based on the fact that its rules
they are not an end in itself, but rather are set in detail and clearly
that is why, in order to avoid their abuse and to the Suppression of rights
of the different actors. Derogatory intervention the Constitutional Court could therefore
coming into consideration in principle in two cases: when the violation of any
the standards enshrined in the Indonesian Constitution (cf. find SP. zn. PL. ÚS 5/02), or
If, as a result of violation of the rules of procedure of the Chamber of deputies or
The Senate, in violation of the constitutional law, a principle or value.
These values are, in particular, legal certainty and predictability of the law
arising from the characteristics of the United States as the rule of law (article 1
paragraph. 1 of the Constitution), the free competition of political parties (article 5 of the Constitution) and
protection of minorities (article 6 of the Constitution), for which it is to be in that context
consider, in particular, the parliamentary opposition (in the case of abuse of the State of
legislative emergency. findings SP. zn. PL. ÚS 55/10 or SP. zn. Pl. ÚS
53/10).
125. the constitutional defects in the legislative process, that the applicant expressly
formulates, can be summarized as follows: 1. the disposal of the Government of the constitutional law
to submit a draft law on the civil service position and disposal
discussion of the Bill in the Chamber of Deputies, on first reading 2.
the absence of the explanatory memorandum for a comprehensive amendment, 3.
a comprehensive amendment to its subject and purpose did not change at all
the original proposal, but it was replaced by a new draft of the law.
126. All of the above reservations is closely related to the issue of
the constitutional limits of the amendments. Without additional pay, for
each amendment is missing representation of Government within the meaning of article 3(1). 44
paragraph. 1 of the Constitution, since the Government according to the Constitution, the draft law,
not on the amendments. Likewise, for any amendment
the proposal (whether administered in the Committee or in the detailed debate in the second
read) does not occur in the nature of things to its consideration at the plenary in the first
read. Justification the amendment also was not, until the amendments to the
rules of procedure of the Chamber of Deputies made by Act No. 265/2014 Sb.
effect from 1. March 2015, a legal requirement.
127. In other words, all of these reservations have constitutional relevance just
up in connection with the assessment of the extent to which have been preserved, the constitutional
the requirements formulated by the Constitutional Court (see below) on the amendments
proposals. Inadequacy of legislative procedure, whereby the circumvention of
the first reading, in the freeze-out representation of the Government or in the absence of justification
the amendment was formulated by the Constitutional Court in the background
undesirable practice called. "přílepků", when, in the second reading the draft law
adds in the form of amendment materie factually non-
by the draft law.
128. In finding SP. zn. PL. ÚS 79/06 (see above), the Constitutional Court
the issue of amendments extensively. According To The Constitutional
the Court "requirement of predictability of the law as part of the principle of the rule of
the State shall cease to be implemented — the moment when the Act is
part of another act in a formal sense, content with the adopted
the law has nothing to do. The orientation of the addressee the legal standards in the legal order
without the use of instruments of information technology becomes completely impossible "
(paragraph 39). "The right to be given to the draft laws during a parliamentary debate
amendments derives from the right of legislative initiative, however,
It is not identical with it, since it is naturally limited the realm reserved just
the realization of the right of legislative initiative. Already from the need to distinguish
the legislative initiative, and the proposed amendment, due to compliance with the
the elevated constitutional claims to the first named, it can be inferred that the
amendment should really only modifying the present legal
editing, therefore it should not even fundamentally altered or substantially expanded, and
the less should move outside the subject of legislative initiative, respectively.
the draft law "(paragraph 49). "Deviation from the limited space dedicated
amendments can be exceeded in intensity of the nature
the design or nature of the subject-matter defined by the proposal of a broad crossing
the law. The first case is the doctrine known as ".
legislative riders (â € šlegislative riders '), the use of which is in
The US often and excitedly discussed, however, is considered as
side, but constitutionally Conformal... " (paragraph 50). "From this first
the case, however, it is necessary to distinguish the second case called â € šwild riders '
("Wild Riders). In this case, the crossing of the test criteria
applied on the basis of the so-called. germaneness rule, i.e.. rules narrow
the relationship. In other words, it is about testing the question of whether in a particular case
It is a proper amendment or the draft, for which in the Czech
date of the so-called environment. â € špřílepek '. In this case, the
the technique of the amendment to the draft law, joins the Edit completely
another law, the legislative draft unrelated "(paragraph 51).
129. the Constitutional Court in the above-cited finding SP. zn. PL. ÚS 79/06
concluded that "constitutionally Conformal interpretation of the provisions governing the right of
amendment to the present draft law requires
that the amendment actually only pozměňoval presented by the legal
editing, IE. in accordance with the requirements of the so-called. the rules of marriage, according to the
the amendment must relate to the same subject matter, which is
currently being discussed in the legislative process, the amendment
not yaw from the limited space dedicated amendments in
the form of a broad subject of the present draft law exceeded "
(paragraph 73).
130. In finding SP. zn. PL. ÚS 6/12 of 9 June. 1.2013 (N 6/68 SbNU 103;
39/2013) then again, the Constitutional Court confirmed that when the resolution
allowable amendment and an unacceptable "přílepku" is the key
the criterion "whether there is a close relationship between the content and the purpose of the original
the draft law, and the content and the purpose of the amendment under consideration "
(paragraph 57).
131. the applicant points out, however, even on another aspect of the issue,
When it states that "a comprehensive amendment to its subject and purpose
the original design did not change at all, but it was replaced by a new proposal
the law ". The applicant thus disputes that although it is a proposal for a
amendment, does not "mangled" proposal, but effectively replaces the one
proposal (amendments to the original law) with a completely new design (the new
the law on the civil service). It then points out in its reply, the applicant also to
the observations of the Government that it is in fact a new legislative initiative.
132. The practice of the fact that the amendment does not formally
the Bill (in the form of novelizačních points), but its content is called.
a comprehensive amendment (that is, the form of the complete texts of the New Testament),
already the subject of an assessment of the Constitutional Court has in the past, albeit so far
It was never about replacing the amendment no longer applicable law the law is completely new.
For complex amendments then you can meet with those deficits
the legislative process, on which the appellant draws attention and which were
the Constitutional Court also critically reflected in the previous case law, i.e.
in particular, with the absence of the explanatory memorandum for a comprehensive amendment
or the absence of a comprehensive representation of the Government to this amendment.
133. In the present case is so necessary to distinguish between two aspects of the problem.
One is a form of a comprehensive amendment, the second is its contents
of the submission of the whole new testament.
134. as regards the actual form of the comprehensive amendment,
The Constitutional Court was already more than once in the past, faced with a proposal to
repeal of the law adopted on the basis of a comprehensive amendment,
While the existence of a comprehensive amendment has never been
derogačním the reason [cf. findings SP. zn. PL. ÚS 56/05, SP. zn. Pl. ÚS
24/07, SP. zn. PL. ÚS 42/08, SP. zn. PL. ÚS 33/09 dated March 29. 9.2010 (N
205/58 SbNU 827; 332/2010 Sb.) or SP. zn. PL. ÚS 38/08]. Despite the above
mentioned deficits which forms a comprehensive amendment
inevitably arise, the Constitutional Court did not consider it necessary laws as follows
received.
135. Your access to comprehensive amendments then Constitutional Court
summed up in finding SP. zn. PL. ÚS 38/08 so that the "so called. complex
amendments are no longer part of the reglementového rights in
The Czech Republic. On the basis thereof shall be approved and the constitutional laws.
The Constitutional Court has not yet had reason to challenge this procedure or in
the case that came as a Committee of the Chamber of Deputies initiative
When discussing the Bills (the usual case), nor in the
If this initiative originates in fact from the Government, which
This sought to eliminate the adverse effects of political proposals.
Rules of procedure of the Chamber of Deputies, the concept of a comprehensive amendment
does not know. It is one of the institutes of parliamentary practice, which, however,
moves within the limits of the constitutional order, when the draft law under discussion in the
the basis of the legislative initiatives of the authorized claimant under art. 41
paragraph. 2 of the Constitution ..., but the basis for the negotiations is just a complex
amendment ... However, this does not mean that a subject with law
legislative initiative ceases to be a â € špánem design ', since it is
still about his legislative initiative. Therefore, the only one with this proposal
(albeit in the form of a comprehensive amendment) has and can
take it back without further into the end of debate on the second reading, in which
on the basis of a comprehensive amendment of the legislative
the initiative involved (§ 64 in conjunction with § 86 para. 6 of law No. 90/1995 Coll.
of the rules of procedure of the Chamber of Deputies), with the approval of the Chamber of Deputies
even in the third reading "(paragraph 40). The Constitutional Court in that award
He recalled that on the basis of a comprehensive amendment were
approved two key components of the constitutional order, and that the Charter
fundamental rights and freedoms and the Constitution (paragraph 41).
136. The Constitutional Court did not consider it inconsistent with the constitutional principles
the legislative process, even if it was a comprehensive amendment
introduced into the law a new Institute or being designed by the master
It did not contain. The material was the same subject of rights in rem link
editing. For example. in the above-cited finding SP. zn. PL. ÚS 38/08
judged by the Constitutional Court complex amendment to the amendment
the law on courts and judges (No. 314/2008 Coll.), with a comprehensive
Amendment of constitutional legal Committee (print 425/1, the House
the Chamber of deputies of the Parliament of the United Kingdom, 5. the term) include also
topics in the Bill (425, 5. voting period) included
(appointment of judicial officers and removal or introduction of their
the functional period). The substantive link the same subject
(the regulation of the activities of the courts and judges), however, was retained. As well as
The Constitutional Court did not find in the report SP. zn. PL. ÚS 25/07 of 13 March 2002. 3.2008
(N 56/48 SbNU 791; 160/2008 Coll.) defects in the legislative process in relation
to the contested Act No. 181/2007 Coll., on the Institute for the study of totalitarian
procedures and on the archives of the security services and amending certain acts,
Although this law was adopted on the basis of a comprehensive amendment
the proposal, which according to the actual representation of the Chamber of Deputies (point 16 of the
the award) "brought a major conceptual change" compared with the submitted design.
137. In the case under consideration now is not disputed, that the substantive point of view,
how the original Bill [Bill members Romana Sklenáka,
Jerome Tejce, and the other on the issue of the law amending the Act No.
218/2002 Coll., on the service of civil servants in administrative authorities and
the remuneration of these staff, and other employees in administrative
offices (business law), print, 71], so a comprehensive amendment
[proposal for a Deputy Jan Chvojky (71/10, or 71/12)] concern in General
the plane of the identical, i.e., edit legal fabric of the relationships of employees of the State
within the meaning of article 87(1). paragraph 79. 2 of the Constitution, there is, however, present a new, Constitutional
the Court has not yet neřešený aspect of complex amendments,
the replacement of the amendment to the Act brand new law.
138. In this context, then, the Constitutional Court notes that the assessment of the
the context of a comprehensive amendment to the pozměňovanou template
You cannot only apply to the assessment of the conformity of the subject of legal regulation, but
also to the purpose of the comprehensive amendment tracks, IE. as to whether
its purpose is still mangled, or replacement by a master. Otherwise,
speaking, it is essential that the amendment still formally amends
a template, or it is replaced by the new draft law, which has not been
the content of the initiative.
139. In this connection, the Constitutional Court once again stresses the already above
the conclusion that "the need to distinguish the legislative initiative and amendment
the proposal, due to increased compliance with the constitutional claims to the former
appointed, can be inferred that the amendment should really only
modify the proposed legislation therefore should not even fundamentally
change, in principle, extend, and the less should move outside the
the subject of legislative initiative, and the draft law "(find SP. zn. PL.
TC 77/06, paragraph 49). The amendment is to be referred to the Constitutional Court "
the nature of the proposal an ancillary to a design that has been filed in the form of
legislative initiative pursuant to article. 41 of the Constitution. Therefore, § 63 para. 1 point 5
(a). and) rules of procedure of the Chamber of deputies of the Parliament of the United Kingdom
... demands that it emitted, expand or alter some of the
part of the â € špůvodního design ' "(find SP. zn. PL. ÚS 56/05, paragraph 41).
140. the requirement of akcesorického relation amendment to draft
Bill, a request for a mere alteration of the master in the form of amendment
the proposal, however, is not now the case under examination, as
proposal template (having the form of a novelizačních points in relation to the original
the staff of the new Act) revise the amending points, or form of
novelizačních points does not change, but the form of the amendment replaces by new
the law.
141. From the above perspective, it is so necessary to regard the applicant that
a comprehensive amendment, from which came the now challenged the law,
does not match the requirements of § 63 para. 1 point 5 (b). and the rules of procedure)
The Chamber of Deputies, or does not meet the requirement of akcesority in relation to the
the draft law, as the Constitutional Court required. Itself a form of
a comprehensive amendment, while the Constitutional Court tolerated,
However, it is permissible in the form of a comprehensive amendment to submit the
in the second reading the draft of the new law, which from the nature of things cannot
alter or add to the original template.
142. The case-law of the Constitutional Court, however, shows that even when the reunion
formal defects in the legislative process is not accessed without further
"automatically" to the derogation of the legislation, which of the following defective
the legislative process came: "in finding no. 37/2007 Coll., Constitutional Court
... to point out that any assessment of similar policy violations
the legislative process in the past, joining together with the test of proportionality in
principles of the protection of legitimate confidence of citizens in law, legal
certainty and acquired rights, possibly in relation to the other constitutional order
the basic principles, protected the rights, freedoms and public goods. The constitutional
the Court therefore had to assess the other circumstances of the case, not his
the role was limited to the review of hundreds of procedural misconduct of both
Chambers and their governing bodies, without any impact on the
the assessment of the material of the constitutionality of the rule of law. If the Constitutional Court
He began as follows by a reasoned proposals for repeal of the law suit from only
referred to procedural reasons on the border of the constitutional order and the
reglementového rights, created by the State of considerable legal uncertainty
particularly where there would otherwise be contested the law was not in terms of
the content can be above reproach. It was therefore to be assessed and the circumstances
that should lead to the Constitutional Court to restrict only to
a review of the observance of the close relationship between the original proposal and the amendment "
(find SP. zn. PL. ÚS 56/05, paragraph 44). In that finding, as the constitutional
the Court concluded that, despite the failure to comply with the requirements of the legislative
the process will not proceed to the derogation of the contested act. "In this case would
the formal repeal of the legislation ... has meant danger, when identical
the adjustment will be accepted again, only with the difference that the compliance with the
all the requirements of the legislative process. The Constitutional Court concluded
that, in the present case, the formal and procedural aspects of the review
pulling back from the standpoint of the principle of proportionality, the requirements of the principles of
the material law, legal certainty and effective protection
the constitutionality of "(paragraph 45). That finding is, moreover, relies on your
observations of the Government that also here "publicly declares its readiness to
resubmit into the legislative process, the same legislation ".
143. In finding SP. zn. PL. ÚS 55/10 (see above), the Constitutional Court further
distinguish "between whether the defect in question with regard to the legislative
process at all the conditions were met for the adoption of a specific law (eg.
because of the absence of the consent of one of the ventricles) or whether it is a defect in the
as a result she was hit by the constitutional order guaranteed rights
each of the participants of the legislative process, the use of which is fully
their ". The Constitutional Court reminded that it is not its role
"to examine, whether the discussion of the Bill constitutionally Conformal procedure
led to a different result (the content of the Act) than it was on the basis of faulty
procedure. Its mission is to protect the constitutional principles, which are to
prescribed procedure. " At the same time, however, is obliged to "take into account and
to other contexts, in particular to take into account the potential impact on the private
the person in terms of respect for the principle of legal certainty and good faith in
the validity of the law "(paragraphs 103-105).
144. The Constitutional Court had to consider whether it is possible to give in terms of
the principle of proportionality, take precedence over the derogations regulation "requirements
the principles of the material law, legal certainty and effective
the protection of constitutionality "and also assess" possible implications for private persons
from the point of view of respect for the principle of legal certainty and good faith in the validity of the
the law ".
145. As well as the Constitutional Court had to take into account the balance
the basic constitutional purposes for which in its case-law formulated by
the requirements on the quality of the legislative process, and assess the level of their
prejudice. The requirements on the quality of the legislative process is not an end in themselves.
Despite the fact that the Constitution nor any other part of the constitutional order of the most
aspects of the legislative process explicitly does not address, IE. nezakotvuje
requirements for the quality or content of the amendments, although the Constitutional
the Constitutional Court, the relevance of these important constitutional protection requirements
values, or constitutional purposes, through which it is then possible to procedure
infringing the right to podústavní (rules of procedure of the Chamber of Deputies) to consider
also the procedure unconstitutional. These values are typically legal
certainty and predictability of law as rule of law components or loose
competition of political parties and the protection of minorities, in particular the right of parliamentary
the opposition (see paragraph 124).
146. the difference in the situation where a defect in the legislative process will be
consist e.g.. in the absence of the consent of one of the Chambers, and goes about the apparent
contradiction with the formal requirement of the Constitution, or. Another constitutional law on
the one hand, and the situation when the unconstitutionality of violating podústavního
law (rules of procedure of the Chamber of Deputies) dovozována with the General
the constitutional principles, which can then be considered way or the degree of prejudice
the constitutional purpose (principle), for whose protection the Constitutional Court
formulates requirements on the quality of the legislative process, e.g. whether or not
on the form or the quality of the amendments.
147. it is therefore also Important to assess the extent to which were contested
the procedure without prejudice to the principles of legal certainty and predictability in the law (such as
the components of the rule of law), which are important constitutional purposes for
the protection occurs to some legal konstitucionalizaci
the requirements placed on the legislative process. It is equally important
to assess whether the alleged infringement of the rights of the Government of namítanému.
other bodies of the legislative process.
148. As regards the rights of the individual bodies of the legislative process, it is
no doubt that proponents of the amendment of the staff regulations to Act No. 218/2002 Coll.
members of the Roman Sklenák, Jerome Tejc and others remained "masters of design" and
they could at any time until their second reading to take a proposal back, even
twice, having regard to the fact that the second reading was repeated and
a comprehensive amendment submitted (after the political discussions and in
some modified form) repeatedly. As stated above, the Constitutional Court
not yet a reason to call into question the practice of complex amendments or
in the event that "should this initiative originates in fact from the Government, which
This sought to eliminate the adverse effects of political proposals ", which is
even now, the case is underlined by the fact that the Government draft law
a group of MPs expressed negatively (Government resolution dated 8 January
2014, the printing house 71/1).
149. The de facto Government's role in the legislative process leading to the adoption of
the contested act is closely connected with the alleged defect in the legislative
the process relating to the disposal of the Government of the right to submit its opinion on the
the draft law (de facto to a comprehensive amendment, which
the basis for the contested act). Rekapitulovaného observations from the top
the Government, it is clear that the Government not only does not feel prejudice neumožněním performance
its constitutional competence to express to each of the draft law within the meaning of
article. 44 para. 1 of the Constitution, on the contrary, on the origin of complex
the revised draft law reports.
150. The Government referred to the material called "Factual overview of the complex
the amendment to the printing house No 71, which was presented to the
professional discussion before processing the text itself of the complex
amendment and was available on the website
The Chamber of Deputies (Note 1), your objective, resolved to instantiate
the topics "to implement. Tejcovy amendment to the staff regulations of the law
(print no. 71) that are required for efficient, professional,
public interest in defending and apolitical civil service. The g/l entry is
divided into areas and primarily dedicated to requirements,
that so-called. Tejcova the amendment either does not contain, or have to be newly
define. The award is therefore not affect all aspects of the law, but
above all, change. This document confirms the default political agreement
the coalition of parties that will be legislated-technically finalised
a group of legislativců in the Office of the Government. In the case of a variety of possible solutions
the document contains variants for professional discussion. Factual overview allows you to
active involvement of all members and MPs to support debate on the form of
a comprehensive amendment to the amendment to the law and the application of
their critical comments before the competent committees of the Chamber of Deputies
the Chamber of deputies will begin to discuss the proposal with his paragrafového. It will also be
When the Office of the Government established political-expert group of representatives of the
political parties and representatives of the Office of the Government (UV), Ministry of finance
(MF) and the Ministry of labour and Social Affairs (MoLSA), dopracuje
the proposal in the area of pay and education. The so-called coalition amendment will
publicly discussed with the administrative authorities, the opposition, trade union representatives and
non-profit organizations. "
151. From the observations sent by the Government to the Constitutional Court, as well as from above
referred to "a substantive overview of the comprehensive amendment to the
House print. 71 "it is noticeable that the forthcoming comprehensive
the amendment was a Government initiative on the basis of the agreement of coalition
party.
152. The Constitutional Court in the findings, SP. zn. PL. ÚS 79/06 and SP. zn. Pl. ÚS
39/08 approvingly mentioned the view of jurisprudence, that "the Government should in the so-called.
comprehensive amendments to insist on their right to comment on the
the draft law according to art. 44 of the Constitution, because in fact it is the
covert a new legislative initiative "(Kysela, j. Making law in the Czech Republic:
truchlohra with a happy ending? The legal rapporteur, 2006, no. 7). With the knowledge
This approach to the Constitutional Court so anything the Government is against the content
or form a comprehensive amendment to object or take on your
observations pursuant to art. 44 of the Constitution, was the appellant's contention that it would
the Government was on their right truncated. Each Member of the Government has the right to
attend meetings of the Chamber of Deputies with the right of priority (article.
38 para. 1 of the Constitution). The Constitutional Court in finding SP. zn. PL. ÚS 38/08 addition
in assessing the possible shortening of the rights of the Government to the Bill express
consider the absence of a formal expression of Government decide to
a comprehensive amendment, but de facto the role of Government in
the legislative process, respectively. in relation to the comprehensive
amendment, while taking into account e.g. also concurring
representation of the Member of the Government during a parliamentary debate.
153. From stenozáznamů from 12. and 14. meeting of the Chamber of Deputies (7. electoral
period) when dealing with the press, however, does not imply anything like 71 and de facto
the procedure of the Government (or its members) when discussing print 71 about nothing
a similar day. The Government has on the contrary to the origin and content of the comprehensive
amendment in the observations sent to the Constitutional Court.
However, formally expressing Government to a comprehensive amendment
missing, in fact, was not in any way affect the rights of the Government, as the Government itself has been
the initiator of the comprehensive amendment and should be able to at any time
during the legislative process, so if the applicant's argument about the
shortening the constitutional competence of the Government, to notify or
directly to claim their right to express themselves.
154. It can therefore be concluded that, in order to be one of the purposes of derogačního intervention
The Constitutional Court's protection of the rights of the Government to comment on the draft law, the
this purpose in the case under examination now absentuje.
155. as regards the possible prejudice to the rights of other entities of the legislative
process, stressed the Constitutional Court in the above mentioned findings, SP. zn. PL.
TC 55/10 and SP. zn. PL. ÚS 53/10, that members of Parliament shall have
a real opportunity to get acquainted with the contents of the proposal and to take
its opinion in the context of its discussion in the appropriate Chamber of the
Parliament or in its institutions, which must have a sufficient time.
The purpose is to enable the adoption of reasons for confrontation or not
the relevant draft law, when representatives of the people must publicly justify
and defend their proposals and the public has the opportunity to check their
activity. This confrontation of positions on the parliamentary ground is also
the guarantee of free competition of political forces (article 5 of the Constitution).
156. In the case under consideration now, however, to the prejudice of the rights of the parliamentary minority
avoid, or it is not even explicitly argued. As indicated above, the
already the substantive intent of the comprehensive amendment was submitted not only
Parliamentary, but also broader public discussion (cf. for example.
The reconstruction of the State for an outline of a comprehensive amendment
to print the House No 71 of 25 April. 2.2014, available at
http://rekonstrukcestatu.cz/cs/archiv-news/8076-vyjadreni-to-vecnemu-
knowledge-komplexniho-pozmenovaciho-60% chance-to-print-snemovnimu-c-71).
The first version of a comprehensive amendment (71/8) included also
justification. In addition, as regards the relevance of the justification to Amendment
the proposal, in its reply, the applicant itself stated that "there is no doubt that the absence of
the explanatory memorandum to a comprehensive amendment itself still
does not lead to neústavnosti of the Act ".
157. For completeness, it should be added that the data available on the Web
the Chamber of Deputies website
(http://www.psp.cz/sqw/historie.sqw? o = 7 t & = 71), as well as the observations of the
The Chamber of Deputies as interested party shows that all statutory
the time limits for the consideration of the press have been observed 71.
158. It can be concluded that also the constitutional purpose of protecting other
the bodies of the legislative process in the case under consideration was not affected.
In contrast, the approach of the Government, which has been a de facto initiator and creator of
a comprehensive amendment, can be traced rather efforts to
transparent and open access.
159. as indicated above, an important constitutional purposes of the constitutional
the Court monitors when you examine the constitutional souladnosti of the legislative process,
It is also the clarity and predictability of the law or the rule of law as
a whole (find SP. zn. PL. ÚS 79/06, paragraph 39). in connection with the so-called.
"classified laws" (the same findings, paragraph 54), when the Parliament's amendment
added to the law regulating the scope of factually distinct area is not
thematically, in the name of the law and is becoming so in the legal order
hidden. This constitutional purpose, on the basis of which enunciated the Constitutional Court
the quality requirements of the amendments, however, in the case under consideration
Once again, as a result of absentuje present a legislative
the process is the approval of an entirely new law on civil service, which
cannot be considered as an unpredictable and hidden part of the rule of law,
that would be the addressees of the law when working with any legal order to deceive her.
160. the value of legal certainty it is when the amount indicated the necessity of weighing
abrogation of the law on the one hand and nepřistoupení to derogation on the side
the second present on both sides. On the one hand, in the case
When the law is adopted in a manner contrary to the rules of the rules of procedure
The Chamber of Deputies, on the other hand, however, may affect the right whether or not
the derogations follows the adopted Bill. When considering the intensity of the interference with the
the value of legal certainty, whether by legislative procedure, or
on the contrary, the possible derogations to the contested act, the Constitutional Court had to take into
consideration of the specific situation related to the completely laws by State
services in the Czech Republic. Act No. 218/2002 Coll., which was to be the proposal
Act members of the Sklenáka, Tejce and other extensively amended, should
recover after a few delays the effectiveness of up to 1. January 2015 (to the minor
exceptions), in the same moment (again on the minor exceptions) as now
the contested Act No. 234/2014 Coll. on State service. Seen thus, optics
the constitutional purpose of legal certainty, predictability, and clarity (
the rule of law), it must be stated that the purpose is not fundamentally
prejudice in a situation where "the entry" of the legislative process, there is the amendment
the law, which has extensively changed for twelve years valid, already thirty times
the revised, but still (with minor exceptions) the ineffective law
governing the status of public servants, and the "output" section of this
There is a process rather than an extensive amendment to the original Bill, but the new
the law, which governs the terms of editing the same item. Moment
the effectiveness of legal provisions, the civil service of the original Act
2002 (as amended by a number of his novels, including the forthcoming extensive amendment to the members of the
Sklenáka, Tejce, and others) on the one hand, and the completely new edit contained
in the contested Law on State service on the other hand was
the same as. In terms of the law, therefore, is not about mailing a situation that would
undermining the principle of legal certainty so fundamentally as a possible derogation
following the adopted Regulation.
161. By contrast, the contested act in derogation from the principle of legal certainty and the
confidence in the right hit very significantly, for all employees of the State
the management, who are switching to the mode of the civil service, then what
Twenty-two years after the effectiveness of the Constitution managed to consistently fill her
article. paragraph 79. 2, and implement a system of the civil service, once again after a few
months of the effectiveness of the law found themselves in a State of legal uncertainty about the
the functioning of the entire State administration, or its human resources base.
162. Referred to as a result of any postponement would prevent or
the enforcement of the finding, since it cannot be derogačního, just from the perspective of the protection of
of legal certainty, to the activities of the State administration and the functioning of the new
the civil service has been exposed to persistent uncertainty about whether in the
a defined period of time (the deferral of the enforceability of the award) can
enforce and approve the same or a similar version of the law on government service. In
If the contrary should the enforceability of the award was derogačního personnel
the basis of the State administration of the Czech Republic in a State of legal vacuum. It is necessary to
Once again recalled that the reason for this derogation should not protect entities
the legislative process that would feel without prejudice to the procedure that violates the
the rules of the legislative process, but the protection objective values
arising from the principle of the rule of law, the violation of the defective
the legislative process it represents. Implications of the derogation should, however, have been just
in terms of the principles of the rule of law, disproportionate.
163. it is thus necessary to see the difference in the legislation which the derogation in
the time of the enforcement derogačního the award has not yet been effective, or not
still applied, and regulation, according to which is crucial
the reform of the human resource base of public administration in the Czech Republic. On this
aspect, moreover, the Constitutional Court has already pointed out in the report SP. zn. Pl. ÚS
56/05, where in relation to the first of the finds that the question of limits
the amendments dealt with the "přílepku" embedded in the law on
banks said: "you cannot ignore the fact that, in the case of a finding of no.
37/2007 Coll. were unrealized law. In pioneering
the case of the article. (II) and article. (III) Law No 443/2006 Coll., amending Act
No 319/2001 Coll., amending Act No. 21/1992 Coll., on banks, in
as amended, the law has not been applied yet. In addition to the
It was his application essentially one-off. " (point
45).
164. In terms of the security of the legal anchoring of the civil service cannot be
overlooked or objections against the absence of State services in the United
Republic in the long term also came from the European Union, or
the fact that the major financial resources of the Czech pumping
Republic of the European Union funds was subject to being by State
the service. It should be also noted that the existence of State services as a
a condition of entry into the European Union before the accession of the Czech Republic
The European Union is satisfied just by the adoption of law No. 218/2002 Coll.
that, however, never regained (with minor exceptions), as its effectiveness
the effectiveness of the subsequent twelve years was postponed last to date 1.
January 2015. With regard to the obligations of the Czech Republic to the European Union
cannot be any derogatory action in relation to the contested Law
an appropriate response in relation to misconduct that a defect of the legislative
the process has generated.
165. the Constitutional Court thus concluded that, in terms of the way in the adoption of
the contested act in violation of § 63 para. 1 point 5 (b). and)
rules of procedure of the Chamber of Deputies, that is, from the perspective of the present
the case-law of the Constitutional Court to misconduct, which is also in contradiction with the
The Constitution. The Constitutional Court cannot aprobovat the procedure, in which the amendment is
the law (here the amendment Service Act No. 218/2002 Coll.) replaced when
a hearing in the House of representatives in the form of a comprehensive amendment
the design of an entirely new law (here the contested Act No. 234/2014 Coll.
Government service). There is then populated with the akcesority amendment request
the proposal, which requires that the amendment merely pozměňoval or
complement the original template, not replace it entirely new law,
even if it was the same, in substance, is the subject of legal regulation.
166. At the same time, however, the Constitutional Court had to consider whether any derogation
the contested act was not in conflict with the values of the material of the legal
the State of legal certainty and effective protection of constitutionality (article 1, paragraph 1,
article. 83 of the Constitution), and came to the conclusion that the protection of those values in the
the case under consideration now outweighs the interest in the derogation of the contested
the law, as explained above in paragraphs 142-164.
167. the political reasons that the Government gave rise to the said procedure, and that
the Government distributes rekapitulovaném in its observations above, it is not for
The Constitutional Court assessed.
168. the Constitutional Court for annulment of the Act No. 234/2014 Coll.
civil service did not find the reason.
VII.
The assessment of the constitutionality of each of the contested provisions of law No.
234/2014 Coll. on State service
VII./a
General starting points in the review of compliance with the constitutional provisions of the Act
policy
169. The Constitutional Court over the long term in the case of proceedings for review of legal
legislation highlights the principle of the primacy of the law constitutionally consistent interpretation
or its individual provisions before the derogations, that is
the duty of all public authorities interpret and apply the law of the
taking into account the requirement of the protection of fundamental rights and freedoms (article 1, paragraph 1, and
article. 4 of the Constitution).
170. As highlighted by the Constitutional Court for example. in finding SP. zn. PL. ÚS 44/03 of
on 5 July 2004. 4.2005 (N 73/37 SbNU 33; 249/2005 Coll.), in the democratic legal
the State which is seen primarily as a physical law, cannot be
allow the use of valid legal provisions in a manner contrary
some of the fundamental constitutional principles. The obligation of the courts to find
the right to not only search for direct, specific and explicit instructions in
the legal text, but also the obligation to identify and formulate what is
a specific law, even where it comes to the interpretation of abstract standards,
the constitutional principles, the provisions of the Charter of fundamental rights and freedoms and obligations
arising from international agreements. Of the many conceivable interpretations of the law
Therefore, you must in any case use only such an interpretation, which
respects the constitutional principles (if such an interpretation is possible), and to the cancellation of
provisions of the Act for unconstitutionality proceed only if you cannot
the provisions in question apply without was the constitutionality of the violated (the principle
minimize interference with the competence of other public authorities).
171. the alleged uncertainty range of the contested provisions, respectively.
inconsistency in some parts of the contested act, the Constitutional Court notes
that "the uncertainty of a rule of law should be considered as
for rozpornou with the requirement of legal certainty and, therefore, the rule of law (article.
1 (1). 1 of the Constitution), only if the intensity of this uncertainty
excludes the possibility of determination of its normative content using the usual
the interpretative procedures "[e.g. find SP. zn. PL. ÚS 10/06 dated 13.
3.2007 (N 47/44 SbNU 603; 163/2007 Coll.) or find SP. zn. PL. ÚS 44/03
(see above)].
172. In finding SP. zn. PL. ÚS 56/05 then the Constitutional Court stressed that
"the lack of clarity in the legislation must delete the case-law of general courts
and remove any fragmentation in decision-making in general courts
the competence of the Supreme Court. The Constitutional Court has already held that multiple times
in this area you may enter only in the case when at the same time it is a
a violation of the constitutional order, and unpredictability, uncertainty and inaccuracy
the legislation interferes with the basic requirements for extremely law in
the conditions of the rule of law. "
173. the constitutional dimension is typically given by, where is the unpredictability of
the impact of the legislation in the sphere of constitutionally guaranteed rights. For example. in
a satisfactory finding SP. zn. PL. ÚS 2/97 of 2 June 1997 7.1997 (N 91/8 SbNU
325; 186/1997 Coll.), to which the applicant refers, it was also about the cancellation of
laws affecting personal freedom guaranteed in article. 8
Of the Charter.
VII./b
The assessment of the constitutionality of § 1 (1). 2, § 11 (1) 3, § 14 para. 2, § 15
paragraph. 3, § 16, § 78 (a). (c)), § 85 para. 5, § 172, 173, 178, § 184
paragraph. 2, s. 189-tempered violation of the principle of predictability,
clarity and control of the legal system and the indirect amendments
the labour code
174. The Text of the contested provisions is as follows (marginal headings,
designation of sections. introductory paragraph, which are not contested, the design are in the
some parts of the left and, for convenience, in brackets):
"[§ 1]
(2) this Act regulates the organizational matters relating to the staff
in the administrative offices, who work in basic employment relationship.
[Staff Regulation]
[section 11]
(3) Service provision is binding for the State employee; business
the code is binding even for the staff in the employment of the executing
activities pursuant to section 5 and for a person in prison service under another act
Unable to perform service in the staff of the Office. Business Office is obliged to
to ensure that these persons were duly brought to the attention of the service regulations and
should have access to them.
...
[section 14]
[The head of the staff of the Office]
(2) the head of the staff of the Office also carries out the tasks related to the
labour relations of the employees in the Administrative Office.
...
[section 15]
[Secretary of State]
(3) the Secretary of State also performs tasks related to labour
relations of employees in the Administrative Office.
...
section 16 of the
Specific provisions on the implementation of some of the tasks of the staff regulations of the authority
Business Office supervisor in organizational matters, business services
the relations of civil servants and employees in employment relations
Administrative Office tasks for a business office, in which the service carries out or in
the service has a total of less than 25 people, and for the district mining
Office, District Social Security Administration, the regional Inspectorate
work, the Board of the financial Directorate or the tax office.
...
[section 78]
[Introduced is also required to]
(c)) perform the duties of the employees against a child of the employee
under the labour code,
...
[paragraph 85]
(5) paragraphs 1 to 4 shall apply mutatis mutandis for the employee in employment
executing the activities under section 5 and for a person in the staff ratio according to the
another law, included to the service performance in the staff of the Office.
...
§ 172
Systemising jobs
For the determination of systemising jobs of employees in the Administrative Office of the
§ 17 and 18 shall apply mutatis mutandis, with the number of jobs the Deputy member of the Government and
employees who perform work for the Member of the Government, including employees
listed in the Member of the Government Cabinet, or employees who perform
work for the Head Office of the Government, and their salary plan specifies, and the volume of
funds for their salaries is proposing the Member of the Government or the head of the
Office of the Government. Member of the Government Cabinet, means a body in the Ministry or
in the Office of the Government in whose jurisdiction it is formulating policies of the solely for
Member of the Government.
...
§ 173
Deputy member of the Government
(1) the Deputy member of the Government is a representative member of the Government, with the exception of things
which Member of the Government's reserves by law. In particular, is entitled to participate in the
as a member of the Government talks of a meeting of the Government and to represent it at the meeting
the Committee or the Commission, the Chamber of Deputies including the Commission of inquiry,
If it is not expressly required the personal participation of Member of the Government, or at the meeting
the Committee or the Commission of the Senate.
(2) the job of Deputy member of the Government is not in the organisational arrangements
the Administrative Office of the degree of control; Member of the Government may have no more than 2 such
Vice Presidents.
(3) a Deputy member of the Government is in an employment relationship with the State and appoints and
refers to the Member of the Government; Deputy member of the Government, which is not
entrusted with the management of the Ministry, is included in the Office of the Government.
...
§ 178
(1) the institution may occupy a business person in the work place
the ratio for a limited period in accordance with labour legislation, if
and a public employee does not perform the service) because of a temporary inability to
service performance for more than 1 calendar month
(b)) a public employee carries out military exercises or extraordinary service,
(c) employee on maternity) a State holiday or State
the employee or civil servant take parental leave,
(d)) has been released from a government employee in services on the basis of the resolution on the
the initiation of a prosecution for the offence, or because of the binding,
(e)) the State employees was discontinued service performance in order to further
education or vocational training,
(f)) was a government employee, or
g) a public employee was placed out of service performance.
(2) an employee referred to in paragraph 1 shall agree on the required
activities as a kind of work in the contract and it must pay according to the
part of the ninth.
(3) the Employees referred to in paragraph 1 shall at his request, will allow to execute
official exam.
...
[§ 184]
[Systemising and systemising jobs]
(2) Systemising under paragraph 1 shall focus in particular on the definition of the
official sites of public servants and employees ' jobs.
...
§ 189
Deputy member of the Government
The former head of an employee who, on the date 1. July 2015 works
as a Deputy member of the Government, unless it is a Deputy under section 188 paragraph. 3
(a). and), is considered as a Deputy member of the Government under section 173 paragraph. 2. "
175. the constitutional stipulation of the claimant with respect to all top-rekapitulovaným
provisions is the claim that the law on civil service in the selected
parts of the "does not correspond to the basic principles of the rule of law, including
not only the principles of predictability and clarity of the law, but also its
internal control "with reference to the above finding in the case rekapitulovaný
legislative "přílepků" SP. zn. PL. ÚS 79/06. The applicant shall be deemed to
the contested provisions for indirect amendment to the labour code.
176. The Constitutional Court in its assessment of the top rekapitulovaných of the infected
the provisions of the law on civil service does not occur to the conclusion that it is a legal
that would be hated the material requirements of the rule of law,
the normative content would not be possible to determine the usual
methods of interpretation, whether in the context of the contested act and the
the legal system as a whole.
177. the applicant refers to section 4 of the labour code, according to which
"labor relations ... governed by this Act; If you cannot use this
law, is governed by the civil code, and always in compliance with the essential
the principles of industrial relations ", which concludes next
a special regulation concerning any regulation of the labour
relationships.
178. the constitutional basis of this argument, however, is not entirely obvious. In the case of
the alleged collision between two different laws (law on State
the service and the labour code) is necessary in the interpretation of the contested provisions
consider the relationship of specialties and generalities of specific provisions referred to
Regulations (method of interpretation lex specialis derogat legi generali ").
It cannot be argued that the possibility of relevant provisions of the law on intepretace
the civil service of their special nature in relation to the
the General and, secondarily, used the labour code constitutionally excluded.
179. Moreover, section 1 defining the scope of the Civil Service Act states that
the law applies. "the legal relations of public servants
engaged in the administrative offices of the State administration "[para. 1 (a))],
as well as this, that regulates the "organizational matters relating to the staff
in the administrative offices, who work in basic employment relationship "
(the contested paragraph 2). It is not clear from the claimant's argument, why would
should be the interpretation of the special status of the law on the State
Service (or its individual provisions) in relation to the labour code
as constitutionally-conformist eliminated entirely. Any political suitability or
cohesion of that solution is another issue and its evaluation
To the Constitutional Court.
180. This method of interpretation of the relation of the labour code and special provisions
governing the legal relations of certain groups of employees in
legal practice common (e.g. the Act on officials of territorial self-governing
plants or Act No. 553/1991 Coll. on the municipal police, as amended
regulations), and cannot be so considered quirky or standing
completely outside the scope of possible interpretations of the relationship of the law on the civil service and
the labour code, and thus should be inferred that it is not possible, the contested provisions
constitutionally conformally to unload and proceed to their derogation.
181. the same is true of specially formulated a reservation to section 173
(read the position of the Deputy member of the Government), which according to the applicant
"the Civil Service Act does not belong", and rather than challenge
the constitutional conformity of the provision as to the controversy with the adequacy
the selected solution or with the adequacy of the inclusion of the Institute into the Act.
The Constitutional Court overlooked that the law on the civil service, on the
one [§ 2, paragraph 1 (b), (c))] provides that this Act does not apply to
Deputy member of the Government, and in conflict with this definition ratione personae in
section 173 regulates the position of the Deputy member of the Government. This approach is indicative of
uncontrolled legislative technique that leads to a contradiction in the law and also
overlapping of competencies with the Deputy for management section. The request to the
bezrozpornost of the law, however, could reach the constitutional dimension of
When you cannot even with commonly used interpretation of procedures
to reconstruct the intention to zákonodárcův. There is no doubt that the intention
the legislature has been to modify in this law the position of the Deputy member of the Government
and this intention was-although technically a poorly-executed (in law to
According to the internal law would be sufficient in § 2 noted that the Deputy member
the Government does not exercise its function in the staff ratio or something similarly).
Is not a matter of the Constitutional Court to assess the suitability of the material existence of the Deputy
members of the Government in this or a similar position; The Constitution is about the
Deputy member of the Government mentions only in connection with the representation of the Member
Government in the meeting of the Committee, the Commission or the Commission Of inquiry
the Chamber of Deputies (article 38 (2)). Found a contradiction, so does not have a constitutional dimension.
182. In the reply of the applicant are detailed examples of neprovázanosti both
legislation (the labour code and the law on the civil service), and in relation to the
the contested section 178 new constitutional argument resounds in the proposal originally
unlisted, consisting in the fact that this provision is based are unequal
the position between "civil servants" (i.e. persons in the prison service)
and "employees" (i.e. persons in the employment relationship). The inequality
According the appellant in that institution may, under certain
circumstances, to occupy the post by a person in employment for a period of
a in accordance with labour legislation, and the person in the staff
the ratio of had to, unlike the employees in the employment relationship,
meet certain prerequisites.
183. With regard to the distinction between persons in State service mode
and persons in the employment relationship is not based on any of the
the prohibited grounds of the distinction (cf. Article 3, paragraph 1, of the Charter), it can be
the objection to be understood only in terms of inequality, violation of the prohibition of arbitrariness
by the legislature when differentiating between bodies and rights within the meaning of the protection of
equality pursuant to art. 1 of the Charter [cf. e.g. find SP. zn. PL. ÚS 36/01 of
on 25 April. 6.2002 (N 80/26 SbNU 317; 403/2002 Coll.)]. Equality within the meaning of
article. 1 of the Charter may be breached only in the case when it comes to inequality
extreme or that lack any purpose and meaning, and it is
so the will of [cf. find SP. zn. PL. ÚS 47/04 of 8 May. 3.2005 (N
47/36 SbNU 495; 181/2005 Coll.) or find SP. zn. I. ÚS 173/13 of 20 November 2003.
8. the text of the amending resolution 2014, SP. zn. I. ÚS 173/13 of 10 February. 9.
2014]. The Constitutional Court then assesses the existence of reasonable (rational)
reasons for the different treatment [cf. resolution SP. zn. I. ÚS
3302/1 of 6 September 2005. 2. the 2014 or resolution SP. zn. I. ÚS 4664/12 of 3 April.
4.2014, available at http://nalus.usoud.cz].
184. In the case under consideration the situation occurs when different
persons (persons in the prison service and the person in the employment relationship)
treated identically, i.e.. the law allows a person temporarily working
the proportion occupied by duty station for reasons set out in the Act. However i
equal treatment of different entities may be unequal treatment in
now the Constitutional Court does not see any situation under consideration, that would be a temporary cast
the service places a person in employment (not professional) ratio
It was a manifestation of the arbitrary power zákonodárcovy without rationally acceptable
justification or without purpose or meaning. The reasons for this procedure are
Indeed, the legislature defined exhaustively in the contested section 173 paragraph. 1 and
lie in the temporary impossibility of persons in the prison service (State
employee) exercise. As for reasons entirely rational (temporary
the inability to service performance, military exercises, maternity or parental
holidays, etc.), the purpose of that edit is also apparent, and it
to temporarily resolve the absence of employees in the prison service. With this
also related to the fact that the "provisional measure" is legally possible only
conclusion of a contract for a definite period. The Constitutional Court concluded that the selected
the solution cannot be considered the will of zákonodárcovu establishing a constitutionally
neakceptovatelnou inequality.
VII./c
The assessment of the constitutionality of § 5 para. the alleged violation of article 2. 78 of the Constitution
185. the text of the contested provisions:
"[§ 5]
[Service and service scopes]
(2) the Government shall determine by regulation the scopes of service. "
186. the essential starting point for the assessment of the constitutionality of the above
the provisions of the law on the civil service's article. 78 of the Constitution, which States: "to
implementation of the law and within the limits of the Government is authorised to issue the regulation.
Regulation shall be signed by the Prime Minister and the Member of the Government. "
187. The Government is so authorised to issue government regulation without authorisation in the
the Act, unlike the ministries, other administrative authorities and bodies
local and regional authorities, which may, within the meaning of article 87(1). paragraph 79. 3 of the Constitution issue
pseudo-legislation on the basis and within the law, if they are to
mandated by law.
188. With regard to the fact that the Government has a constitutional privilege (the General
the mandate of the Government Regulation) to do any act, or any of its
provisions, the issue of compliance with the constitutional conditions expressed by the words "towards
implementation of the law "and" in its limits "in the first place the question of the assessment of the
a specific government regulations, rather than the legal authorization, as this Government
to its regulatory activities. In General, therefore, that the derogation
any legal authorization to issue a government regulation does not change the
the power of the Government to issue a regulation, since it is based on its own Constitution in
article. 78.
189. In finding SP. zn. PL. ÚS 45/2000 (see above), the Constitutional Court when
review of Government Regulation (not legal authorization) stated: "[uu] exhibition
the definition of a derived standardisation Executive rests on the following
principles:-regulation must be issued to authorized body-regulation
cannot intervene in the Affairs of the reserved Act cannot, therefore, lay down (
the primary rights and obligations),-must be the obvious will of the legislator to
modify the above the legal standard (must be open space for sphere
Regulation). "
190. In the case under consideration now, it is clear that the Act is empowered to
the competent authority (the Government), and clear and the will of the legislator to modify the above
as though the legal standard to the general mandate in the Constitution
the legislature expressly authorises the Government to modify the questions in the Act in detail
that are not covered.
191. in assessing the constitutionality of the legal authorization itself will be
essential to assess whether legal authorization from the diction is not obvious that
the legislature hereby authorises the Government to normotvorbě, it is not constitutionally mandated.
192. Typically, this will be a situation where the Government was empowered to modify the questions
constitutionally reserved to the legislature, for example. saving primary obligations
(article 4, paragraph 1, of the Charter) or setting the limits of fundamental rights and freedoms
(article 4, paragraph 2, of the Charter). A number of objections to the Act contains also the Constitution (e.g..
article. 20, art. 22 paragraph 1. 1, art. 24, art. 27 para. 3, art. paragraph 79. 1 and 2, and
For more). So in the past, the Constitutional Court annulled the legal authority, that
was the Government to regulate the areas dedicated to the law pursuant to art. 31
The Charter of rights and freedoms [SP. zn. PL. ÚS 35/95 of 10 October 1995. 7.
1996 (N 64/5 SbNU 487; 206/1996 Coll.)] or statutory authority, which in
contrary to the article. 39 of the Charter of delegated the definition of the constituent elements of
the offence to the Government Regulation [find SP. zn. PL. ÚS 13/12 of 23 July.
7.2013 (N 126/70 SbNU 147; 259/Sb.)]. In both the findings of the constitutional
the Court stressed that it is unacceptable that the sphere of the protection of fundamental
rights and freedoms came under the jurisdiction of the Executive, which is not
justified. In finding SP. zn. PL. ÚS 13/12 the Constitutional Court with reference to the
the finding of the Constitutional Court of the Czechoslovak Republic no mouth. 120/22-2/10
of 7 November. November 1922 (official sheet of the Czechoslovak Republic in 1922:
284, 5605-5608) reminded that already in the early days of building democratic
States in the territory of the country, it was concluded that the legislative act containing the
Verily the delegation of legislative power to the Government would change the Constitutional Charter
the fact that they have not yet joined the neobsaženou reservation, that much legislative
shall be exercised by the National Assembly only in so far as it nedelegovalo to the Government.
193. in addition, it will be a situation where it is from the actual wording of the legal authorization
apparent that the legislature imposing a government regulation issues standing
outside of the course carried out by the law (i.e. outside the limits of the content and the purpose of
carried out the Act). The limits of subordinate Governments required by article standardisation.
78 of the Constitution would then it could not be inferred from the enabling itself
the provisions of the law, or undertaken as a whole. As the constitutional
the Court in finding SP. zn. PL. ÚS 17/95 of 25 October. 10.1995 (N 67/4 SbNU
157; 271/1995 Coll.), the Government "does not need an explicit delegation in the
the Act, however, the regulation cannot diverge for legal limits-cannot, therefore,
be praeter legem. In other words, it must keep within the law, which
are either defined explicitly or arise from the meaning and purpose of the law. "
194. Most problematic situations can then be authorised to issue
Government regulation in areas where there has been within the meaning of article 87(1). 10A of the Constitution to the
delegation of powers to a supranational organization or body, IE. where
the national authority cannot exercise their competence to the extent
which to transfer powers under art. 10A of the Constitution there [to CF.
find SP. zn. PL. ÚS 50/04 of 8 May. 3.2006 (N 50/40 SbNU 443;
154/2006 Coll.), which, however, dealt with this issue in the context of
the assessment of the constitutionality of government regulations, rather than the legal authorization].
195. However, if a legal warrant for any of the above deficits
does not have, will be assessed in terms of fulfilling the conditions of article. 78 of the Constitution
to specific government regulations, which can be based on its content and
the wording of the inferred that moves within the law, or whether these limits
exceeds.
196. the applicant challenges the § 5 para. 2 of the law on the civil service, with the
"the provisions do not provide for the limits within which you want to move, and Government regulations
cannot be inferred or interpretation is probably the law ". As has already been the top
stated limits for Government Regulation may not result from a specific
the legal provisions enabling (here an infected § 5 para. 2), which
Indeed, the Government to its constitutional mandate, thanks to normotvorbě
or does not need, but can be dovozeny "from the meaning and purpose of the Act".
197. In § 5 para. 1 (b). a) to t) lays down the law on government service enumeration
activities that defines as a "service" [legislative stands for State
the service, introduced in section 1 (1). 1 (b). (b)) of the law on the civil service]. In § 1, and
2 is then defined the subject of the edit and the scope of the law on State
the service. Does not occur here when the Government imposes a mandate edited
questions of law reserved or edit questions present apparently
excluding the subject of the legal provisions, and when it is no longer just the legal diction was
clearly, the Government in the issue of the regulation cannot move "within the limits of
the law "as it under the Constitution.
198. the content and purpose of the Act, in particular its § 5 para. 1
defining activities falling under civil service can be inferred in
where is the Government when its regulatory activities will move. Scopes
the services are therefore not a thematic area that would be passed outside the content and
the purpose of the law on the civil service, as it is not a question which would
It can be inferred from the constitutional order of reservation law. The assessment of
whether a particular government regulation moves within the law, it is then no longer
things to review that government regulation.
VII./d
The assessment of the constitutionality of § 21 para. 3, § 104 paragraph. the alleged violation of article 3.
78 of the Constitution
199. The contested provisions § 21 para. 3 and § 104 paragraph. 3 of the law on State
the Constitutional Court shall examine together with regard to the alleged the same reason
the unconstitutionality of the relevant provisions.
200. the text of the contested provisions:
"[article 21]
(3) other cases in which, having regard to the specific nature of the service
take the person to the service for a specified period, determined by the Government
by regulation.
...
[LEAVE]
[Obstacles in the State employee-side and leave]
[§ 104]
(3) the Government may by regulation establish further obstacles in the service, for which the
It is for the State employees salary. "
201. In § 21 para. 2 the civil service statute provides that "[d] of the staff regulations
the ratio of fixed-term always accepts the person that has successfully
has not exercised his official exam. For a fixed period may be accepted per person
also in cases where it is necessary to replace a temporarily absent
employee. " The contested provisions of § 21 para. 3 of the Act then
allows the Government to establish other cases where it is possible to
to accept a person into the service for a specified period, and it "s
given the particular nature of the services ". According to the appellant, the concept of
"the particular nature of the services" vague, and therefore in breach of article. 78 of the Constitution.
202. Similarly, § 104 paragraph. 2 of the law on the civil service provides that
cases when barriers in the service belongs to the employees salary.
The contested provisions of § 104 paragraph. 3 of the Act then sets out again,
the Government may by regulation establish further obstacles in the service, for which the
It is for the State employees salary. Conflict with the article. 78 of the Constitution here
the applicant considers that there is, in fact, that it is the determination of the conditions "over the
the framework of the law ".
203. As a preliminary point, the Constitutional Court refers to all the above,
When it comes to assessing the compliance of legal authorization to issue a regulation
the Government with the constitutional order. Again, now that the Constitutional Court does not consider the
the constitutionality of a particular government regulation, but only to the constitutionality of the statutory
the mandate.
204. the legislature Will modify some of the questions the Government over regulation
the legal standard is from both the contested provisions clear diction, whether
as to the determination of the possibility of admission to the service for a specified period
or definition of the barriers in the service for which the employee's salary.
205. Neither of the contested provision does not regulate questions for which
reservation is valid, i.e.. that are constitutionally barred to modify in the
the form of a subordinate standardisation.
206. Similarly, the contested provisions nezmocňují the Government to modify the areas,
that is outside the scope of the law, that is, to modify such
questions which would be government regulation must necessarily move out of bounds
the law.
207. as regards the fuzziness of the concept of a contested "the special nature of the service",
again, the limits for the issue of government regulation might not be established
explicitly in the legal provisions empowering the Government to its
normotvorbě or does not need, it is sufficient to infer them from the meaning and purpose of the
the law. However, if you already are the limits in the empowering provisions laid down
vague legal term "the special nature of the service", it should be added that the
given the indeterminate legal concepts are a normal part of the rule of law and
the subject of the standard interpretation of the legislation. As defined by law
a vague legal concept of then State authorities interpret. is
directly in the secondary regulations stipulate, if having a regulatory
powers. As stated in theory of administrative law, "diversity and variability
relationships, the need to take into account all the possible conditions of the application in the light of
to changing circumstances bring with them a fairly wide use of so-called.
indeterminate legal concepts. Indeterminate legal concepts include phenomena or
the fact that you cannot successfully legally define exactly. Their
the content and scope may vary, it is subject to the level of knowledge in the
technical sciences and the time and place of the application of the standard. The legislature creates
space management, to assess whether a particular case belongs to the extent
indeterminate term. Requires its expertise. Somewhere she helps,
try to include as many of the characteristics of things or events,
that has an indefinite term include, sometimes stores that the concept
refined management itself in the implementing legislation "(Hendrych (D).
Administrative law. General part. 8. release. C. h. Beck, 2012, p. 80-81).
208. Once again it would be things to a specific government regulations, assessment
If the regulation of the (albeit vague legal term)
the limits of the vybočilo and found itself in conflict with article. 78 of the Constitution. In itself, however,
the use of indeterminate legal concept for determining the limits of standardisation of the Government
the unconstitutionality.
209. As recalled in the report, the Constitutional Court SP. zn. PL. ÚS 13/12, if the
ústavodárce has entrusted a certain competency solely to the law, "ruling out the
other cases possible and desirable secondary editing things
unforeseeable at the time of adoption of the Act, subject to frequent change,
drill down to a particular technicistního character, when the legal basis may
contain only the Essentials ". Just the reasons of
"the special nature of the services" can be (in the words of the cited award SP. zn. PL.
TC 13/12) "unpredictable in the moment of the adoption of the law" or "subject to
frequent changes "and thus eligible to teach advanced podzákonným
legal regulation.
210. In both the contested provisions occurs to the fact that some of the cases
that has otherwise by legal authorization to identify government regulations,
regulated by the Act itself (the cases of admission to employment and for a period of
a in section 21 of the law on government service or performance barriers in the services section
104. the applicant concludes from the above that (specifically in relation to § 104 paragraph.
3) that it is a modification of "beyond the law".
211. the provisions of the two, however, is the apparent will of the legislature, some questions
Edit directly in the law, and some leave to perform by way of regulation
the Government. Unless it is generally about issues for which the reservation applies, so
as it was defined above, this procedure cannot be regarded as unconstitutional.
Reservation of the Act therefore cannot be inferred merely from the fact that some
the questions that the Government has already directly itself, it specifies the
the legislature (e.g. some barriers in the service), if other questions
(other obstacles in) expressly Executive leaves. This
the procedure, while hampering Government legislature to adjust differently those obstacles
in a service, which decided to specify directly the legislature itself, by contrast,
However, the Government allows the explicit mandate to specify obstacles
For more. It's not so much a modification of "beyond the law", for the law with this
by adjusting the counts and expressly confers on the Government of this competency. It is for the
the legislature, which adjusts itself and the area to which empowers the Executive,
or leaves the Government space to her normotvorbě (for example, due to the need
a more flexible response to the new situation) if it is not the content of the mandate of any one
from the above defined cases (above sub VII./c), in which the authorisation can be
It is not (typically the Regulation subject to the Act, in particular the determination of the
obligations or the limits of fundamental rights). In both cases, however, under consideration
statutory violation, in particular, it is not about saving
obligations or of interference with fundamental rights.
212. The limits of subordinate legislation, obstacles in the service can be inferred
of the purpose and meaning of the obstacles in the Institute (or barriers in the
work), as well as the analogous species or type the nature of those obstacles,
that the legislature itself explicitly modified. Although you can't exclude blip is that
Executive power in normotvorbě, which is, however, no longer the question again
the constitutionality of specific implementing legislation.
VII./e
The assessment of the constitutionality of § 145 paragraph. 3-the alleged contradiction with the basic
the principles of the rule of law establishing the legal uncertainty and the possibility of arbitrariness
213. the text of the contested provisions:
"[§ 145]
[Special provisions on tariff and salary grades]
(3) for the new post of State employees, which have
engage in activities not listed in the catalog administrative activities, pay
the class provides for institution with the consent of the Ministry of labour and
Social Affairs and the Ministry of finance. "
214. the applicant considers that the contested provisions conflicting with the basic
the principles of the rule of law, establishing a legal uncertainty and creating,
outside the normative modification contained in Government Regulation (catalog of the administrative
activities), the room for discretion in decision making.
215. as already mentioned above, the Constitutional Court, in the case of proceedings for review of
legislation should always be considered whether there is a constitutionally
Conformal interpretation the contested legal option provision and the
only in the case that constitutional interpretation is not possible, you can
proceed to the derogation of the contested provisions.
216. According to the observations of the Government, the purpose of the contested provisions of the bridge
the period when the business office must immediately start a new exercise
an activity that is not listed in the catalog administrative activities
(the newsletter of the Government Ordinance), until the appropriate
the amendment to the regulations of the Government, that the activity in question in the catalogue of the administrative
activities make up.
217. The statutory provisions is therefore clearly intended to ensure that the possibility of
the determination of the salary of State employees until such time will
the Government Decree defining the catalogue of administrative activities relevant
the activity of the amendments added. In terms of the objectives of the legislation so as to
populate the requirement of article 81(3). 28 of the Charter of fundamental rights and freedoms (the right to
workers on fair compensation for the work).
218. The alleged risk of legal uncertainty and arbitrariness resulting from that
However, in the opinion of the Constitutional Court, preventing enough constitutional
the principles, which should be referred to the provisions of optics apply and
to interpret. In determining the grade institution must ensure
the principle of equal treatment in remuneration (for similar work similar
reward) and progresses in the procedural framework contemplated by the Act on
Government service [service proceedings according to section 159-169 of the law on the State
the service, among others. also in matters of decision making on remuneration according to section 159 paragraph. 1
(a). (d))], respectively. in the framework of the applicable banking predicted
of the administrative code (section 160 of the Act on civil service).
219. the Constitutional Court considers that the wording of the contested provision thus
does not conflict with the principles of the rule of law, on the contrary, its constitutionally Conformal
intepretace and, in particular, application is possible, therefore, to derogačnímu intervention
the parties to the Constitutional Court is not given the space.
VII./f
The assessment of the constitutionality of § 22-the alleged contradiction with the fundamental principles
the rule of law
220. the text of the contested provisions:
"§ 22
The basic prerequisite for the admission to employment
Staff can only be taken for a person that can be
assume that they will be on duty to adhere to the democratic principles of the constitutional
order of the Czech Republic and to perform properly. "
221. According to the applicant, the contested provision violates the principles of the rule of
the State as it is "based on subjective, inconclusive and unlimited
believing ".
222. now under consideration, or in the provisions of the Constitutional Court does not find it
unconstitutional defect does not occur, respectively, and concluded that it could not be given
the provisions interpreted constitutionally conformally. The purpose of the contested provision is
apparent, and to ensure the loyalty of the employees of the public service to the State,
or against the constitutional system and constitutional principles. The purpose of the provisions,
the Government in its observations, also with reference to the relevant case-law
stresses, however, is not the subject of the dispute, the subject of the dispute is the only
the wording of the provision.
223. The words "you can assume" but again cannot be interpreted in isolation,
but in the context of the requirements of proof for determining the status of things in
administrative proceedings within the meaning of § 50 et seq. administrative code, and generally
requirements to administrative decisions. As already mentioned above in the
the context of the assessment of the constitutionality of § 145 paragraph. 3, law on State
the service governs procedure in legal services subsidiárním using
Code of administrative procedure, and the procedure according to § 159 paragraph. 1 (b). and)
the law on the civil service, even in matters of adoption leads to employment.
224. the basis for admission to employment and cannot therefore be
the conditions of the material law subjective inconclusive or nothing
Unlimited presumption of public authority, as stated by the applicant. On the contrary,
the decision on admission to employment must be based on factual
State legal evidence, must be properly
justified and, moreover, is subject to judicial review.
225. the applicant in this regard, draws attention to diction section 30 of Act No.
218/2002 Coll., according to which "the services cannot appoint a natural person...,
that cannot be shown to be likely in the service to comply with
the democratic principles of the constitutional order of the Czech Republic and to perform properly
the service ". The actual difference between an infected and at the same time the applicant
the said adjustment is in the absence of the word "proven" in the contested edit.
However, this doesn't change the fact that if the administrative authority will
the conclusion that a particular applicant for admission to the service cannot be
assume that "will be on duty to adhere to the democratic principles
the constitutional order of the Czech Republic and to perform properly the service ", this
the reality show and its conclusions to the duly substantiated.
226. Intepretace of the provisions leading to the conclusion that its content has
be the norm providing that staff can only be taken per person
with the "neprokazatelně" to assume compliance with certain principles, is
in material law impossible.
227. Again, it must be concluded that the contested provisions can be used to unload the constitutionally
conformally and space to derogatory action of the Constitutional Court is not here.
VII./g
The assessment of the constitutionality of § 17 para. 3 sentences of the fourth alleged violation-article. 67
paragraph. 1 of the Constitution
228. the text of the contested provisions:
"[section 17]
[Systemising]
[(3) approved by the Government to Systemize following calendar year. A proposal from the
the Government submits to the Minister of the Interior systemising. The Government is authorized to modify
in the context of the approval of systemising the organizational structure
the staff of the Office.] In the case of the Office of the Council on radio systemize and
television, the Czech Telecommunications Office, energy
regulatory authority, the Office for protection of competition, the Bureau of
protection of personal data, the Czech Statistical Office or the State Office
for nuclear safety, the Government cannot, without the consent of the person who is in
their head, reduce the number of official places referred to in paragraph 1 (b). a) and
(b)) and the volume of funds for salaries referred to in paragraph 1 (b). (c))
systemize for the previous calendar year. "
229. The alleged unconstitutionality of the contested provision according
of the applicant (see point 14) that the seven central authorities of the State
management referred to in it "puts the Government on a par with, if not above the Government", thereby
violates articles. 67 para. 1 of the Constitution, according to which "the Government is the supreme body of the
of executive power ". In the comments of the Government of this claim is countered with a link
the nature of the administrative offices. regulators and request
their independence in the regulations of the European Union (see paragraph 76).
230. The Constitutional Court notes that he is aware of the complexity of this
the issue from the perspective of the history of this type of authorities in the 19th century.
century or even earlier, the evolution of their legislative and judikatorního
solution and of the State in terms of the needs of the modern State and its
international integration. Likewise, it takes into account the development of vocational
discussion on subject position of such institutions in the system of executive power
based on a hierarchical order, and at the same time on the parliamentary
responsibility of the Government as the peak body of executive power to the Chamber of Deputies
the Chamber of Deputies (article 67, paragraph 1, and article 68, paragraph 1, of the Constitution). This case benefitted from
Neither the change of the concept of the law in the field of editing systemising (cf. section 14 and 15
Service Act No. 218/2002 Coll.), which constitutional point of departure
the organisation of the public administration and the civil service in its hověla far
more with regard to the incorporation of the parliamentary element in the solution of this disputed
questions and discussion about these so-called "only by reflecting on. independent administrative
offices, which then took place, in particular, in both chambers of Parliament and in
the Government (cf. Printing 1134, the Chamber of Deputies, III., 2001, election
See also paragraph 236).
231. However, with regard to the linking of the Petite proposal it should be stressed,
the proposal of the President of the Republic in this part is not directed to attack or
calling into question the very existence of the so-called. independent administrative authorities. His
the proposal can be briefly characterized so that only calls into question the provisions of the
§ 17 para. 3 the fourth sentence of the law on civil service, which is in contradiction with the
the constitutional position of the Government to limit its ability to edit questions
systemising as a tool for organization of official authorities in terms of
the number of service jobs, Government employees, jobs introduced and
the volume of funds for salaries (cf. section 17, paragraph 1, of the law on government service).
232. The provisions of section 17 para. 1 of the law on civil service, in the opinion
The Constitutional Court shows that, in the case of individual components of systemising
business offices is a key means by which the Government can
to live up to their responsibilities in a constitutionally enshrined top executive body
power for the proper functioning of the public administration, whose personal Foundation
employees on business areas will be classified employment salary
classes. To do so, in order to dispose of this resource, or to weaken
options (and at the same time the constitutional responsibilities and competences) of the Government on this
the key section, therefore, must be found corresponding constitutional kautely;
You cannot be content with an argument in the plane of podústavního rights
(section 21 and section 28 (1) of the Act of the Czech National Council No. 2/1969 Coll., on establishment of the
ministries and other central bodies of State administration of the Czech Republic,
in the wording of later regulations) led by referring to it, that an adjustment to the so-called.
independent administrative authorities is based on the laws of special,
both later. In the case of pre-emptive use of lex superior
can the settlement of the conflict in the plane of the podústavního rights for using the rules of the lex
specialis and lex posterior to board up in the second row.
233. the Constitutional Court does not question in any way the fact that the regulation of
or manage certain specific areas of public authorities requires independent
the position of the regulators (media, telecommunications regulation, protection of
personal data, regulation of the energy market, statistics, nuclear
security, protection of economic competition). Application of the elements of independence,
that can vary from case to case, however, there must be limited and
must respect the constitutional order. In this way it is possible to refer to the
the need for specific guarantees some constitutional rights (article 1, paragraph 1,
The Constitution), the need to ensure the proper functioning of the State, as well as the need to
implementation of international obligations of the State (article 1, paragraph 2, Article 10a of the Constitution).
234. the Constitutional Court, however, concluded that, in this particular case the intervention of the
to the constitutionally enshrined mechanisms of the relations of the institutions and governance
the Executive was not in place for reasons that will be provided later. Such
penetration into the area of responsibility and competence (which is in the Democratic
the rule of the same thing) parlamentně responsible Government is not necessary even in the
If the requirements arising from the provisions of European Union law, from which the
it otherwise can be inferred on the independence of the regulatory requirement, or other
authorities, IE. above all, effective structural separation of the decision-making
the activities of the administrative bodies of the subjects of child's interests such regulation
and supervision in some specific areas of public administration.
235. The specifics of the position of the mentioned administrative bodies (called independent
administrative offices) must be considered in the context of the overall system-
the constitutional arrangements of the Czech Republic as a parliamentary democracy, in which
the question of powers and competencies within the public authority necessarily weighs in on
parliamentary accountability of the Government for the performance of State administration. To do this, in order to
one of the institutions exempted from this system and the legitimačního string (which
must reverse lead away from the specific act of the public authority to the article. 2 (2). 1
The Constitution), in the opinion of the Constitutional Court is not always necessary, express
the constitutional entrenchment of the relationship of independence, even though the Constitution so in many cases
makes. You can point out for example. on independence or non-anchorage in the
the case of the members of the Chambers of the Parliament of the Czech Republic (article 26), and in particular on the
the adjustment of the relations of State power and local self-government authorities (article 101, paragraph 4, article.
105), to the entrenchment of the position of the judiciary (article 81 and 82), Supreme
Audit Office (article 97) or the Czech National Bank (article 98). (I)
on defining the liability of links in relation to Parliament, the President of the
States and Governments (article 63, paragraph 4, article 65 and article 68, paragraph 1, of the Constitution).
236. With such a definition, however, exist in the system of administrative offices
and related institutions of the public administration, for which the Government bears the
responsibility, as this would be contrary to the very nature of performance
the State administration. Here it should be stressed that the Constitution speaks about
responsibility of the Organization in State law, so it is inextricably
linked with the question of the construction of the powers of the public authorities as
liability in both a positive and a negative sense (see
Clement, J. H. Verantwortung. Tübingen: Mohr Siebeck, 2006, pp. 265 n.,
s. 338 n.). From the constitutionally enshrined principle of democratic rule
the State (article 1, paragraph 1, of the Constitution) implies responsibility for the specific section of the proceedings
(here including an exclusive permission to submit a draft law on the State
the budget pursuant to article. paragraph 42. 1 of the Constitution), which expresses
the competence of the Government in this area make decisions, manage, control or
Guide and match the activities of other elements of the Executive, respectively.
the State administration. The exception may be in the event of a collision of two public
interests only the protection of fundamental rights and freedoms, ensuring the basic functions
the running of the State or the implementation of international commitments are generally
these areas overlap. On the edge in this context is meant to
the attempt to deal with this issue remind express editing in
a separate article. 80A of the Constitution under the Senate proposal to amend the Constitution (printing
1134, the Chamber of Deputies, III. the electoral period, 2001), which had
provide that "[o] rgány Executive independent of the Government can be established and
their scope should be specified only by law ". Finally, it should be beyond the scope of
solved questions added that break that string in the legitimačního point
"the Government" must be compensated for by other legitimačními the reasons for such
exceptions (cast feature requirements, expertise, experience, other
properties, constraints, discretion, tied to the law, the term of Office, etc.).
237. the non-acceptance of the amendment to the Constitution of the said proposal, therefore, cannot be
interpreted as proof of the neústavnosti of independence itself, but only its
certain elements in the otherwise hierarchically organized system of administrative offices
and their executors, or holders of, while the elements of independence,
the adjustment is a reserved Act, which must respect the Division of powers and
power and key functions of Government. It is therefore a fundamental difference in the situation,
When the Government of such a system of controls and organizes with the help of individual
components of the civil service, and systemising when it gets for example. to
conflict with the Czech Statistical Office in organising census or with
Office for the protection of personal data, the Office for the protection of
competition etc. in the performance of their competencies. In certain matters
decision-making-such as eg. express provision for section 28 of Act No. 101/2000
Coll., on the protection of personal data and on amendments to certain laws-are
holders of these offices from the obligation to comply with vyvázáni in their specific
the regulatory scope of the guidelines, resolutions, directives, etc., for it is in the
the area outweighed other public interest (protection of privacy,
of competition, access to information, etc.).
238. From this perspective, the provisions of the fourth sentence of section 17(2). 3 of the law on
in terms of civil service test of constitutionality withstood. The constitutional
Here are the basis for the separation of powers, parliamentary democracy, responsibility
Government control of the State by way of the State administration and the role of the Government in the preparation of
the State budget. Last but not least also the provisions of article. paragraph 79. 2
The Constitution, which explicitly speaks (as opposed to e.g. from article 80, paragraph 2, article.
91 paragraph. 2, article. paragraph 97. 3) just about modifying the legal conditions of State
staff in the ministries and other administrative offices. By this
the constitutional standard is clearly directed toward specific safeguards their status
corresponding to their tasks in the exercise of State administration as a whole,
taking out the constitutional modifications-Unlike the listed exceptions from
the hierarchical system-in no way does not mean that they should be the meaning and
guarantee the proper administration of the civil service in this respect, other than for example. in
such key administrative offices, which operate in areas of the Interior,
Defense, Foreign Affairs, justice or finance. In this respect, it is also
the court system edit this question in paragraph 15 of the original
Service Act No. 218/2002 Coll., subject to law and associated with
the public interest. At the same time that Parliament cannot give up performance
the scope of their control of the Government by its own area of responsibility
cut the decision-making on key issues of the functioning of the civil service by
its decision dependent on the consent of the head of the Administrative Office.
The provision does not hold water even in terms of ever constructed test
rationality. This is because that the interference with constitutionally enshrined Government position is not
based on the protection given to the administrative authorities and institutions against the possibility
interfere with the independence of their decision-making on the law defined
specific issues of their competence. If it is in these areas
(see paragraph 233) acceptable or even desirable in the area of systemising
It indicates an attempt to purge the constitutional powers and at the same time
the parliamentary accountability of the Government.
239. All of this is summed up by the contested provision section 17 para. 3 the fourth sentence
the law on the civil service attempted entrants into the obvious conflict with the
such rules of the functioning of the mechanism of State power in the Czech Republic,
such as article. 2 (2). 1, art. paragraph 42. 1, art. 67 para. 1, art. paragraph 68. 1
and article. paragraph 79. 2 of the Constitution. For the proper functioning of the public administration and the State
services are the responsibility of the Government to the Chamber of Deputies, not to
the Presidents of several central administrative authorities of different types. This
responsibilities it cannot get rid of, or an act of Parliament, even though the Government with him
She agreed. The Constitutional Court therefore proceeded to the annulment of the contested
provisions.
VII./h
The assessment of the constitutionality of § 31 para. 2 and § 165
240. The provisions of § 31 para. 2 and section 165 of the Act on civil service are
under assault, saying that "there are, most likely, in itself
constitutionally the courts, but shall be submitted ... for possible examination
other effects of the procedure namítaného of the above "(sub II/a), that is, the effects of
the alleged improper of the legislative process.
241. by the contested provision, the applicant puts forward To the reservation concerning the
legislatively-technical inaccuracies or drafting deficiencies
("non-exhaustive enumeration of the shortcomings of the law on government service"). In any of the
the contested provisions, however, is not raised a specific plea
the content of the contested constitutional provisions, which the claimant more or less
He admits, for the purpose předestření the alleged defects in the law has to be rather
illustration of the inadequacy of the process leading to the adoption of this law.
242. The Constitutional Court, however, is not to speculate whether they would otherwise
presented by or in any way projednaný the Bill led to a higher
precision engineering or legislatively-lower level
legislatively-technical deficiencies.
243. as regards the content of the contested provisions, the Constitutional Court here
refers to the basis of the review of the above (sub VII/a), in particular
reiterates that "ambiguities in the legislation must delete the case law
General courts. The Constitutional Court has already held that multiple times to this
the area may enter only in the case when at the same time it is a violation of
the constitutional order, and unpredictability, uncertainty and legal
editing extremely interferes with the basic requirements of the law in terms of
the rule of law "(SP. zn. PL. ÚS 56/05), as well as the fact that "the uncertainty
a provision of the law to be considered rozpornou with
the requirement of legal certainty and, therefore, the rule of law (article 1, paragraph 1,
The Constitution), only if the intensity of this uncertainty is excreted
the possibility of fixing its normative content using the usual
the interpretative practices "(SP. zn. PL. ÚS 10/06).
244. As recalled in the report, the Constitutional Court SP. zn. PL. ÚS 33/97 (1)
17.12. 1997 (N 163/9 SbNU 399; 30/1998 Coll.): "the literal interpretation
represents only the initial approach to applied the legal standard. Is
only the starting point for clarification and clarifying its meaning and purpose (to
which is also used by a number of other procedures, as a logical and systematic
interpretation interpretation (e) ratione legis, etc.). "
245. According to the Constitutional Court, the contested provisions do not show such defects,
that their normative content was completely unknowable, and it would have been so given
the reason for the derogation to directly conflict with the article. 1 (1). 1 of the Constitution
defining the Czech Republic as the rule of law.
246. In view of the fact that in connection with the content of the contested provisions
the constitutional question is not levelled any, it didn't deal with the Constitutional Court top
those provisions in more detail. As he recalled the Constitutional Court in the
finding SP. zn. PL. ÚS 7/03 of 18 May. 8.2004 (N 113/34 SbNU 165;
512/2004 Sb.) or in finding SP. zn. PL. ÚS 24/07 of 31 July. 1.2008 (N
26/48 SbNU 303; 88/2008 Coll.), if the applicant does not no reasons
the alleged unconstitutionality of the Act, carry the burden of one claim and
such a proposal is not eligible on merits discussion.
247. The determination of a specific normative content regulations podústavního
their interpretation of the law is the first and foremost thing the authorities with
right here, in particular, administrative authorities, and the courts in the case of the Court of
review. With regard to the position of the Constitutional Court as a judicial body
the protection of constitutionality (article 83 of the Constitution) is not his constitutional role
podústavní right to interpret and clarify its normative content before
to do this, public authorities called upon to accede to the application and interpretation of the
podústavního law. Only then, and in addition, in a situation that would in particular
the interpretation or application of the contested provisions in a manner
unconstitutional, opening space for the possible intervention on the part of
Of the Constitutional Court. Now within the abstract control of the contested provisions
However, any question of the constitutionality of their content (other than the alleged confusion
or inaccuracies) was not raised.
VII./ch
Objections to assessment section 2 (2). 1 (b). a) and b), § 5 para. 1 (b). (g)),
§ 10 para. 1 (b). (b)) § 13 para. 2, § 19 para. 3, § 30 paragraph 2. 2, § 37
paragraph. 1, § 83 para. 1, § 117 paragraph 1. 1, § 185 paragraph 2. 2 (a). c) in words
"and set a salary according to the part of the ninth".
248. the appellant in the preamble of the proposal (cf. section 16) formulates a reservation to
a number of other of the above provisions of the Act on civil servants again with
the fact that "most likely is not itself constitutionally
the courts "and represent a non-exhaustive enumeration of the shortcomings of the law on
Government service. Having regard to the fact that the subject matter of the proceedings before the Constitutional Court
is defined by the design, the Constitutional Court could not ústavností above
rekapitulovaných the provisions of the deal because of the document instituting the proceedings
It is clear that the appellant does not require the repeal of these provisions.
VIII.
The conclusion of the
249. For the above reasons, the Constitutional Court upheld the proposal to repeal section
Article 17(1). 3 sentences of the fourth Act No. 234/2014 Coll. on State service, as
came to the conclusion about the violation of this provision with the Constitution (section 239).
250. In the rest of the proposal rejected, for he found that despite the above
rekapitulované defects in the legislative process the repeal of law No.
234/2014 Coll. on civil service as a whole has hit a constitutionally protected
values predictability of law and legal certainty over the defects in the
the legislative process, respectively, than the existence of the law in this process
adopted. At the same time, concluded that the provisions of section 1 (1). 2, section 5
paragraph. 2, § 11 (1) 3, § 14 para. 2, article 15, paragraph 2. 3, § 16, § 21, art. 3,
section 22, § 31 para. 2, section 78 (a). (c)), § 85 para. 5, § 104 paragraph. 3, § 145
paragraph. 3, § 165, 172, 173, 178, § 184 para. 2 and section 189 of the Act No. 234/2014
Coll. on State service, not in terms of their content with the constitutional
policy in the United States in the conflict.
251. However, the Constitutional Court submitted the proposal with the exception of the application for revocation
§ 17 para. 3 sentences of the fourth has not complied with, it is the contents of the preamble to the
clearly, the finding does not constitute an obstacle to the rei iudicatae in relation to the
the possible future review of the various provisions of the Act on State
the service, of course, with the exception of the constitutionality of the legislative process, to
which is already in the Constitutional Court does not intend to return. It must be seen that now
conducted a review of the law on the civil service was made in a situation where
only became part of the applicable law, and based on a proposal aimed at
certain aspects of the legislation, and it is therefore difficult and excess options
The Constitutional Court completely think, how will it be in the future
applied, and what practical shortcomings may yet show them and
that will not be possible to bridge the constitutionally Conformal interpretation. This finding
therefore does not have the ambition to completely close off possible future discourse over ústavností
one of the specific provisions of the law on government service.
The President of the Constitutional Court:
JUDr. Rychetský in r.
Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,
as amended, a decision of the plenary, the judges adopted a
Jaroslav Norman F, Pavel Rychetský, Vladimir Sladecek, Radovan Suchánek,
Catherine Simackova, Vojtěch Prince and David Collier and its justification
judge Jan Filip and Jiří Zemánek.
