In The Matter Of An Application For Annulment Of The Decree About The Rent Of The Apartment

Original Language Title: ve věci návrhu na zrušení vyhlášky o nájemném z bytu

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=49540&nr=231~2F2000~20Sb.&ft=txt

231/2000 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 21 February 2006. June 2000 in plenary on the draft group

Senators on the cancellation of the Finance Ministry no 176/1993 Coll., on the

rent of the apartment and pay for the implementation that is provided with the use of the apartment, in the

as amended, as follows:



Decree of the Ministry of Finance No. 176/1993 Coll., on rent from a dwelling and

payment for the implementation provided with the use of the apartment, as amended

regulations, is hereby repealed on 31 December. 12.2001.



Justification



A group of 14 senators Senate of the Parliament of the Czech Republic lodged with reference

on the article. 87 para. 1 (b). (b)) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution")

in conjunction with § 64 para. 2 (a). b) Act No. 182/1993 Coll., on the constitutional

the Court, the application for annulment of Decree of the Ministry of Finance No. 176/1993 Coll.

about the rent of the apartment and pay for the implementation that is provided with the use of the apartment, in the

as amended, which States that the Ministry of finance published by

17 May. June 1993 a decree about the rent of the apartment and any remuneration for the performance of

provided with the use of the dwelling (hereinafter referred to as "rent of the apartment"). On 29 April 2006.

June 1993 took this Decree of validity of publications in the collection of laws

under no 176/1993 Coll. on January 1. July 1993 came into effect the provisions of §

2 (2). 1 (b). (c)), para. 2 and 3, § 6 and § 16 para. 1 (b). (b)) as well as section

8 and 10 to adjust the rent according to § 6 and § 16 para. 1 (b). (b)).

the provisions of this Ordinance became effective on 1 January 2004. January 1994. To

date was Decree No. 176/1993 Coll. directly amended four

amendments, decrees of the Ministry of Finance No. 30/1995 Coll. No.

274/1995, no. 86/1997 Coll. and no 41/1999 Coll.



Decree of the Ministry of Finance No. 176/1993 Coll. was released on the basis of the

legal authorization contained in the provisions of § 20 para. 1 (b). and) Act

No. 526/1990 Coll., on prices.



The provisions of section 20 of Act No. 526/1990 Coll., authorizing the Ministry of finance

to issue implementing provisions, this law was deleted Amendment

-Act No. 135/1994 Coll., amending and supplementing Act of the Czech

the National Council No. 266/1991 Coll., on the scope of the authorities of the Czech Republic

prices, and amending Act No. 526/1990 Coll., on prices.



Act No. 133/1994 Coll., with effect from 29. June 1994 canceled the section 20 of the Act

No. 526/1990 Coll., and that without the explicit determination of another provision in the legal

the order of the United States, on the basis of which they were issued and revised

new or no longer valid and effective implementing legislation, thus the Decree No.

176/1993 Coll., issued on the basis of the provisions of section 20 of Act No.

526/1990 Coll., Act No. 135/1994 Coll., in its transitional provisions

the issue of abrogation of laws explicitly does not address secondary. This

legislation may result in a logical interpretation, that the abolition of

standards of higher legal force occurs to the repeal of the standards below legal force.



The transition of the authorizing provisions to issue generally binding legal

legislation in the area of prices could be inferred from the provisions of the Decree

The Ministry of Finance No. 30/1995 Coll., amending and supplementing the Ordinance

No 176/1993 Coll., which refer to the enabling provisions of § 2 (2). 2

Act No. 266/1991 Authorizing the provision of section 2 (2). 2 of law No.

265/1991 Coll. was amended by Act No. 135/1994 Coll., due to

the fact that this is a mandate that is vague and expressly

It does not address the transition of Decree No. 176/1993 Coll. under the regime of law No. 266/1991

Coll., cannot be inferred from this mandate automatic downshift Decree

No 176/1993 Coll. under the legal regime of law No. 266/1991. Last but not least

the series is to be noted that, from content point of view, this is a

the authorisation which is not in substance the same as the zmocňujícím to the provisions of § 20

Act No. 526/1990 Coll.



Enabling the provision of section 2 (2). 2 Act No. 266/1991 Coll., in the sense of

changes made to the law No. 135/1994 Coll., does not fulfil the basic conditions

the rule of law and legal certainty, since such authorisation is General, and

flat-rate, which is in direct conflict with the provisions of article 79 paragraph 2. 3

Of the Constitution. Article 79 paragraph 2. 3 of the Constitution is to be interpreted restrictively,

which means that the issue of secondary legislation must

to be specific, unambiguous and clear. For this reason, it is unconstitutional and

Decree No. 176/1993 Coll., as it does not have a basis in an express statutory

the mandate. This is contrary to the principle (which repeatedly pointed out and

The Constitutional Court), that obligation may be established only by law, in

the limits and in the case of secondary legislation only on the basis of

explicit legal authorization.



Law No. 266/1991 Coll., as amended, governs only the scope of the

designated authorities of the Czech Republic in the area of prices and exhaustively sets out the

range of social relations in which these authorities shall exercise its

powers. Law No. 266/1991 Coll., as amended by Act No. 135/1994 Coll.

only instantiates the scope of authorities in the field of prices, however, does not provide for

the competence of these organs in the area of prices.



In the light of the above, it is possible the current state

interpret in the following ways:



1. Act No. 135/1994 Coll. in silence derogoval Decree No. 176/1993 Coll.

each amendment to the decree in the future is ineffective. When

This interpretation, it should be noted that for the purposes of legal certainty, it is

the derogatory clause needs to set clear legal

regulations have been abolished, or



2. Act No. 135/1994 Coll. podřadil Decree No. 176/1993 under Act No.

265/1991 Coll., in this case, however, you can argue that this downshift

There has been legislatively defective and institutional manner, or



3. Act No. 135/1994 Coll. podřadil under law No. 266/1991 only

the Decree, which took effect after the effectiveness of Act No. 135/1994 Coll.

(for example, Decree No. 30/1995 Coll., Decree No 275/1995 Coll., Decree No.

86/1997 Coll., Decree No. 41/1999 Coll.).



From the formal legal point of view, therefore, it is not clear whether the Decree No.

176/1993 Coll. legally effective and to what extent. A group of senators is of the

the legal opinion that the unconstitutionality of Decree No. 176/1993 Coll. is apparent already from the

its relationship to the law. For that reason, the Constitutional Court should this

a decree to cancel the (appropriately the provisions of § 68, paragraph 2, of Act No. 182/1993

SB.).



Decree of the Ministry of Finance No. 176/1993 Coll. lays down the method of determining

the maximum amount of apartment rent and payment for the implementation that is provided with

the use of the apartment and the method of negotiating and paying the rent and price of services between

the landlord and the tenant, in section 2 defines the flats, which are not covered by the

Thus, the entire group of apartments to rent-controlled apartments, and without regulation

rent expands, and also provides a way to specify the maximum amount of

apartment rent and payment for the implementation that is provided with the use of the apartment for

rent-controlled apartments. Within this group of apartments distinguishes flats with

the maximum base rent and flats with factually usměrňovaným rent.



The annex to Decree No. 176/1993 Coll. lays down the maximum base rent and

the base rent and usměrňované, in substance, the maximum rent for facilities

apartment.



Decree of the Ministry of Finance No. 176/1993 Coll., as amended

regulations, is in a material (material) terms in conflict with

individual, listed below, the provisions of the Charter of fundamental rights and

freedoms ("the Charter").



This contradiction, the appellants State for the following reasons:



And Decree No. 176)/1993 Coll. violates



-the general principle of equality bodies (in compliance with the General

the principle of equality of property rights), since according to the article. 3 (2). 1

Of the Charter of fundamental rights and freedom with the guarantee to all, without distinction of sex,

race, colour, language, faith and religion, political or other

opinion, national or social origin, membership of a national

or ethnic minority, property, birth or other status. "



-the general principle of equality of property rights, as referred to in article. 11 (1)

1 of the Charter, "everyone has the right to own property. The right of ownership of all

owners has the same statutory content and protection. Inheritance is guaranteed. "



In General, the content of the title is, in particular, case

to hold, to have with her, taking her and get out of it. The provisions of the

Law No. 526/1990 Coll., as amended, cannot be

interpret as violating principles of equality of property rights,

Although the owners of the limits when the absolute performance of property rights. State

through Act No. 526/1990 Coll., inter alia, seeks to prevent

abuse of position of subjects with a monopoly, the dominant or exclusive

position on the market, and thus practically fills the provisions of article. 11 (1) 3

Of the Charter, which reads as follows: "the ownership agrees. Must not be misused to the detriment of

the rights of others, or in violation of the law protected the general interests. His

the performance may not harm human health, nature and the environment over

rate provided by law. "



Goods for which price control is applied, is registered in the list,

which shall be published in a journal. On the basis of article 10 of law No.

526/1990 Coll. classified decision to a list of goods with regulated

prices the prices of the authorities. By the inclusion of the price of the rent to the list

goods with regulated prices, applicable to natural and legal persons,


in the territory of the country engaged in the sale and purchase of goods specified therein,

In addition to the goods intended for export, the State declared its interest in protecting

tenant flats against abuse by the owners-

landlords.



Decree No. 176/1993 Coll., however, only protects a group of tenants in apartments with

controlled rent. Determined by the difference and inequality between owners

Home Ocean apartments are apartments with controlled rent, and

the owners of houses with apartments, in which the company will rent agreement

of the parties (landlord-tenant). It also establishes the difference and

inequality between tenants of apartments in houses with ocean flats, which are

apartments with controlled rent, and tenants of apartments in houses with apartments, in which

rent the new agreement of the parties. In both cases, so

going on the basis of distinguishing entities according to the asset.



Decree No. 176/1993 Coll. is not apply to apartments housing cooperatives

established after 1958, flats, which is running a diplomatic service,

apartments, if the tenant is a person who does not have a registered office or permanent residence on the territory of the

The United States, and does not apply to rent controls on apartments and houses

built without involving public funds, for which it was issued

approval after 30. June 1993, flats, which are negotiated by the

the lease with a new tenant; except in the case of legal transition

of the lease.



Itself, the internal structure of Decree No. 176/1993 Coll. divided a group of bytes with

Regulation of rents on apartments, which are provided for the maximum basic

rent, as well as flats, for which it is provided, in substance, usměrňované rent

(apartments, whose construction or reconstruction was allowed after 30 June 1993

and which they help to finance public funds, or that has been

permitted before that date and which funding since 1995

public funds involved). Decree No. 176/1993 Coll. does so

unjustified differences between the apartments and their normative

the provisions thus makes the differences in a group of owners of flats in a group

the tenants. Allows the landlord of the apartment, not covered by the regulation

rents, to enter into a lease contract on the basis of free price formation

the landlord of the apartment, which is covered by rent controls, undertakes to

comply with the maximum price of the rent provided for by this regulation. In

ultimately favors even tenants in flats with unregulated

the rents.



The Constitutional Court of the CZECH REPUBLIC has established its decision-making activities on case-law

The Constitutional Court of Czechoslovakia, who in his award of 8. October 1992, SP. zn. PL.

TC 22/92 (No. 11 of the collection of the resolutions and the findings of the Constitutional Court of CZECHOSLOVAKIA)

provided: "the equality of citizens before the law was not perceived as abstract

category, but has always been attributed to specific legal standard, understood in the

ratio between the different actors, etc. If it was made from the equality

the law is every individual shall be entitled to a State within the limits of its possibilities

removed all de facto inequality. This design, however, only applies

When considering equality as an absolute. Equality relative to her

have in mind all the modern Constitution only requires removal

unjustified differences. " According to the plaintiffs in the case of the determination of the radius of

the apartments, which are covered by rent controls, it is the determination of the

unjustified differences between individual owners and tenants.

The principle of equality is unjustifiably violated, and this Decree.

176/1993 Coll. finds himself in direct conflict with the cited constitutional

the Court.



(B)) Decree No 176/1993 Coll. violates a provision of the Charter on the restriction

Title: according to the article. 11 (1) 4 of the Charter "expropriation or

the forced restriction of property rights can be in the public interest, and that the

under the law, and for compensation. " If there is a specific group of goods and

services for which it is necessary for the public interest price regulation and

the following statutory regulated price is less than the amount of the usual prices

(IE. a summary of the costs of the acquisition, processing and circulation of goods, reasonable

profit and the tax or other benefits, compulsory paid State) and the State

the difference between the price and the market price usual regulated by law does not replace, can be

to perceive such a restriction of property rights (regulation of prices of rent) as

infringement of article 81(1). 11 (1) 4 of the Charter.



As is apparent from the official analysis of the Ministry of regional development,

regulated prices of rents are below the cost of normal, apparently, with the

This difference does not replace the State. On the basis of the provisions of Decree No.

176/1993 Coll. experiencing forced restrictions on the exercise of ownership rights in

a group of owners of rent-controlled apartments, however, is not satisfied

the condition of the existence of public interest. Can't agree more with the situation

created by the current legislation, which is to regulate the price of rent

promoted to the public interest. On the contrary, price regulation of rents is in violation of the

with the public interest, because it does not allow the creation of new and maintenance

the existing housing stock (a consequence of the reduction of the housing stock),

demotivates entities in the business of rental housing, makes it difficult to

labour mobility, prevents the development of functioning market. In

last but not least neadresně favours the rent controls randomly

a selected group of citizens, regardless of their social circumstances. The protection of the

ownership, as constitutionally guaranteed and protected the public interest, is

stronger than an individual's entitlement to housing, or the interest of the State to

unspecified reasonable social situation of citizens-tenants. About this

the fact, for example, by the decision of the Parliament of the Czech Republic from

in 1995, when this legislative authority did not include the right to housing in the

categories of fundamental rights and freedoms. In the case of a viable social solutions

the situation of citizens-tenants become the determination of rent controls trying to

bring your duty and responsibility as provided for his article. 30 paragraph 2. 2

Of the Charter, to the detriment of owners of rent-controlled apartments. State

through regulation of rent the tenant and unduly favors

putting his individual interest above the interest of the owner-lessor.

It does so by limiting the right of ownership (in terms of rent an apartment for the price

the usual) in the absence of public interest without compensation. This is, therefore,

infringement of the principle of proportionality, and the prohibition of arbitrariness, which is, according to

settled case-law of the European Court of human rights and by the European

Convention for the protection of human rights and fundamental freedoms, one of the

fundamental rights which national regulations must guarantee. It is therefore

Obviously, this legislation is also infringed the principle

the proportionality of the interference pursuant to article. 4 (4). 4 of the Charter: "when using the

the provisions on limits of fundamental rights and freedoms must be preserved

the essence and the meaning of. Such restrictions must not be abused for other

purposes for which it was established. "



C) Decree No 176/1993 Coll., moreover, violates a provision of the freedom of

business. According to the article. 26 paragraph 2. 1 of the Charter, "everyone has the right to freedom of

choice of occupation and preparation for it, as well as the right to do business and to operate

other economic activities. " Decree No. 176/1993 Coll. arbitrarily and

unduly restricts the right to do business in the area of rental housing

and in addition, forcing the owners of rental apartments in violation of generally binding

legislation in the area of housing, it is not possible to ensure the maintenance of flats in

the statutory State because of lack of funds.

Some rights may be relied on only on the basis of the law and in its

the limits. According to the article. 26 paragraph 2. 2 "the law may lay down the conditions and limitations

for the exercise of certain professions or activities. ", but at the same time,

According to the article. 4 (4). 3 of the Charter of the "Statutory restrictions on fundamental rights and freedoms

must apply equally to all cases that meet the specified

conditions. "



The appellants raise the unconstitutionality of Decree No. 176/1993 Coll.

neodůvodněném violation of the principle of freedom of business according to article 26, paragraph 2. 1

Of the Charter and of the equality bodies provided for in article 4, paragraph 2. 3 of the Charter, to limit the

the possibility of free enterprise in the field of real estate owners

rent-controlled apartments. The Decree puts these owners against

a group of owners of apartments, which are not covered by rent controls.



D) Decree No. 176/1993 Coll., on the basis of the provisions of section 20 of the Act

No. 526/1990 Coll. lays down the method of determining the maximum amount of rent from

the apartment and the remuneration for the performance of the assistance provided with the use of the apartment and the method of negotiation

and paying the rent and price of services between the landlord and the tenant. In doing so,

However, it does not respect the provisions of Act No. 526/1990 Coll., which in section 2 (2).

3 the first sentence lays down that "the seller must not abuse their

the economic situation, in order to obtain undue economic

benefit of the sale at an agreed price that includes the cost of unauthorized or

disproportionate profit. " At the same time, however, also apply the provisions of the second sentence, in accordance with

that "the buyer shall not abuse its economic position,

in order to obtain undue economic advantage by buying at an agreed price

significantly below those of the eligible costs. "



Even a mere contradiction of Decree No. 176/1993 Coll., the Act is sufficient

the reason for the annulment of the decision of the podzákonného Act

Of the Constitutional Court.



Given all the above, the Group of Senators proposed to


The Constitutional Court has issued a finding, which said that the Decree of the Ministry of

Finance no 176/1993 Coll., on rent from the apartment and pay for performance

provided with the use of the apartment, as amended, infringes

the provisions of article 3, paragraph 3. 1, article 4, paragraph 2. 1, 2, 3 and 4, article 11

paragraph. 1 and 4, article 26, paragraph 2. 1 and article 30, paragraph 1. 2 of the Charter, and

because of her day, which in the award specifies deleted.



The Ministry of finance in its observations that do not agree with the proposal

a group of senators, and suggests it be rejected, with reasons to

the rejection in the following facts sees. To the objection that the

the contested Decree infringes Article. 3 (2). 1 of the Charter, the Ministry of finance

notes that, under section 5 (3). 5 Act No. 526/1990 Coll., valid state

regulated prices for all the sellers and buyers of the specified type

of the goods. If the nature of the goods designated by the hiring of such a dwelling that is not

Decree No. 176/1993 Coll. of the price controls, exempted pays the price

Regulation for all landlord and tenant of such flats. State

discriminates in favour of a particular group of landlords bytes follow

criteria and a group of landlords or package does not disfavour.



The Ministry of Finance has considered that the essence of price regulation is always

certain restrictions on the State of the specified group of sellers and buyers in the right

free to negotiate the price of their goods. The right to free negotiation of prices is not

a fundamental right or freedom within the meaning of the Charter. State may, pursuant to § 1

paragraph. 6 of Act No. 526/1990 Coll. limit this right in case of emergency

the market effects of the restriction of competition, or if it requires

extraordinary market situation. The Ministry of finance is of the opinion that, given the

its unique nature of rental housing and the related specific

the protection of the tenancy provisions of civil law meets the market rental

housing in 1989, both the conditions for price regulation. Special market

of the situation result from the legal status under which the rent in closed

rental contracts did not constitute economically fair price provided by

services, while there was the possibility of a unilateral increase of the rent

the landlord, as the contract can be changed only by agreement, whose

voluntary achievement could not be expect from the tenant.



The State allowed landlords to raise the rent contracts in force on

economically reasonable level and at the same time protect the tenant before-for most

of them financially unbearable-a horse by increasing rents, said section

paragraph 696. 1 of the civil code according to the amendment made by Act No.

513/1991 Coll. unilateral rent increases, but on the basis of

a special legal regulation.



The Ministry of finance considered that it was necessary that the maximum increase in the

rent the state regulated, since the special nature of the rental housing

associated with the lack of affordable appropriate menu does not allow tenants

take advantage of competition to negotiate the price of the corresponding

the quality of the service provided and its purchasing power. On the contrary, the landlord

could easily abuse its economic status to the

the tenants demanded a disproportionate price. The rent is doing so within the meaning of § 877

of the civil code. Price regulation generally does not specify a particular price,

which shall be negotiated, merely lays down the rules and restrictions for their

the negotiation. The same goes for rent, for which the decree in the specified

cases, specifies the maximum amount of or materially usměrňovaného rent

lays down the conditions for negotiating the prices, which include a binding procedure

When creating prices or in its calculation. Rent controls on apartments

under the price regulation establishes the price of the goods of a particular kind

regardless of who is the seller or the buyer. Therefore, you cannot

talk about discrimination against certain population groups within the meaning of article 87(1). 4 (4). 1

Of the Charter. Act No. 526/1990 Coll. allows you to regulate the prices of the State where the

There has been a threat to the market effects of the restriction of competition or where it

requires particular market situation. From the above analysis of the State of the market

rental housing in 1989 shows that the State found in the rental

housing the existence of both conditions for the application of price regulation. Price

In contrast, the regulation would not apply where the lessor to the lessee could

free to agree in advance on a mutually agreeable rents (new

the rental contract), or where there was no reason to protect the tenant before

"by increasing the rent (" foreign "legal and natural persons).

In addition to the determination of the maximum rent in cases where the tenant has no

the ability to influence the price of the service provided to him, he was elected a different

How to price regulation-substantive streamlining-where the tenant either has

the option exact control over the cost of housing (Section 6a of the Ordinance), or

new lease contracts in apartments built with the participation of the public

resources (section 6 of the Ordinance), where the preservation of price regulation takes into account the

support of the State about tenancy housing. Similar price regulation applies to flats

owned by housing cooperatives built in the former cooperative housing

construction. According to the article. 4 (4). 2 of the Charter, "the limits of fundamental rights and freedoms

may be under the conditions laid down by the Charter modified only by law. " (I)

When the right to freely negotiate the price of the goods is not a fundamental right or freedom

within the meaning of the Charter, its limitations regulated by law and within the limits of the law

is regulated by a decree.



According to § 5 para. 5 Act No. 526/1990 Coll. applies price regulation for

all sellers and buyers of the specified item type. If the specified

a good rental apartment as defined by Decree No. 176/1993 Coll. applies its

provisions for all landlord and tenant of such flats. The adjustment is

in full compliance with article 4(1). 4 (4). 3 of the Charter.



To the application of article 4(1). 4 (4). 4 of the Charter of the Ministry of finance notes that

There is no right to free negotiation of prices is a fundamental right or freedom in

the meaning of the Charter. Still, the State regulates the award only where necessary, and

respects the meaning and essence of such rights, which may be controlled

the price of prejudice. The State has an interest in the low-rent, but it allows the tenants

gradually overcome the difference amount of rent existing at the time of signature of the

the rental contract and the amount of rent for newly agreed contracts. Prevents

the migration of neglect of the housing stock only to the lessee. The State has an interest in

on a fair rent, therefore, allow landlords a unilateral

a change of the Treaty in their favour. State your competency does not abuse or in

for your benefit, or the benefit of any of the parties concerned.



To the objection that the Decree breaches article. 11 (1) 1, 3 and 4

Of the Charter, the Ministry of finance notes that price regulation does not prevent

to own property or whether the difference between the privileges of

various forms of ownership. Does not interfere with the right to inherit property.

Rent controls in no way impair the privilege object

ownership of the hold, enjoy and benefit from its fruits and benefits. Regulation of

the rent is not limited nor the ability of the owner to the subject of your

ownership of the handle (it may sell, rent, etc.), but it is

limited by the established rules in negotiating prices. The price is, however, authority

When you regulate prices limited the conditions laid down in § 1 (1). 6 of the Act on

prices. This means that the procedure of State secures compliance with

the provisions of article. 11 (1) 3 of the Charter, according to which property may be

misused to the detriment of the rights of others, or in violation of the law protected

interests.



Voucher for protection only for certain groups of tenants is not according to the Ministry of

the Treasury also justified. To regulate the rent price control is used

as a way of determining the maximum prices, so in a way the factual

streamlining. It is not true that the regulation is indicative only

tenants. With the exception of marginal cases bytes of service management

diplomatic corps or flats used by legal and natural persons,

which have their registered office or permanent residence outside the territory of the Czech Republic, and

rents, which both parties in equal position as the price of free

agree (a new rental contract) price regulation in kind

guiding prices for flats referred to in section 6a of the Ordinance, for the apartments of the newly

built with the use of public funds for housing cooperatives, apartments

for that is the regulation of the way factually usměrňované rent adjusted

a separate piece of legislation. In both recent cases is the reason

price regulation of the participation of the public funds for the acquisition of houses with apartments in

the ownership of persons other than the State and the ability of tenants of a specific amount

the rent. The appellants ' claim for the protection of some of the

groups of tenants is not true according to the Ministry of finance.



To the objection that the Ordinance violates equal rights owners, Ministry of

Finance refers to the finding of the Constitutional Court of Czechoslovakia, which dealt with

the concept of the equality of citizens before the law, that was not as

an abstract category, but as a relative equality, which requires

only the Elimination of unjustified differences (decision No 11/1992 Collection

resolutions and findings of the Constitutional Court of CZECHOSLOVAKIA). The Ministry of finance points out

also on a series of decisions of the Constitutional Court of the CZECH REPUBLIC (e.g. award of 17. 2.

1999, SP. zn. PL. ÚS 16/98, published under no. 68/1999 Coll., the finding of 24.

5.1994, SP. zn. PL. ÚS 16/93 declared under no 131/1994 Coll., the finding of the


17.5. 1994, SP. zn. PL. ÚS 36/93 declared under no 132/1994 Coll., the finding of the

28.2. 1996, SP. zn. PL. ÚS 9/95 promulgated under no. 107/1996 Coll.).

Context of the proposal also has the Constitutional Court of 22.

3.1994, SP. zn. PL. ÚS 38/93 declared under no 86/1994 Coll. Price

Regulation is not expropriation or compulsory restriction of property rights

According to the § 123 paragraph. 1 of the civil code, under which the owner of the

entitled to a refund. Otherwise, the price regulation lacked

any sense and the State should have the freedom to public interest in a balanced

the market, guaranteeing a fair negotiation of prices, to protect.



As regards article. 26 paragraph 2. 1 of the Charter, the Ministry of finance is of the opinion that the

price regulation does not prevent anyone doing business or engage in other

economic activity. Everyone has the opportunity to decide whether, under

the conditions laid down by the State will be in a certain area of business. Persons

doing business in this area so they can decide on their knowledge of the facts

For more activities. Rent controls shall not apply to newly concluded

Therefore, the lease agreement does not prevent new housing construction.



In the opinion of the Ministry of finance to prevent the possibility of requesting the

tenants in a non-market environment any rent from the apartment, which is its

the basic living need, the question is not the obligation of the State to help in the

material need within the meaning of article 87(1). 30 paragraph 2. 2 of the Charter. Cannot reasonably be required

from the State to the possibilities for abuse of the economic situation did not prevent and

the results of this behaviour in addition saturoval from State resources.

Reduced to poverty, housing stock and, where the amount of the rent in the past

the tenant of the apartment of his own. He allowed the State to keep their expenditure on

housing edited by gradually so that it did not mean the financial

collapse. At the same time allow the landlord to have the legal right to rent

higher than was originally agreed in the rental lease agreement. Decree

The Ministry of Finance No. 176/1993 Coll., as amended,

allows a gradual increase of rent in a lease concluded previously

the treaties, i.e.. where the conditions are met for the provisions of section 1 of the

paragraph. 6 of the Act on prices. In the newly concluded contracts of lease rent

the apartment is not regulated there. From the arguments set out in the individual provisions

articles of the Charter, therefore, in the opinion of the Ministry of finance shows that restrictions

rights for the negotiation of prices is done in accordance with the constitutional order, IE. in

accordance with the law, on the basis of the explicit mandate and in its

the limits. The rent of the flats price regulation are not being violated in the design

These articles of the Charter.



According to the article. paragraph 79. 3 of the Constitution, ministries, other administrative authorities and

authorities shall be entitled to on the basis and within the limits of the law to issue

the legislation, if they are authorised to do so by law.



On the basis of the authorization referred to in article 20 (2). 2 of law No.

526/1990 Coll., on prices, was issued Decree No. 176/1993 Coll., on the

rent of the apartment and any remuneration for the performance with the use of the apartment, provided that

allow the lessor unilaterally request the lessees maximum or

usměrňované rent, in substance, in the sense of § 5 and 6 of Act No. 526/1990 Coll.

Decree No. 176/1993 is legislation for regulating the level of prices.

Act No. 526/1990 Coll., on prices, in section 1 (1). 7 and 8 provide that the Central

State administration bodies authorized to regulate prices under this Act (hereinafter

"the price authorities") are determined by specific provisions, and that the specific

the rules determine which other authorities (hereinafter referred to as "local authorities") are

authorized to regulate prices in the manner prescribed by law. " In such a

the special law is law No. 266/1991 Coll., on the scope of the authorities of the United

States in the field of prices, as amended by laws No. 135/1994 Coll., and no. 151/1997

SB. this Act in section 2 (2). 2 (a). (b)) empowers the Ministry of

Treasury to issue legislation for regulation and negotiation of prices.



Decree No. 176/1993 SB. in doing so does not exceed the limits of the Act No. 526/1990

Coll. and by the Act only permitted lists ways to price regulation, was released

on the basis of the law (No 266/1991 Coll.) and within the limits of the law (no 526/1990 Coll.

see § 1 (1). 5). From the above, according to the Ministry of finance is clear that

Decree No. 176/1993 Coll., and her novels have been released in accordance with the

powers of the Ministry of Finance of the modified Act No. 266/1991.

Because the Ordinance at the same time allows municipalities to choose the maximum amount of rates,

It was necessary to give her novels just referring to law No. 266/1991

Coll., not with reference to the Act No. 526/1990 Coll., Attacked the lack of

the provisions of § 20 para. 1 (b). and) Act No. 526/1990 Coll., which was

cancelled for reasons of redundancy, when powers of the individual price

authorities is in accordance with the provisions of section 1 (1). 7 and 8 of Act No. 526/1990

SB. contained in the Special Act, and that in law No 266/1991 Coll.,

as amended, it was replaced by the provisions of Act No. 266/1991.

The Ministry of Finance has considered that the specific nature of the price regulation

requiring operative intervention of the State in the market affected by limiting

competition is not compatible with a detailed definition of the circumstances in

where the decision of a public body must move. Price regulation

is so differentiated areas that detailed legislation limits should

undoubtedly, the past with the desired effect-fast and efficient intervention

State on an outstanding market. The Ministry of finance for the future

assumes the cancellation of formal regulation of the apartment rent and has already in the past

the year began with intense preparation of the new law on rent of the apartment.

Assess the results sent to the factual design intent

the law, which involved both public authorities and the representatives of the

landlords and tenants, and the substantive intent has adjusted accordingly.

You can expect the cancellation of formal regulation of the apartment rent during the year

2002.



The Ministry of labour and Social Affairs has made a proposal for a group of Senators

observations, and especially to the social aspect of rent controls and to

some general legal issues.



In part II. the proposal of the Group of senators, concludes that the abolition of the law,

that contained the original mandate to issue Decree No. 176/1993 Coll.

There has been automatically cancelled standards lower legal force and that new

the mandate contained in Act No. 135/1994 Coll. is vague, and therefore in the

contrary to the article. paragraph 79. 3 of the Constitution.



To these allegations, the Ministry of labour and Social Affairs States that if

podzákonný legislation was properly issued in accordance with law, he became a

part of the legal order of the Czech Republic, and this component is up to his

the express repeal. If at the time of its release podzákonný legal

prescription issued in conformity with the requirements of article. paragraph 79. 3 of the Constitution, then the reason

for its dissolution (except the express abolition of factual or other reasons

other legislation) could be the only non-compliance with the Act (IE.

exceeding the "limit" of the Act) as a result of changes in laws, not

that authorization is contained in a different Act than was originally (important is

the scope of the mandate, not the "location"; in a formal conclusion about

the importance of the "location" mandate would then for example. had to be issued new

the decree in the case that changes the competencies of the ministries, for despite

an express provision that a certain thing belong now to the scope of another

the Ministry, would mandate was to other Ministry). In the present case

It should be noted that there has been no cancellation of standards greater legal force,

Since Act No. 526/1990 Coll. canceled was not and still, while still

contains those principles from which Decree No. 176/1993 Coll. is based on.



As regards the formulation of the mandate, it is, in the opinion of the Ministry of labour and

Social Affairs of the legislature, whether the authorization is completely specific or

more general; from the wording of section 2 (2). 2 Act No. 266/1991 Coll., as amended by law

No 135/1994 Coll., it follows that the Finance Ministry to issue a legal

provisions, and for the regulation and negotiation of prices, the basic adjustment

Regulation and price negotiation is contained in the Act (Act No. 526/1990 Coll.

about the prices). From this it can be inferred that the authorization to issue the decree is given and

that "the limits of the law" are made in particular by Act No. 526/1990 Coll., which

It contains the fundamental principles, of which the Decree No. 176/1993 Coll. is based on. To

"the limits of law," the Ministry of labour and Social Affairs notes that according to

his opinion, those limits may not be given by the law, which contains

the issue of the implementing legislation, but that those limits

the law is to be applied to other laws; the decree must be in

accordance with the law, on the basis of which it is issued but also with other

law-the concept of "the limits of the law" cannot therefore be interpreted purely grammatically (i.e..

within the limits of one Act), but the point of the article. paragraph 79. 3 of the Constitution, compliance

podzákonného regulation laws (i.e. with all laws). In this

It should be also taken into account the provisions of § 696 para. 1

of the civil code, according to which the method of calculation of the rent, payments for

provided with the use of the apartment, the way their pay, as well as

cases in which the landlord is entitled to unilaterally increase

rent, pay for performance that is provided with the use of the apartment and change other

terms and conditions of the rental agreement, established a special legal regulation. This


special legislation is Decree No. 176/1993 Coll., which

questions. Also, in the opinion of the Ministry of labour and social

things you cannot identify with the thesis that the authorisation to issue podzákonného prescription

must be present in that Act, which contains the substance of the

Edit-this conclusion cannot be made or from the literal wording of article. paragraph 79. 3

The Constitution (here talks about performing a specific Act, but

the issue of legislation on the basis of the law, to do so in the law

mandate); It is also common practice that one decree is issued to

the basis of the mandate contained in several different laws, therefore one

the Decree carried out several laws. So is the case with Regulation No. 179/1993

Coll., which binds to the two laws, i.e.. to Act No. 526/1990 Coll.

Act No. 266/1991.



In part III. the proposal of the Group of Senators it is stated that the principle of the regulation of

rent violates the general principle of equality bodies (article 3 of the Charter) and

the principle of equality of ownership (article 11 of the Charter), but

He admits that Act No. 526/1990 Coll. cannot be interpreted as a violation of

the principle of equality. Inequality is also reflected in the fact that in some

the new agreement is the rent cases, and that the Decree creates the

unjustified differences between the apartments and between groups of owners

apartments and tenants.



In the opinion of the Ministry of labour and Social Affairs is primarily to be

State that if the Ordinance does not apply to apartments housing cooperatives,

It's not her lack of eating, because inequality-based cooperative

housing is different from rental housing (cf. section 685, paragraph 2, of the code of

Code).



Differences in position between the owners of houses with ocean apartments with regulated

the rents and the owners of the home in which they are apartments, which rent

the new agreement of the parties, as well as between tenants of flats with

regulated rents and tenants of apartments in houses in which the rent

the new agreement of the Contracting Parties, assess the appellants as differences

unjustified and violative of the constitutional principle of the equality in rights. So far

interpretation of the principle of equality in the rights contained in article 81(1). 1 of the Constitution and

article. 1 of the Charter of the Constitutional Court, leading to conclusions about its relativnosti

(find the Constitutional Court of 7. 6. the 1995 SP. zn. PL. ÚS 4/95 announced by under

No 168/1995 Coll., Constitutional Court of 17. 5.1994, SP. zn. Pl. ÚS

36/93 declared under no 132/1994 Coll.) and the need for the current application

the principle of fairness and proportionality (finding of the Constitutional Court from 21. 12.

1993, SP. zn. PL. ÚS 19/93 declared under no. 14/1994 Coll.) as the conceptual

requirements of rule of law. The Ministry of labour and Social Affairs

takes the view that rent controls is justified by the public interest in

ensuring basic necessities such as housing a wide range of

of the population and that, in this sense, does not violate the principle of equality in rights.

For more detailed arguments in favor of this opinion will be focused on lighting

the nature of the tenancy relations in their socio-historical and legal

the context of the past ten years, the transformation of our society. Similarly,

considers that the regulation of rents does not violate article. 11 of the Charter to protect the

the right of ownership.



For the characteristics of the situation in the area of rental housing is considered

The Ministry of labour and Social Affairs to pay the following

fact:



On the structure of the housing stock in the Czech Republic participates in according to the CZECH STATISTICAL OFFICE

in 1998 the ownership sector of approximately 47% (with only about 5% of the

It consists of individual apartments owned, the rest consists of

family houses used for the housing cooperative sector owners), 19%

(mostly apartments construction housing cooperatives incurred in the period

years 1960-1990) and of the rental sector approx. 31% of which consists of three

three-quarters of the Housing Fund of municipalities, i.e.. earlier the State Housing Fund,

one-quarter consists of rental homes owned by natural persons

(especially restituentů) and other private individuals. In absolute

the observations can be pointed out that, in the context of rental housing, there is 1 134

thousands of apartments, home to approximately 1 097 thousand households, which represents a

nearly 3 million people. Of this number, with rent controls apply to the

97.7% of the flats.



The specificity of the rented sector lies in its territorial deployment;

roughly 55% of rental housing is concentrated in the municipalities of over 50 thousand

almost 45% of the population is concentrated in the municipalities of over 100 thousand inhabitants (in

Prague is almost 260 thousand apartments with controlled rent, in other

the municipalities of over 100 thousand inhabitants approximately 155 thousand bytes). Lease

housing is therefore concentrated in places with a high concentration of working

opportunities to historically incurred by industrial and administrative center,

and in social terms, it is significant that approximately 400 thousand

these apartments live pensioners and the unemployed.



In the past ten years, the proportion of rental housing in the total housing

in particular, reduced the influence of the Fund conversion to non-residential premises and

transformations on cooperative apartments (to a lesser extent on apartments owned by the

natural persons), in the wake of the carry-over three-quarters originally

the National Housing Fund, the ownership of municipalities (this process is

referred to as the privatization of flats). The decline in rental housing was not in

recent years, offset by the construction of new dwellings (the analysis of this

factor exceeds the competence of the Ministry of labour and Social Affairs).



The transformation of market rental housing characterized by moving assets

State to the new owners (the influence of the restitution of the ownership

Therefore, the municipalities) took place while reducing the share of rental housing on the

the total housing stock, while the above indicated concentration into large

agglomerations and significant share of socially vulnerable groups on this

the type of housing in a manner that did not allow and will not allow the tenant so far

take advantage of competition to negotiate the price of the corresponding

the quality of the service and its purchasing power.



In this context, the Ministry of labour and Social Affairs points out

a major deregulation of the prices of energy, water and services connected with housing,

that have taken place in recent years. Expenditure on housing in the Czech Republic

they are no longer in comparison with developed countries disproportionately low and in 1996

represented their share of the gross domestic product per capita

16.3%, while the average of the 15 Western European countries (i.e. non-EU countries of Greece and

The inclusion of Switzerland and Luxembourg, Norway) was the only 12.7%. The share of

expenditure on fuel and energy in the total cost of the housing is in the United

Republic of the highest of the Western European countries, including four

Central European transition countries. In absolute terms, the

expenditure on housing (rent and expenses associated with the use of the apartment) in the United

Republic since 1990, almost tripled.



The social burden of households living in rented housing is highest in the

households of pensioners (the proportion of their expenditure on housing on the net

income shall be according to recent data of 1999 29.4%

some groups of pensioners in some areas, especially in Prague,

reaches almost 40%).



The legal order of the Czech Republic does not have legislation that would

has identified the proportion of expenditure on household income, which should not

be exceeded. Clearly however, in his opinion, the border

loading capacity of the social transformation process in this area can be considered as

filled for households of pensioners and given the already achieved market share

expenditure on rental housing (especially due to the deregulation of energy prices and

related services) is not for the other groups of the population given a

a wide space for the release of the rental price, if it does not endanger the

such basic social security, which represents the housing. The cost of the

housing represented in households of employees with children in 1999

approximately 18% of their net cash income. The State supports the

Currently, households whose income does not reach the level 1

subsistence level, the contribution of the housing (Act No 117/1995 Sb.) and two

posts temporarily-to 30 respondents. 6. (a) 31. 12.2000-the sudden

increase in the price of rent and heat (Law No. 75/1997 Coll. and 132/1997

SB.). The amount of the income growth is falling and income-level 1

subsistence level is negligible.



The European practice of social policy is directed towards State intervention in cases

When the proportion of expenditure on housing above 25-30% of total revenue

household. Access State to the transformujícímu market Ocean apartments

must be, in the opinion of the Ministry of labour and Social Affairs health

a series of measures; in doing so, however, cannot be the way of the extensive area of intervention

in the form of income-tested benefits realized to support income

major social groups of the population. The consequence of it would be next to

probably unmanageable budget expenditure-and the disruption of social

the cohesion of society. Rent increases must therefore be the growth

a substantial part of the company's revenue. Therefore, if the State regulates the price of

rental housing, expresses a clear public interest in the position of

broad sections of the population, which in legal relations related to the


the rent of the apartment entered in the vast majority even before November 1989.

The Constitutional Court in its finding of 22. 3.1994, SP. zn. PL. ÚS 38/93 (No.

86/1994 Coll.) in the matter of the application for revocation of the provisions of § 871 of paragraph 1. 1

the civil code affirmed the constitutionality of the protection of

users of the flats when the transformation of the personal use of the apartment to rent-protected

to 1. 1.1992. Create an acceptable state of legal certainty for all

the existing legal relations to flats, the Constitutional Court has called for the public interest,

that would outweigh the potential disadvantages of owners of private houses (which

but the Constitutional Court or nedovodil).



Public interest in the subordination of the prices of rental housing rules laid down

In summary, the legislation is, therefore, given the above

characteristics of rental housing, the lack of adequate affordable

menu, the social situation of tenants, as well as the need to protect the rights

acquired in relationships, which in most cases was created completely

different legal and social circumstances.



The Ministry of labour and Social Affairs is of the opinion that if the price

the regulation did not exist, would the so-called. locally normal rent according to the

Ministry for regional development, for example. in Prague the above 155 Eur/m2

(the current price is 32.70 CZK/m2) and in other municipalities of over 100 thousand

the population would price was in the range of 36-110 Kč/m2. When the rent increases in the

Prague, for example. the 100 CZK/m2, the current cost of living

single-person households, a pensioner in the apartment of 40 m2 increased by 98.6%, so

the share of housing costs on net income, accounted for 77%. In

households of employees with children in the same circumstances would have exceeded the

the average of all developed countries. The consequences of this impressive

the increase would have been the batch of social security systems

unsolvable and led by the effects of poverty and social exclusion.

Party leaves the Ministry of labour and Social Affairs, serious

the consequences that such a step would mean for the market economy in General.



The Ministry of labour and Social Affairs therefore contends that rent controls

does not violate the constitutional principle of equality, since it respects the public interest, and

public welfare expressed the most desirable social cohesion

the company. It also respects the principle of legal certainty, as the Central

the principle of the rule of law and does not infringe the principle of proportionality of the intervention.



In relation to the alleged violation of the applicant article 11 of the Charter should be according to the

the opinion of the Ministry of labour and Social Affairs to consider whether the right to

ownership is not getting into a collision with another fundamental right, and not only in the

scope of the protection of human rights by the Charter, but also the extent to which

the Czech Republic is bound by the international treaties on human rights and

fundamental freedoms referred to in article. 10 of the Constitution. If on the one hand it has

every right to own property (article 11, paragraph 1, of the Charter), it shall be prohibited

abuse of property rights (article 11, paragraph 2, of the Charter) and the

the forced restriction of property rights (article 11, paragraph 4, of the Charter) in the public

the interest, on the other hand, there is the protection afforded by the law usually

known as "the right to an adequate standard of living". The protection of the

This law provided in international treaties under article. 10 of the Constitution

(which is the Czech Republic tied) appears to be broader than the protection guaranteed by

By the Charter. The Constitutional Court has repeatedly applied the Convention on the protection of

social rights, in particular as regards the International Covenant on economic,

social and cultural rights no. 120/1976 Coll. (hereinafter referred to as "the Covenant"), and

When defined by international documents containing fundamental rights in

the social field (find Constitutional Court on 23. 11.1994, SP. zn. Pl. ÚS

13/94 declared under no. 3/1995 Coll.), stated that they are (among other things)

The Universal Declaration of human rights and the European Social Charter. General

Declaration of human rights in the article. 25 announces the right of everyone "to such a

standard of living, to ensure its health and well-being as well as the health and welfare of its

the family, including food, clothing, housing, medical care and the necessary

social services .... " Even knowing that the Declaration has only

recommendatory, has undeniably considerable interpretive meanings and legally

importance for the formulation of universal human-rights standards. Clearly

inspired by the Covenant in article Claims. 11 establishes the right of "every individual

to an adequate standard of living for him and his family, includes in it

adequate nutrition, clothing and flat, and the constant improvement of living

conditions. " The Covenant the State party undertakes to take appropriate

steps to ensure the realisation of this right. Czech Republic is a Pact

bound by the case-law of the Constitutional Court and can be found support for his

a unique classification as an international treaty on human rights

According to the article. 10 of the Constitution, which is immediately binding and takes precedence over the

by law.



Czech Republic ratified 3 June. 11. the 1999 European Social Charter,

Additional Protocol to the European Social Charter ratified by 17. 11.

1999, the Protocol amending the European Social Charter ratified by the day

17.11. 1999-but has not yet entered into force. The European social

the Charter came into force for the Czech Republic 3. 12.1999, Additional

Protocol of 17. 12.1999. The European Social Charter is a document of the Council

The most important tool in Europe and the protection of social rights at European

level. It is recognized for the counterpart of the European Convention for the protection of human rights

and fundamental freedoms in the social sphere.



Article 16 of the European Social Charter is the right of families to social,

legal and economic protection. In it, the Contracting Parties undertake to

promote the economic, legal and social protection of family life

by such means, such as family benefits, tax measures,

the provision of housing benefits for families, newlyweds and other appropriate

resources. The social protection provided by this article, the European

the Social Charter includes as an important part of the measures aimed at

support families also measures relating to housing; the basic intent is

the commitment of the State to act in those areas where the needs of families as a result of

the limited resources that they have to cover these needs is available,

become particularly urgent. The Committee of independent experts, which assesses the

reports of the parties on the implementation of the various commitments of the Charter, for example,

requests for detailed information on the proportion of family income on rents according

various sociálněprofesních categories of tenants, therefore, to conclude,

whether a party complies with its undertaking. The additional protocol to the Charter of

mentions in the article. 4 relating to the social protection of older people need to

the provision of adequate housing for their needs or sufficient support

in order to adapt their housing. All of the above commitments, Czech

Republic in the European Social Charter and the additional protocol

It has ratified.



To indicate trends, which the Council of Europe seeks to protect social

rights, it should be noted that the revised European Social Charter of the year

1996 provides for an explicit right to housing in the article. 31 and housing considers

part of the protection of the most vulnerable groups (persons with disabilities,

families, elderly people). The Council of Europe is dedicated to the issues of the right to housing

consistently in other instruments; for example, you mention the Recommendations

The Parliamentary Assembly 1074 (1988), about a family policy, recommendations

The Committee of Ministers RE R (94) 124, of a comprehensive family policy, decisions

(68) 37 from 24. 11.1968, about legislation to compensate family

obligations or decision 70 (1998), about social cohesion in towns

(adopted by the Congress of local and regional authorities in Europe). In these

the acts can be found a number of recommendations directly relevant to measures

řešícím access of families and other members of society.



The Czech Republic, in its catalogue of fundamental rights has not indicated

explicitly between the social rights the right to the protection of adequate living

levels, including housing, nevybočila too from European practice. Such

the right can be found only in the constitutions of Belgium, Portugal, Spain and

The Netherlands. Still holds the Ministry of labour and Social Affairs, of the opinion that

of obligations arising from international agreements on fundamental human

rights according to art. 10 of the Constitution can protect the housing at the level of the basic

human rights should be inferred for the Czech Republic.



If you are in a collision of two fundamental human rights, it is not about

an unusual situation and the Constitutional Court in its case-law has already sufficiently

shed light on how such a conflict measure (finding of the Constitutional Court of 12. 10.

1994, SP. zn. PL. ÚS 4/94 declared under no. 214/1994 Coll.).



In the light of the criteria, which the Constitutional Court indicates in the last-cited

the award of interest for the measurement of such collisions, measures consisting in the

the regulation of the prices for the use of the apartment allows you to achieve the objective pursued, i.e..

social protection, a group of tenants who cannot negotiate a price

corresponding to their purchasing power; It is therefore a measure in his opinion

appropriate. Because the same objectives cannot be achieved by means which would

indirectly struck by revenue from the existence of the right of ownership to

flats, the measures needed. In terms of the severity of the collision


standing rights should be, in the opinion of the Ministry of labour and social

things to take into account the fact that housing constitutes one of the essential

the living conditions and the guarantees necessary for survival.



The Ministry of labour and Social Affairs therefore concludes that the measures

made in the public interest of rent control (in addition in

the legal relationships arising in the period before 1994, in most

the cases then before 1989) respect constitutional limits restrictions

of property rights contained in the article. 11 (1) 3 of the Charter in relation to the article. 4

paragraph. 3 of the Charter.



For completeness, the argument points out the Ministry of labour and Social Affairs

the case-law of the European Court of human rights, which assessed whether

how some of the Contracting Parties to the European Convention for the protection of human

rights and fundamental freedoms (No. 209/1992 Coll.) it is conformable with the article. 1

The additional protocol to the Convention in the event of a reduction of the rent provided for

the Treaty (judgment in case Mellacher/ost of 1989, and-169). Court

found that it is in accordance with art. 1 of the additional protocol, in

their policies the legislature reasonably determines that the rent provided for

the contract on the basis of market conditions is unacceptable from the point of view

social justice. The case-law on article 1 of the additional protocol

then illuminates how significantly the European Court views issues of General

interest of public benefit, of proportionality and fair balance

associated with modifying the use of property in accordance with the general interest.



For the integrity of the case submitted to the decision of the Constitutional Court

mentions the Ministry of labour and Social Affairs that even an interwar

the regulations contain a significant protection of tenants (for example, section 8 of Act No.

130/1922 Coll., section 8 and 9 of law No 44/1928 Coll. or section 7 of the Legislative Decree

No 228/1938).



The Ministry of labour and Social Affairs has all of these aspects of a

that the proposal of the Group of Senators to repeal Decree No. 176/1993 Coll., on

as amended, is not justified, and therefore suggests the

the rejection.



Ministry for regional development stated in its observations that the proposal

a group of Senators on the cancellation of the Decree of the Ministry of Finance No. 176/1993

Coll., on rent from the apartment and pay for the implementation provided with the use of the apartment,

as amended, it is not justified, and suggests that the

rejected.



The proposal does not, in its opinion in particular on account of the specific nature of the

housing, which as one of the basic needs has its indispensable

the value of the. Solutions to the housing needs of citizens is interested in private as well as public and

cannot be left to market forces only živelnému. Therefore, it must be the market with

flats managed by the State. This principle of State housing policies is in

accordance with the right to housing, which is contained in particular in the international

Covenant on economic, social and cultural rights, as well as in

other international documents. Deregulation, including prices for

services related to the dwelling is necessary to associate with the realization of the overall

the concept of the housing policies of the State.



Ministry for regional development has considered that rent control should be

assessed in the context of the current development and the current state of the legal

leasing an apartment. In 1991, it was within the extensive amendments to the

the Civil Code addressed the new tenancy law. Was

removed the existing mandatory way of farming with residencies, unequal

the position of the owners home, and made other modifications aimed at more

of freedom of contract of lease relations. At the same time, however, it was considered

necessary to allow the unilateral adjustment of the amount of rent in order to achieve the

the equilibrium of the market rent levels. A different approach, having regard to

the contractual nature of the lease of the apartment led to the transformed tenancies

block existing prices without the possibility of further deregulation. Due to the

the fact that the rent was not substantially improved since 1964, was

disconnect between the rent money on the basis of the applicable rental

relationships and market rents. The purpose of the legislation is to allow

the gradual overcoming of the difference between tenants amount originally agreed

the rent and the amount of the expected steady rent while

taking into account the interests of the landlords on the gradual flattening of prices because

the civil code as a stable standard that should not be subject to frequent

changes, it is not optimal for detailed adjustment of bargain rents,

It was incorporated into the law a mandate to issue specific rules, which

rent price range would be edited.



This concept, according to the Ministry of regional development inevitably also reflected in

area housing prices, which is within the meaning of section 877 of the civil code

also rentals. Under the current situation, the landlord of the rental market

housing by offering a monopoly position. The flexibility of an apartment

sector with affordable flats for tenants is very limited, because

as a rule, does not find other rental housing with the rents corresponding to its

options, even if your apartment is willing to exchange it for a smaller, matching

its possibilities. This situation, which, for us, it takes a few decades,

does not allow tenants to take advantage of competition to negotiate a price that

would correspond to the quality of service and skills in demand. It was therefore

a need for intervention by the State to the extent necessary, the contractual freedom when determining the

the price of the rent. Rent controls have been carried out in the past

direktivním way, firstly, the rules on the so-called. stop rents, and

fixed and uniform prices set under the category of apartment. The regulation of the

However, it cannot in itself be unconstitutional, price control is applied for

a number of other prizes in our legal system as well as in the vast majority

applicable laws abroad. Typically then, rent from dwellings in

abroad in most States regulated to some extent.



The current method of rent control does not specify a particular price that

the landlord agreed with the tenant, but lays down rules for their

negotiation, depending on the method of financing of construction and is

between the previously concluded agreements and new contracts shall be negotiated

with new tenants, where regulation does not apply. For previously concluded contracts was

need to respect the requirement of legal certainty for existing participants

civil-law relations and to ensure sufficient stability of these

legal relations before the intervention of State power and not least their

continuity. This was ensured by the provisions of § 871 of the civil code

transformational in nature, on the basis of which the present right to personal

the use of converted to flats to rent the apartment. At the same time it was necessary to ensure

to rent the apartment was protected until a fully

a functioning market.



Ministry for regional development, it follows from the above that,

that in any event it is not a violation of the equality of the subjects of the ownership

rights within the meaning of article 87(1). 3 (2). 1 of the Charter, since the price control is bound to a

apartments, and not on the person.



If this is a contradiction with article 4, paragraph 2. 1, 2, 3 and 4, the statutory mandate

contained in the civil code is the provision that has to

mind the mentioned article of the Charter, in order to preserve the consistency of the rule of law with

By the Charter.



Adjustment of rent in rental relations arising from the rights of use of the apartments

does not intervene in the opinion of Ministry for regional development into the substance

the right to own property, hold it, dispose of and take from it

the perks. The owner has with the House with the ocean flats, notes

yourself the burden of the obligations arising from the applicable legislation, rental

the relationship. This relationship is protected and, as already mentioned above, the gradual

deregulation is in the interests of the owner as neumožněním unilateral editing

the amount of the rent would have been freezing.



According to article 26, paragraph 2. 1 of the Charter, everyone has the right to free choice

profession and the preparation for it, as well as the right to do business and engage in other

economic activity. Relationship with Regulation No. 179/1993 is not in

this case is obvious. The conditions for release of occupied dwellings are given by

the civil code, and not by Decree and in the apartments is their

Another use entirely a matter for the owner.



The question of whether it is valid legislation in breach of article. 30 paragraph 2. 2

Of the Charter, the Ministry notes that the amount of rent control is bound to a

the apartment and not per person, and therefore cannot be said that the

favouring a certain group of people.



The necessary authorisation to issue specific rules to regulate the rents of

apartments and payments for transactions that is provided with the use of the apartment includes the right

the civil code. The release of the contested Decree is in accordance with the law on

prices and scope of authorities of the Czech Republic in the field of prices.

the fact that in our country there is not yet a fully functional market flats, of course

No one doubts. Therefore, to be regarded as correct, that the rent is

regulated by a special law and included in the List of goods with

regulated prices. A similar regulation is the subject of Decree No. 176/1993

Coll. and Decree No. 85/1997 Coll., on rent from dwellings acquired in the

cooperative housing construction and provided with remuneration for the use of

of these flats, and for cooperative flats.



Ministry of regional development indicates that it is not without


interesting that under section 696 of the civil code a special regulation adjusts the

cases in which the landlord can increase the rent by a unilateral legal

stroke. If this special regulation canceled without so far

the system replaced by new legislation, then the rent of the flats remain

virtually frozen at the level of the existing tenancy agreements. Thus occurs

the situation that is in direct contrast to the goal, which obviously

the plaintiffs wanted to achieve.



Finally, the argument, not legal, however, everything is

According to the opinion of the Ministry for regional development, the fact that the Government

prepared in accordance with the new concept of housing policies approved by the day

18.10. 1999 proposal for a new law on rents, which would, with effect from 1.

1. set aside the existing administrative and 2002 hard (absolute) control

the rent of the flats and replaced it with a standard system of the contractual price.

This system will allow a separate and market price evolution of the rent, the authentic

at the same time, however, the effective protection of the tenant as the consumer before

unfair price jumps and unfair requirements of the landlord.

Preparation of the law is inspired by the German legislation.



All of these reasons, the Ministry for regional development of the opinion that

It is essential that the Constitutional Court above mentioned proposal Senators rejected.



Decree of the Ministry of Finance No. 176/1993 Coll. was released on the basis of the

the provisions of § 20 para. 1 (b). and) Act No. 526/1990 Coll., according to which the

The Federal Ministry of finance, Ministry of Finance of the Czech Republic and

The Ministry of Finance of the Slovak Republic shall issue generally binding together

legislation on the methodology of price negotiation, the definition of undue

economic benefit and unauthorized benefit obtained

violates price laws, to regulate prices, pricing

Register, providing price information and price control. By law

No 135/1994 Coll. was cited the provisions of § 20, while released, the deletion of the

This provision, however, it cannot in itself have the effect of

the unconstitutionality of the contested Decree, therefore, that does not already have a foothold in the legal

the mandate. The launch of the authorizing statutory provisions cannot be

automatic cancellation of a decree issued on the basis of the authorisation,

If not so expressly stated in the Act, so that the contested Decree remains

a valid part of the Czech legal order, in particular in a situation where

This mandate, and in this respect, the duplicate, is contained in a later

Act of the Czech National Council No. 266/1991 Coll., on the scope of the authorities of the United

States in the field of prices, in its paragraph 2 (2). 2.



With regard to substantive aspects, in the opinion of the Constitutional Court, the objective of protecting

tenants, even as far as rent increases, it is kontinuitně

monitored since 20. years of age (Law No. 275/1920 SB., č. 130/1922 Coll. and no.

44/1928 Sb.-full text of the Act then opened a

by Decree of the Minister of social welfare No 62/1934 Sb.) and, eventually, in

the postwar period to the present. the release of the Civil Code No. 141/1950 Coll.,

No. 40/1964 Coll., as amended. In this context,

does not stand up as a relevant link to the plaintiffs that the Parliament of the CZECH REPUBLIC

did not include the right to housing to the category of fundamental rights and freedoms,

on the contrary, all previous edits would appear to be consistent with what is in the

international treaties on human rights and fundamental freedoms,

which is the Czech Republic pursuant to article. 10 the Constitution immediately bound,

referred to as "the right of everyone to an adequate standard of living

for him and his family, including adequate food, clothing,

the apartment, and the continuous improvement of living conditions "(article 11 (1)

The Pact). Similarly, addressing the issue of housing and the article. 16 of the European Social Charter and

article. 4 of the additional protocol to the Charter, which were the Czech Republic

ratified and promulgated (art. 10 of the Constitution). The right to adequate

(reasonable) housing (article 11, paragraph 1, of the Covenant) includes under General

the comments of the Committee on economic, social and cultural rights no. 4 of the year

1991, inter alia, the aspect of the ability to pay the rent. The amount of the payment of the lease

by an individual or the cost of the use of the apartment should be at such a level,

that does not affect the existence or the satisfaction of other essential needs.

Contracting Governments should generally do, so that the percentage of the cost

attributable to housing was not disproportionate to revenues. The Contracting States,

should adjust the rent for the benefit of those who do not have

resources on paying the lease, and the modality and the amount of payment that

faithfully reflect the needs on this issue. In accordance with the principle of

respect for the ability to pay the rent, the tenants should be protected

appropriate measures against excessive nájmům or against excesivnímu

raising the rent. This right is enshrined in the article. 11 the Pact considers the Constitutional

the Court of the reasons given for the indisputable, the aim of which, as amended by

This article and our State is required to take "appropriate action".

Comparable rights, albeit condensed in favour of families, elderly people, respectively.

include the article. 16 of the European Social Charter (the right of families to social,

legal and economic protection), which has become for the Czech Republic

valid January 3. 12.1999 and was declared under # 14 Collections of international

treaties and article. 4 (4). 2 (a). and (right) of old people on social

the protection) of the additional protocol to the European Social Charter out of 5. 5. in 1998,

which entered into force for the Czech Republic on 17. 12.1999 and was

published in the collection of international treaties under no. 15/2000. A similar

Indeed, the issues dealt with and the European Court of human rights,

specifically, in the case of Mellacher and .ost files. v. Austria (19. 12.1989, and-

169). As part of its decision, in which it did not find a violation of article 6(1). 1

Of the additional Protocol No. 1 to the Convention in the case of a complaint of a few

property owners against the introduction of the regulation, and hence the effective

reduction in rent, the Court expressed some general conclusions

applicable in a given case. Above all, it concluded that the measures

pointing to the rent control cannot be considered as a formal or de facto

expropriation, since here nor the transfer of assets to the complainants, nor

they were not deprived of the right to use it, rent or sell. The contested

the measures will undoubtedly get rid of part of the proceeds from their property,

under the circumstances, can be thought of as controlling the use of the asset.

The second paragraph of article. 1 of the additional Protocol No. 1 provides States the right

receive such laws as it deems necessary to control the use of the

property in accordance with the general interest ("general interest"). Such laws

are particularly necessary and usual in the housing sector, which in

modern societies becomes the central question of social and economic

policy. In order to carry out such a policy, legislation

must have a broad space for reflection (guest) (the "margin of appreciation"),

When determining whether there is a public interest in conferring the right to

application of governing (control) measures, also with regard to

the selection of the detailed rules for the implementation of such measures. As the Court of

emphasized in the case of James and others, the State must respect the

the principle of reasonable (fair) balance ("fair balance") between the

the requirement in the general interest of society and the need for protection

fundamental rights of the individual. Finding this balance is reflected in

the structure of the article. 1 as a whole, and thus to the article. 1 (1). 2 of the additional

Protocol No 1 to the Convention, in other words, there must exist reasonable

(unfounded) relationship of proportionality between the means

objectives pursued.



It is true that the Charter, as a constitutional law to report between embodied

social rights, specifically the right to protect a reasonable standard of living,

including housing. That fact, however, no constitutional nediskvalifikuje

the relevance of the rights enshrined in the said international treaties.

In accordance with its established principle are constitutional and contractual catalogs

human rights are complementary and work in harmony. This

the principle explicitly express how each international treaty on

human rights, as well as a modern Constitution. Article can be mentioned. 60 Convention for the

the protection of human rights and fundamental freedoms, which provides that "nothing in the

This Convention shall be construed as limiting or derogating from any of the human

rights and fundamental freedoms which may be ensured under the laws of any High

the Contracting Parties or under any other agreement to which it is a party ", as well as

article. 32 the European Social Charter, according to which "the provisions of this Charter

without prejudice to those provisions of domestic law or of any

bilateral or multilateral agreements already in force or will enter

force, which is a protected persons receive more favourable

treatment ". Between constitutional texts can be placed for example. The Constitution of the Russian Federation

from 1993, whose article. 55 States that the constitutional catalogue of fundamental rights and

freedoms must not be interpreted in a way that would be denied or restricted other

the universally recognized rights and freedoms. Similar provisions contain for example. article.

43 of the Armenian Constitution of 1996, or article. Article 17(1). 2 the Albanian Constitution of r.

1998. From this principle it follows that the omission of certain rights (in this


the case of the right to protection of a reasonable standard of living, including housing)

The Charter should not be construed as a limitation of the rights guaranteed by the

solo travellers according to international treaties on human rights and fundamental

freedoms, and an individual guarantee "more favourable treatment" (in the

this case under international treaties).



Completely aside the merits in this case is therefore in this context

the appellants ' argument that the Decree No. 176/1993 Coll. protects only

a group of tenants in apartments with controlled rent, and so the difference and

inequality between owners of houses with ocean apartments are flats with

regulated rents, and the owners of houses with apartments, in which a rent

the new agreement of the parties, as well as between tenants of apartments in

houses with ocean apartments are apartments with controlled rent, and

tenants of apartments in houses with apartments, in which the company will rent agreement

of the Contracting Parties. The fact that the contested Decree due to the provisions of section 2 of the

paragraph. 2 (a). a), b) excludes rent control in this provision

restrictively defined cases, can be seen as, in the opinion of the constitutional

Court for completely natural and logical, since both the here defined

cases of "inputs" into a contractual relationship, the inputs management in

basically the principle of autonomy. If it could not, in principle, and

There was to be, then. the right to do business in the area of rental housing,

Thus, the law, which in its general form is enshrined in article. 26 paragraph 2. 1

Of the Charter, it was simply "the law on paper".



In the opinion of the Constitutional Court, the principle of reasonable (fair) balance

He was, however, in the present case the provisions in one of the basic moments,

which cannot be separated from the contested Decree, as a whole, in so far as that

the contested decree had not been taken into account in the process of destruction of property

right after February 1948. Already the Civil Code No. 141/1950 Coll. introduced

the distinction between the so-called. personal and private property (sections 105, 106) and in the

the provisions of § 110 enshrined the ideological slogan that ownership

ratios to the soil are based on the principle of "the land belongs to those who on it

they are working ". The process of destruction of property rights was deepened by the adoption of

of the Civil Code No. 40/1964 Coll., which established the Institute of the so-called. personal

the use of other rooms and apartments, plots of land, private editing

ownership among the final provisions and also in other ways, restricted, and

questioned the right of ownership in a manner contrary to the General legal

the principles recognized by civilized nations. To that process of destruction

podzákonná adjustment and contributed significantly to the rent contained in the decrees of the

No 411/1950 Ú. l., no. 371/1952 Ú. l., no. 60/1964 Coll. and no 217/1988 Coll.

Indeed, while the interwar legislation in this area, the quantities

only rent increases, without otherwise affected the amount already agreed

rent, Decree of the Ministry of labor and social welfare no 411/1950 levels.

l., adjusting the rent of apartments and other rooms completed after 5. 5.

in 1945, in the provisions of § 2 categorically stated as a basic

the provisions that the rent can be required to pay only the amount specified in the

in accordance with this Ordinance. Decree of the Minister of Finance No. 371/1952 OJ l.

evacuation of buildings on the special accounts for State savings banks,

then the owner has made rather a hostage in the hands of the State, when in the

the provisions of § 1 laid down the obligation of the owner of the building in this

the provisions of the specified conditions to establish closer at the State savings bank

special account of rents, in the provisions of § 4 of the obligation to pay the owner

selected quarterly or monthly rent savings bank on this special

account, and the provisions of § 5 obligations of corresponding with the owner

the obligation of the savings bank with the fact that paragraphs 10 and 11 were at the same time

the conditions for the release of the amounts needed to cover the costs

repairs in the building, paying vlastníkových public commitments, etc.

Obligation to evacuate the rents on the special accounts of the rent was left

and by a decree of the Ministry of finance, prices and wages of the Czech Socialist

No. 217/1988 Coll. All these restrictions of ownership rights, which

the tendency of the political system was called to liquidate the so-called. private

ownership as a potential source of a certain economic autonomy has led to

the fact that from 50. years began in massive experience/donation

in particular, rental, home owners State, which in the conditions of

a functioning democratic State is hardly imaginable. On the contrary, after

the events of November 1989, and after the release of Act No. 87/1991 Coll. on

extrajudicial rehabilitation, were also in a significant number of cases

applied to return the restitution claims of these objects to their former

owners or their legal successors. It is well known

the fact that countless numbers of these properties was these former

owners or their legal successors, issued in the derelict

State, so that certain categories of owners, particularly owners of

rental home, they could not meet their basic obligations or

the landlord that is contained in the provisions of § 687 para. 1občanského code.

In addressing the disconnect between the continuity of the protection of tenants and

by the destructive vlomy to ownership rights in the period 50.

-80. Therefore, the contested Decree progressed years completely unilaterally. In order to

already found owners lease obligations to live up to home and

in order to realistically get to the word and the individual's right to proper housing

within the meaning of article 87(1). 11 of the Covenant, for example, the path can be chosen, which could

already an interwar legislation which, in the provisions of § 9 para. 4

Law No 32/1934 Coll., as amended, to allow for an increase

the rent payment made by reason of the cargo at the occasional or exceptional

necessary repairs and restoration of the House.



Collectively speaking, that already starting with the prvorepublikovým legislation

was quite consistently enforced protection of tenants, even as regards the

rent increases, while on the other side of the early 1950s. until the end of

the 1980s were significantly disputed, and many vlastníkových

permissions eliminated the right of ownership, required removal of already

established discrimination of certain categories of owners, so that the

It was filled with their right to peaceful use of property within the meaning of article 87(1). 1

Of the additional Protocol No. 1 to the Convention, as well as the right enshrined in article. 11

paragraph. 1 of the Charter. The essence of discrimination is no longer listed

the fact that, unlike other owners, are later referred

the category of owners not only denied some of the essential permissions

forming the contents of their ownership rights, but that in addition are

vmanévrováváni into a situation where in a number of cases, in particular, where

up to the present. in rental houses is a source of revenue only rentals of apartments in

they really are forced to subsidize from their what the Constitutional Court

shows as a matter of social nature and responsibility, so as

the burden of proof, which is not possible for certain social groups and

the severity and nature of which requires, as noted in the General

comments of the Committee on economic, social and cultural rights # 4 of

1991 (editing posts on rent), a truly responsible and balanced

access from the State and the whole society. As has already been stated

up to the present. in the Constitutional Court pl. ÚS 4/95, published in the collection of findings

and the resolution of the Constitutional Court of the CZECH REPUBLIC in the year 1995, volume 3-piece under the order.

# 29, inequality in social relations, in order to touch base

human rights must reach the intensity of the questioning, at least in

a specific direction, already the very essence of equality. So usually happening when

If it is in breach of the equality and violations of other fundamental rights,

for example. the right to own property under art. 11 of the Charter. While indeed

freedom is the essence of the content given to the right of the individual, equality requires

as a rule, "" middle men "," relationship to other social value. In the opinion of

The Constitutional Court as to the infringement of equality in the already konstatovaném

as in the present case, since the contested Decree is violated

ownership of constitutionally guaranteed in article. 1 of the additional Protocol No 1

to the Convention, as well as in the article. 11 (1) 1 of the Charter. That's because the category

in fact, the owners "dotujících" rent-and in this category

Today, in many cases, fall and even owning rental homes-is,

Unlike the other owners, content and performance range of basic

owner permissions that comprise the content of ownership,

nezdůvodnitelně challenged and denied. However there is no doubt that the

also these discriminated categories of owners are obliged, in terms of

the issue of rent increases, with certain restrictions, podříditi may

only when the conditions resulting from the article. 4 (4). 3, 4, of the Charter.

In accordance with paragraph 3 of that article, the legal restrictions of fundamental rights and

freedoms must apply equally to all cases that meet the specified

conditions, while under paragraph 4 of this article when you use the

the provisions on limits of fundamental rights and freedoms must be preserved

the essence and the meaning of. However, that is not in the present case and challenged

the decree is based on opinions of the Constitutional Court in contravention with article. 4 (4). 3, 4


Of the Charter, since certain categories of owners are forced to submit to

the significant limitations of their ownership rights while others do not, and to

This limitation occurs because the contested Decree in a way that has little

to do with the investigation, the nature of property rights.



In the opinion of the Constitutional Court, the principle of reasonable (fair) balance

requires that, while respecting the requirements contained in the article. 11 of the Covenant was

taken into account in the process of destruction of property rights, especially if the

as regards the owners of rental homes, discriminated against in relation to other

the owners, on the rise. the so-called. family houses, that they are denied the benefit from

the fruits and benefits of its ownership, since, in fact, due to the amount of

rent and the amount of the costs necessary to operate, often in a catastrophic

the State of the held real estate, are part of the rent which would otherwise

taking into account all the circumstances, be considered reasonable,

forced to pay from your. In other words, due to the existing legal

editing there are today in our society, social groups or entities,

which is paid for out of your what in order to populate the already established article. 11

The Pact has to ensure the State. Price regulation, does not exceed the limits

constitutionality, not clearly reduce the price so that due to all the

proven and cost-effective option eliminate the need for at least

their return, because in such a case actually implied a

denial of purpose and all functions of the ownership.



Finally, as regards the alleged infringement of article 81(1) of the claimant. 26 paragraph 2. 1

Of the Charter, the Constitutional Court has considered that price regulation does not prevent anyone

a business or engage in other economic activities, since each has a

the possibility to freely decide whether under the given conditions in a certain area

a business will be. In addition, rent controls will not apply to newly concluded

the rental agreement, and therefore does not stand in the way of business activity.



The Constitutional Court concluded that the Decree of the Ministry of Finance No.

176/1993 Coll. is in breach of article. 1 of the additional Protocol No. 1 to the Convention,

article. 11 (1) 1, art. 4 (4). 3 and 4 of the Charter and article. 1 of the Constitution, and therefore it

pursuant to section 70 para. 1 Act No. 182/1993 Coll. has abolished on 31 December. December

2001, in order to allow sufficient time for legislation to create a new

high-quality legislation.



The President of the Constitutional Court:



JUDr. Kessler v. r.



Different opinion on the decision of the Assembly, took under section 14 of Act No.

182/1993 Coll., on the Constitutional Court, judge JUDr. Vladimir Paul.