On The Proposal That Repeal Of The Decree Of The Town Of Chrastava

Original Language Title: On The Proposal To Repeal The Decree Of The Town Of Chrastava

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=74534&nr=202~2F2011~20Sb.&ft=txt

202/2011 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court under the SP. zn. PL. ÚS 29/10 decided on 14 July. June 2011 in

plenary in the composition of Stanislav Duchoň, Package, Vlasta Formankova,

Turgut Güttler (Judge-Rapporteur), Pavel Holländer, Ivana Janů, Vladimir

Crust, Jiří Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský and Miloslav

An excellent proposal for a Ministry of the Interior on the abolition of the article. I and article. II. 2

generally binding decrees of the town of Chrastava No 5/2009 on the determination of positions on

which can be operated by interactive terminals, videoloterijní

the participation of the city Came as a party to the proceedings and the Ombudsman

as in intervention



as follows:



I. proposal for the abolition of the article. I generally binding decrees of the town of Chrastava No.

5/2009 determining the sites on which it can operate interactive

videoloterijní terminals, is rejected.



II. Article. II. 2 generally binding decrees of the town of Chrastava No 5/2009 of

determination of the sites on which it can operate interactive

videoloterijní terminals, including footnote No 2 shall be abolished on the date of

the publication of this finding in the collection of laws.



Justification



(I).



Recap of the proposal and the arguments of the appellant's



1. The proposal, which was delivered to the Constitutional Court on 5 December. may, 2010,

meeting the content and formal requirements under law No. 182/1993

Coll., on the Constitutional Court, in wording of later regulations, the Ministry of

the Interior (hereinafter also referred to as "the applicant") seeking cancellation of the above

the provisions of generally binding decrees of the town of Chrastava No 5/2009 of

determination of the sites on which it can operate interactive

videoloterijní terminals (hereinafter also referred to as "Decree" or "Decree No.

5/2009 ") for non-compliance with specified design closer to constitutional order

and Act No. 128/2000 Coll., on municipalities (municipal establishment), as amended by

amended.



2. The Ordinance (including footnotes and including small

spelling inaccuracies):



"Generally binding Decree of the town of Chrastava



No 5/2009



of 19 December 2003. October 2009,



on the determination of positions on which they can be operated by interactive

videoloterijní terminals



Council of the town of Chrastava (ZM) published by meeting

19 July. Oct, 2009 by resolution No 2009/05/XVI, in accordance with the provisions of section

10 (a). (d)), section 12 paragraph. 2, section 35 and section 84, paragraph. 2 (a). (h)) Law No.

128/2000 Coll., on municipalities (municipal establishment), as amended

(hereinafter referred to as the IP), and in accordance with the provisions of § 50 paragraph. 4, section 2 (b). e), §

17, section 18 and the other Act No. 202/1990 Coll. on lotteries and other

similar games, as amended by later regulations (hereinafter referred to as), this

generally binding Decree (OZV):



Article. (I)



Basic provisions



Interactive videoloterijní systems (ILV) fall under the definition of

listed in ZL ^ 1) between winning playing instruments and therefore in full

the range covered by the generally binding Decree of the town of Chrastava No 4/2009 of

on 31 December 2004. August, 2009, for the establishment of posts, which can be operated

a winning slot machine.



Article. (II)



The purpose of the Ordinance



1. Ensure public order.



2. Ensure that, in the territorial jurisdiction of the city was invalidated all

permits in the past or in the future, issued by the State supervision

The Ministry of Finance of the Czech Republic (hereinafter the MINISTRY) for the playrooms, (

restaurants and other places where a permit for winning playing instruments

issues of ZL Chrastava delegated scope), since these are

issued in contravention of ZL and to permit only valid ILV passed city

Chrastava delegated scope according to § 18 paragraph. 1, point (a). and ZL). ^ 2)



Article. (III)



The effectiveness of the



This generally binding Decree of the town of Chrastava shall take effect 15. on the day of

after publication. 3)



Ing. Michael Canov MiloslavPilař

the Mayor, Deputy Mayor



1 § 2 (b)). e) betting games operated by electronic or

elektronickomechanicky-controlled gaming devices or

similar equipment (hereinafter referred to as "a winning slot machine)



§ 17 paragraph. 1 slot slot machine means a compact, functional

distributable and programmed technical equipment with the specified

only for one player. The prize of the devices with the software

facilities enabling the current game on more slot sites more players

each such place is also considered playing a separate slot

playing the instrument.



2) § 2 MF may according to § 50 paragraph. 4 ZL permit and lottery and other similar

the games, which are not law in the first to fourth. This, however,

It is not the case, as they accompanied ILV fall under winning the playing apparatus

modified in section 2 and section 17 of part two ZL, arguing that in order to be at all

allowed to operate, must meet the conditions of § 19 of the second.



3) CHANGE requests the Ministry of Interior of the Czech Republic (hereinafter referred to as the MV)

If that becomes the legal opinion that this is contrary to the law, OZV

its effectiveness to suspend immediately according to section 123, paragraph. 2 SHOW your

with the decision by ZM declares that any so-called. the time limit per axle

and the rights of administration of degradation to the MV and asks that MV immediately according to section 123, paragraph.

3 the IP has made a proposal to the Constitutional Court to repeal this OZV. The CHANGES are expressed

to defend the legality of the Mayor's right through to OZV to

The Constitutional Court. "



3. the applicant reviewed the process of the adoption of the contested order and progress

its supervisory activities within the meaning of section 123 of the Act on municipalities. Chrastava

While categorically took its position and appealed for the speedy

the submission of the matter to the Constitutional Court. The Ministry of the Interior, decided

the illegality of article. I and article. II. 2 decrees in the following

the facts.



4. The Municipal Council of the municipality may, in accordance with article. paragraph 104. 3 of the Constitution, within the limits of their

the scope of the issue generally binding decrees, in which the issue is

the municipality on the basis of § 35 paragraph. 3 of the Act on municipalities (municipal establishment) controls

only by law. The obligations of the municipality may store in a separate scope

generally binding Decree under section 10 of the municipal establishment only in here

exhaustively set out the cases and, if so, the specific

the law. Act No. 202/1990 Coll. on lotteries and other similar games, in

as amended, (hereinafter referred to as "the Lottery Act") authorizes in § 50

paragraph. 4 the municipality to issue generally binding decrees, which the municipality may establish,

the winning slot of the device (also referred to as "AWP") can be operated

only in places and times fixed by Decree, on which

publicly accessible locations in the village is the operation of the AWP is prohibited.



5. The legislative shortcut "a winning slot machine", referred to in section 2 (a).

(e)), the law – the law means "betting games operated by

using electronic or elektronickomechanicky slot-controlled

musical instrument, or similar device ". The AWP is dedicated to the

part two – Act, in section 17 of this Act is the notion of the AWP on

developed so that it means "compact, functionally indivisible and

programmed technical equipment with control only intended for

one player. The prize of the device with the software

allowing the current game on more slot sites more players each

such playing Pro also considered a separate slot slot

appliance. ". From the wording of the law – in the opinion of the appellant suggests

the hallmark of the VHP is its compactness, i.e., a

autonomy, which leads to a betting game allows you to play set

the game, without having to join a winning slot machine with another

device. It is therefore a technical devices compact, compact,

the control provides a single player. Conceptual character to the VHP, which is

integrity, can then be applied to section 17(2). 1 the second sentence lottery

the law (the current multiplayer game on multiple places).



6. Article. I decree proclaims that the interactive videoloterijní systems

(according to the terminology of the contested Decree also just "ILV") fall from

the definition of the Lottery Act between the AWP, and therefore in full

covered by the Decree. The applicant is of the opinion that the ILV cannot be

accommodated under the concept of playing the instrument, since winning the decisive

factors to distinguish the two concepts are distinct technical requirements

asked on this device, and therefore different authorisation scheme, which is

outwardly manifested primarily by the nature of the bodies that are by law

authorized to issue permits for the operation of these devices. The conditions of the

the operation of the VHP are contained in the Lottery Act comprehensively and under the guidelines.



7. the applicant submits that the operation of lotteries and other similar games that

they are governed in the first to fourth Lottery Act, authorizing

The Ministry of finance pursuant to section 50, paragraph. 3 lottery law. Apply

While adequately the provisions of the first and fourth lottery law.

The Ministry of finance then the mode of operation of lotteries and other similar games,

that are not in the Act in the first to fourth modified, shall in

the document entitled Standard Central lottery system with the

Interactive videoloterijními terminals (Standard CLS-2009)
is a summary of the minimum system requirements for parametric,

whose authorisation, operation or enabling end stations so far

operating systems will be judged according to the authorisation authority § 50 paragraph.

3 lottery law. The standard also contains the relevant definitions.



8. the applicant is inclined to the opinion of the Ministry of Finance of

January 11, 2010, that is only part of the ILV electronic system, which

consist of a central control unit, a local control unit and constructed

Unlimited terminals-videoterminálů when referred to

an electronic system is a functionally indivisible. The connection between the

the Central Server and videoterminály is provided through

Remote on-line communication networks (the Internet) in such a way that the

both parts of the system during the course of betting games still in the connection; the game itself

the process does not take place in the end-device (videoterminálu), but in

the central control unit (Central Server). The ILV is only

the imaging device; programming devices receiving relevant

the data is part of the central server. ILV are not separate

game drives, but only on the control panel.



9. In the representation of a party to the proceedings from 26 March. February 2010 no j.

18129-3/REF.-2010 was noted, that not only meets the definition of a VHP ILV

According to § 2 (2). (e)), but also the lottery law definition of AWP according

the last paragraph of the amendment to section 17. 1 – act as the Central

the control unit is actually the VHP that its softwares

allows you to present the game in more places more players throughout the Czech

the Republic at a time, and each such place is therefore considered

separate AWP. Even within the meaning of § 17 paragraph. 1 – the law, however,

the appellant emphasized the concept of and the requirement of compactness of the VHP, ILV

as a control, it does not meet, and do a separate

unit.



10. the applicant is thus of the opinion that they represent the lottery or innominate ILV

another similar game that is not explicitly listed in the enumeration in section 2 or

in § 17 paragraph. 1 – the law and you can enable ad hoc only

The Ministry of finance pursuant to section 50, paragraph. 3 lottery law. The power to

municipalities generally binding decree to regulate lottery and other similar games,

However, concerns only the games referred to in section 2 (a). (e)) – the law;

statutory authorization referred to in section 50, paragraph. 4 – the Act applies

the issue generally binding decrees of the village, which may be closer to the Edit temporal and

local limits only the AWP and not the ILV.



11. According to the proposal-Chrastava-thus the Decree imposed the obligations

outside its factual scope within the meaning of section 10 (a). (d) the establishment in the village)

conjunction with section 50, paragraph. 4 – the law. Any authorisation and ILV

by storing the fines should the city has committed acts in violation of article jsoucím. 2

paragraph. 3 of the Constitution, as the State power can be applied only in cases where the limits of the

and the ways in which the law imposes. From the article. II. 2 is that

Chrastava was intended to extend the scope of its delegated to

the issuance of permits in excess of the section 18 paragraph. 1 (a). and) in conjunction with § 50

paragraph. 3 – the law at the expense of the Ministry of finance, including

the takeover of his supervisory duties, which is in contradiction with article. 105 of the Constitution.

This is the city has taken over the performance of State administration, without him was

entrusted by the law, which is also in breach of article. 2 (2). 3 of the Constitution.



12. For these reasons the claimant came to the conclusion that the town of Chrastava

the release order-in its contested provisions-beyond

material scope of the municipality to issue generally binding decrees modified in section 10

(a). (d)), and § 35 paragraph. 2 municipal establishment and the decree is in this

in conflict with the constitutional order, the municipal establishment and lottery

by the law. Therefore decided to suspend the effectiveness of the article. I and article. II. 2

the Decree.



13. In conclusion, the complainant submits that it respects the local administration as an expression

law and the competence of local authorities to manage public affairs in

the limits of the law, under its responsibility and in the interests of the local

the population; identified, however, with the Constitutional Court, that not all

adverse events in the village can be solved by specifying the circumstances of authoritative

individuals on the way their own standardisation. It is, in the opinion of the Ministry of

the Interior also in case the provisions of article. I and article. II. 2 the

the Decree. Despite the suggestions of amendments to the Act present lottery

Deputies of the Parliament of the Czech Republic, which was the possibility

Regulation of interactive VLT entrusted to the municipalities, is

need to insist on the illegality of the contested Decree.



II.



Representation of a party to the proceedings



14. Under section 69, paragraph. 1 of the law on the Constitutional Court was a copy of the proposal

posted to the representation of the city of Liberec as a participant of the proceedings. The suggested

that the Constitutional Court has rejected a proposal to repeal the Decree. With the abandonment of

the oral proceedings its assent, but asked for priority consideration

the proposal.



15. The appellant stated that the proposal of the Ministry of the Interior is based on the

the false exclusion from a set of VHP ILV. Even the definition of essential

the applicant (in accordance with a relevant standard of the Ministry of Finance)

on the contrary, says that the ILV is to be considered a winning slot

the appliance. Relying on the wording in § 17 paragraph. 1 the second sentence

Lottery Act, that "the prize of the devices with the software

facilities enabling the current game on more slot sites more players

each such place is also considered playing a separate slot

slot machine ". Contrary to this approach, it is also the argument

the petitioner about the lack of "semknutosti" (compactness) ILV. The relevance of the

then they say it lacks the argument, in which the device runs the game

the process; the "Control Panel" in the form of ILV is to be considered in accordance with section

17 paragraph. 1 – the law for "playing places".



16. in its observations the appellant further stated that the Ministry of the

its proposal completely omits, for the participant of the game is the difference between the ILV and

VHP completely indiscernible (indeed, even for staff rooms). ILV are

However, due to the possibility of higher wagered (and losing) the amounts

"more dangerous", often exceed the limits for bets, winnings, and

Finalist determined for the AWP in § 17 paragraph. 3 to 7 – the law. It

does not mean that they are not the winning slot machine, but it's just that

cannot be permitted and legally operated, until the financial

limits and other conditions are adjusted as required in section 19 of the

Lottery Act.



17. In conclusion, his representation of a party to proceedings against said procedure

the petitioner, who had sought "at any price to obtain the arguments only

against the opinion of "the town (and not objectively for and against). In addition, they said the position of the

The Ministry of the Interior, causing major problems for other municipalities in the form of

the increase in crime, disrupt families, etc. The rejection of the draft would be

important not only for the city of Chrastavu, but also for other municipalities in the Czech

Republic, and for their citizens.



III.



Expression of the next party



18. in accordance with § 69 paragraph. 2 of the law on the Constitutional Court took the public

the Ombudsman of its right to act as a secondary party to the proceedings. Of the day

March 8, 2011, it was the Constitutional Court delivered his statement, in which the

He suggested the refusal of the application for revocation article. Even the decrees in question and to comply with

proposal to repeal article. II. 2 Decree. From a procedural point of view then

He suggested that the Constitutional Court has expressed an unambiguous conclusion on the beginning of the

the time limit under section 69, paragraph. 1 of the law on the Constitutional Court; They said it was for the

the case, that is the public defender of rights management (intervener here

He pointed out the ambiguity of the interpretation of the Act). Due to fitness then suggested

join the current proceeding with the proceeding held under SP. zn. PL. TC 56/10 (so far

on the proposal of the Ministry of Management hedge contingent exposures of the Interior on the cancellation in General

binding decrees of Františkovy Lázně, no 1/2010 security

local matters of public policy in the area of gambling restrictions). With

abandonment of the oral proceedings before the Constitutional Court, the Ombudsman

disagreed.



19. the intervener considers that section 10 (a). and municipal establishment)

allows you to regulate the activities of officially accepted and officially illegal, and

including the operation of gaming devices or other types of

the lottery as defined in section 2 of the lottery law, if it is a local

matter of public policy.



20. The relationship of section 50, paragraph. 4 – law and section 10 (a). and) municipal

the establishment is to be dealt with according to the rules of the lex posterior derogat

priori, because the provisions of section 50, paragraph. 4 – the law was enshrined

Amendment No 149/1998 Coll., which was adopted before the effect of the new

municipal establishment; In addition, apparently reacted to the then case law

The Constitutional Court. Both provisions are intended to protect the public order

and good manners in the village. The only difference is that, under section 50, paragraph. 4

Lottery Act, you can operate the AWP on some publicly available

places completely ban, while according to section 10 (a). and municipal establishment) can be

prohibit certain activities only in public spaces. On the one
side according to the valid wording of the municipality may, municipal establishment of regulated

operation and other types of lotteries (activities) than only winning

musical instruments, on the other hand, is limited to the total prohibition of

only the public spaces in the village.



21. According to the Ombudsman, the opinion of the Ministry of the Interior based on the

the narrow definition of a winning slot machine [section 2 (b), (e)) and § 17

Lottery Act], which can lead to absurd consequences. According to this

opinion, namely the municipality may proceed (section 50, paragraph 4 – Act)

only the operation of the "gaming devices", but if

instead of "will" practically the same or similar technical

devices with significantly problematičtějším impact, the village already his

the regulatory competence of the use. Such an approach is considered the protector of

for the incorrect and contrary to the purpose of section 10 (a). and municipal establishment (the purpose of)

It was anchored by the general clause, which gives a wide space for municipalities

the regulation of local matters of public order). With regard to the above

referred to as the village of ultra consider vires and do not need to solve complex

definition questions the difference between AWP and ILV.



22. In terms of the so-called. test four steps (see find SP. zn. PL. ÚS 63/04)

the village of its power and scope of abuses. For example, if

has banned in its territory Lottery "Lotto" or "happy ten"

It could be a misuse of powers. In the case of ILV, which fulfils the

practically the same functionality as the VHP, of abuse cannot speak. Village

here use its legitimate permission to regulate activities that

in fact, endanger the public order in the village over the operation of the AWP. In

This is also the requirement of reasonableness of the editing.



23. Regarding article. II. 2 order the guardian pointed out that the key is

the question of what Central Lottery systems with interactive

videoloterijními terminals are and who has the power to issue the appropriate

the authorization. In this direction he offered three possible explanations.



24. According to the first interpretation (contradict the town Chrastava) are actually ILV

the winning slot machine and permit their operation, is entitled to

issued only to the local authority. This interpretation is based on the purpose of section 17 and 18 of the

Lottery Act, which, within the scope of the village migrated can better

assess the facts applicable to the permit. Within the meaning of the argument

a party to proceedings about this conclusion is indicative sentence of the second paragraph of section 17. 1

Lottery Act.



25. The second interpretation, held by the Ministry of Finance (opinion of

January 11, 2010), is based on the requirement of compactness of the VHP. In this case,

videoloterijní are interactive terminals as part of a central

lottery system considered a special kind of lottery, the law closer to the

untreated, which may, pursuant to the provisions of § 50 paragraph. 3 to issue permit

The Ministry of finance. When issuing the authorization the while apply mutatis mutandis

the provisions of the first and fourth lottery law. With regard to the

functional identity interactive VLT with VHP is

the guardian believes that even if the ILV did not constitute a winning slot

the unit, the Ministry of finance when the authorisation of the Central

videoloterijními – system with interactive terminals required to

to apply all the provisions of the second part of the Lottery Act, which

the application is not excluded from the nature of things. As regards the location of the

each interactive VLT, is obliged to

respect also already issued generally binding decrees of municipalities to regulate the

operation of the VHP. The guardian added that in this matter in the context of its investigation

taken against the Ministry of finance found substantial misconduct. The weakness of

the interpretation is the fact that the authorization shall be issued by the authority which is not

realistically able to control compliance with the legal conditions or when

the granting of authorisation, or subsequently.



26. According to the third interpretation (a kind of compromise between the above

alternatives) Ministry of finance is authorised to issue only a "framework

the authorisation to operate the Lottery ", in which it sets out the General parameters of the game

(in particular, the requirements referred to in § 17 paragraph 3 to 7 – the law), but

to enable the location of a specific device will already be decided by the local authority

pursuant to section 18 of the Act. The Ministry, for example, will not be on the maps search,

If the appliance is not to be accidentally placed in the establishment of social services, etc.

This interpretation of the patron prefers; The Ministry of finance in its decision

verifies that a given type of lottery, but meets the requirements of the law of the location of the

and the operation of a specific technical equipment that will decide who is the real

able to assess the legality of the operation of the device in local conditions.



27. Regarding the impact of the Decree on the authorisation has already been granted intervener

He stated that the proposal of the Ministry of the Interior on the abolition of the article. II. 2

the Decree agrees. The municipality is not authorized to "conclude the validity or

invalidation of granted permission ". Depending on the type of the above

the interpretation, which is elected, the decision of the Ministry of finance, which

respect the relevant provisions of the Act – and generally binding

the Ordinance of the town of Chrastava No 4/2009 on the establishment of sites on which it can

be operated slot playing the instrument, either illegal (because of the

obligations of the Ministry of finance pursuant to section 50, paragraph. 3 lottery law

take into account not only the relevant provisions of the law on lotteries, but also to

adopted by the generally binding decrees, which regulate the operation of the AWP), or

zero (in the case that the power to issue a permit only has the municipal

the Office). Neither one of these facts, however, cannot be stated in General

a binding Decree. The administrative code and the rules of Court of the administrative know how institutes

to achieve a remedy of defects in individual legal acts, the municipality is not

authorised in the generally binding Decree these acts or to correct defects or

declare. Remedy the irregularity may be remedied thanks to the addition of section 43, paragraph. 1

Lottery Act ("authority that the lottery or some other similar game

allow, permit, if subsequently arise or come to light

the circumstances for which it would not be a lottery or some other similar game

allow, or be shown Additionally that information, on the basis of which it was

permits issued are delusional. ").



IV.



The constitutional conformity of the legislative process



28. Pursuant to section 68, paragraph. 2 of the law on the Constitutional Court, the Constitutional Court

First, the question of whether the legislation was adopted and published in the limits of the

The Constitution laid down the competence and the constitutionally prescribed way. The constitutional

the Court, therefore, the first focused on the question whether the contested general binding

the Ordinance of the town of Chrastava meets these criteria. Of written documents

that the Constitutional Court has submitted to the applicant, it follows that the Decree No.

5/2009 determining the sites on which it can operate interactive

videoloterijní terminals, was approved at a meeting of the Council

of 19 December 2003. 10.2009, while 16 voted for its acceptance of the

a total of 19 representatives. 20 December. 10.2009 Decree was posted up on

the official Board of the City Office of the town of Chrastava, from where it was removed on 5 December.

11.2009, thus after the expiry of the fifteen-day statutory time limit.

Generally binding Decree No 5/2009 was released constitutionally Conformal

manner and in accordance with section 84, paragraph. 2 (a). (h)), section 87 and section 12 of the Act on the

the municipalities.



In the.



Own assessment of the contested provisions of the Decree



29. According to its settled case-law, the Constitutional Court shall elect to assess compliance

the contested provisions of generally binding decrees with the constitutional order or

by law, the so-called. test four steps [cf. find dated 22 March 2005 sp.

Zn. PL. ÚS 63/04 (N 61/36 SbNU 663; 210/2005 Coll.) ^*]. The Constitutional Court in the

under this test examines whether should gradually the municipality the power to issue

the contested provisions of generally binding decrees (1. step test), whether the

the village when issuing the contested provisions of generally binding decrees

moving outside the law defined the scope of the material, i.e., whether the

Act ultra consider vires (step 2 test), whether the village when their issue

abuses by law conferred on her the scope (step 3 test), and finally, whether the

the adoption of the contested provisions of the Village Act manifestly unreasonable (step 4

test).



EVEN IN THE.



Assessment 1. step test



30. The Constitutional Court under the first step of the test said that the municipality has released

in case of general binding Decree, on the basis of its authority under article.

paragraph 104. 3 of the Constitution. In this context, the Constitutional Court notes that

that provision empowers the community to originární normotvorbě, and thus to

its release is not required express statutory authorization [cf. for example.

find of the day 17. August 1999, SP. zn. PL. ÚS 5/99 (N 112/15 SbNU 93;

216/1999 Coll.) or the discovery of 11 September. December 2007 SP. zn. PL. ÚS 45/06

(N 218/47 SbNU 871; 20/2008 Coll.)].



(II) IN THE.



In terms of assessment 2. and (3). step test



31. The Constitutional Court also reviewed the contested provisions from the standpoint of 2. and (3).

step test. As already mentioned, in the second step, whether

the village in their move Edition ultra consider vires, i.e.. among the factual

the scope of her stage Act. As already mentioned above, the basis for

regulatory powers of the municipalities in the area separate the scope of the article is right.

paragraph 104. 3 of the Constitution. The legal divorce is contained in the provisions of section

10 of the law on municipalities, which defines the substantive areas in which is the village
entitled to no further legal authorization to form the right.



32. This provision directly defines three areas in which the municipality may, without

additional legal authorization to issue generally binding decrees; to

Security on local matters of public order may specify the municipality

which activities that could disrupt public order in the village or in the

contrary to good morals, the protection of safety, health, and property can be

only in places and in a time of generally binding Decree,

or, some of the public spaces in the municipality are

such activities are prohibited [section 10 (b) of the Act on municipalities)]; Furthermore, it is

authorised to lay down the conditions for the organisation, conduct and their

the public accessible sporting and cultural undertakings, including

dances and discos [section 10 (b)), of the Act on municipalities]; It can also

to provide for the obligation to ensure the maintenance of cleanliness of streets and other

public spaces, to environmental protection, green

buildings and other public green space and to use the facilities of the municipality serving the

the needs of the public [section 10 (b), (c)) of the Act on municipalities]. Finally, section 10

(a). (d)) of the Act on municipalities shows that more substantive area separate

the scope of the municipalities can be modified also by special laws.



33. For all of the above factual area separate the scope of

at the same time, the subject of the regulation may be the only local

Affairs, which regulates in the interest of the municipality, the municipality and citizens of the village, not

the Affairs of the wider (national) importance.



To the article. I Decree



34. In the present case, it is a situation, when the municipality of contested decree by reference

on your already existing legislation relating to the so-called. gaming

instruments (AWP) in Decree No. 4/2009 of December 31. 8.2009 expanded this

the regulation on the so-called. videoloterijní interactive terminals (ILV) (article. (I)

the contested Decree) and at the same time stated that its purpose is to ensure that

in the territorial jurisdiction of the city was invalidated all of the permits in the past, or

in the future, issued by the Ministry of Finance of the Czech State supervision

of the Republic (article. (II)).



35. While the applicant is of the opinion that the so-called. Interactive videoloterijní

terminals do not meet the legal definition of the prize of the device, and

Therefore, the municipality is not authorized in § 50 paragraph mode. 4 – the law in

generally binding decree to regulate their operation, on the contrary, the city

Chrastava took in its comments that the videoloterijní terminals

they are a specific type of gaming devices.



36. The Constitutional Court is aware that this is a question which is already longer

for the subject of disputes between representatives of municipalities and the Ministry of finance, as the

answering this question has other implications to the Act defined

power to issue a permit for the operation of the equipment in accordance with section 18 or

§ 50 paragraph. 3 lottery law.



37. the concept of gaming devices is the lottery law, defined in the

the two provisions, and that in paragraph 2 (a). (e)), which is

This concept is used as an acronym for "legislative designation of betting

the games operated by using an electronically controlled or elektromechanicky

gaming devices or similar device ", and then

again defined in § 17 paragraph. 1 – the law, according to which it is

the "compact, functionally indivisible and programmatically controlled technical

with control device intended only for one player, with

Prize of the devices with the software enabler

the current game on more slot sites more players is each such Board

the place is also considered a separate slot slot machine ".



38. While the provisions of section 2 (a). (e) the Act defines winning lottery)

the playing of the instrument (VHP) widely, because under this term also includes

any device similar to the electronically controlled or elektromechanicky

the devices, the definition contained in § 17 paragraph. 1 is very

narrow and basically kasuistická. In other words, the lottery law works with

one concept, that is, however, defined two different ways. For

such a situation cannot make do only with plain language interpretation, but

It is necessary in the interpretation of these provisions to apply other types of

the interpretative methods, and in particular the method of systematic and

teleologického interpretation.



39. A systematic interpretation of the account of the structure of the landed legislation

standards and their inclusion in the entire context of the legislation. From this

point of view is the lottery law consists of two structural parts, actually, and

This initial and final provisions, which in general terms defined

and govern the Affairs of the joint for the regulation of all types of lotteries and

other similar games, and special parts, which are specifically

adjusted individual, explicitly listed types of lotteries and other

similar games.



40. While section 2 (a). (e)) as well as section 50, paragraph. 4 – the law

These are the components of the General and common parts, § 17 paragraph. 1 is

on the contrary, inserted into one of the special parts of the governing authorisation

modes of individual types of lotteries, in this case the slot

musical instruments, which are defined in § 17 paragraph. 1

Lottery Act. In other words, while the narrow definition contained in section 17

paragraph. 1 – the Act is applicable only in the context of the provisions of the

contained in part two of the Lottery Act marked another "Winning

playing instruments ", a broader definition of gaming devices pursuant to section 2

(a). e – law is the applicable law) in the context of the General

and the common parts of the lottery law, i.e.. the first section marked "Splash

"and part of the sixth headed ' provisions common, transitional and

the final ".



41. A systematic interpretation of the Lottery Act therefore leads to the conclusion that the

While the narrow definition in the second Lottery Act turns out to

authorisation procedure under section 18 et seq.. Lottery Act, a broader definition of

contained in the introductory provisions shall apply in the context of other

common transitional and final provisions contained in the final

part of the sixth. If the law on lotteries in § 50 paragraph. 4 allows the municipalities in

generally binding Decree stipulate that the winning slot device may be

operated only in places and at a time designated by Decree, or

determine on which publicly accessible locations in the village is the operation of the

gaming devices is disabled, then it is for the definition of winning

the playing device crucial provisions of section 2 (a). Lottery Act,)

not the provisions of § 17 paragraph. 1 of the same law, which-as already mentioned-

turns out only to the authorisation referred to in part two.



42. This conclusion also supports an interpretation of the law – teleologický

or follows from the rationale for the purpose of zohled €, which apparently led the legislature to

to insert the provisions of § 50 paragraph. 4 in the Lottery Act. This provision

the law was given, along with the amendment contained in Act No 148/1998 Coll.

with effect from 1 January. 1. in 1999, while there is no doubt that the intention of

the legislature was to strengthen the role of local authorities as regards the definition of the

the conditions under which this type of lotteries, permit the State administration; in

this context cannot be ignored, nor the fact that it happened at the time,

When this was the case-law of the Constitutional Court, which, for the reasons already

detail landed in finding SP. zn. PL. ÚS 45/06 of 11 April. 12.2007

(N 218/47 SbNU 871; 20/2008 Sb.) basically have originární

the nature of the standardisation of the municipalities based article directly. paragraph 104. 3 of the Constitution, and

also the existence of the required special legal authorization. The constitutional

the Tribunal is therefore of the opinion that the special provisions contained in the Act on

Lotteries should be given, if possible, be interpreted extensively,

that was filled with the original purpose, which was being monitored by this provision, i.e..

the enforcement of the protection of local matters of public policy. (In this

context cannot be disregarded nor the compelling argument of public

the Ombudsman, in view of the purpose of the legislation is not to be significantly

accentuate the complex accompanied-technical questions concerning the differences between the

The AWP and ILV.)



43. The Constitutional Court is acquainted with the arguments of the claimant, předestřenými

from the data submitted by the Ministry of finance. In accordance with this

the description consists of only one part of the videoloterijní terminal of the electronic

the system, which is made up of a central control unit, the local control

Unit and constructed an unlimited amount of videoterminálů as

Terminal units, which conceived the electronic system consists of

a functionally indivisible. The connection between the Central Server and

videoterminály is provided through remote online communication

Network (the Internet) in such a way that both parts of the system during the

the game constantly in conjunction; the gaming process, however, does not in the end

device (videoterminálu), but in the central control unit

(Central Server).



44. The Constitutional Court, on the basis of the description of the devices came to the conclusion that the

nature does not allow their podřazení under the ILV narrow definition Prize

the playing of the instrument pursuant to § 17 paragraph. 1 – the law, since the
videoloterijní terminals as the end game stations, which are

part of a larger and more complex the system, the kernel is placed

centrally, lack the property of compactness, which requires a definition of the

contained in § 17 paragraph. 1 – the law. However, nothing to prevent

were podřazeny under the broader definition under section 2 (b). e) lottery

the law, as no doubt it is a device slot gambling devices

similar to and serving the same purpose.



45. In this connection, the fact cannot be ignored, the fact that between the VHP and

ILV does not exist on the external view of no fundamental difference, the difference is

given just to the internal arrangement of the equipment when the videoloterijní Terminal

do not form enclosed and separately functional unit, but is part of a larger

the electronic system. For this reason, as already noted above, the

This type of device cannot be accommodated under the definition of game playing

the device referred to in § 17 paragraph. 1 – the law. This fact

It should be taken into account in the case of its own, no doubt the permitting

control, when it is desirable to make this a whole ruled a factually and

locally, the competent authority, not an indefinite number of administrative authorities in the

Depending on the location of the individual components of the system in

each of the municipalities in the Czech Republic. This property, however, ILV

be an obstacle to a municipality generally binding Decree determined on the

which places on its territory can be individual components of the system

operate.



46. In the opinion of the Constitutional Court is therefore permissible, to the municipality,

feeling the need to regulate such local, generally binding

by a decree issued under section 50, paragraph. 4 – Act in conjunction with section

2 (a). (e)) of the same law, the location and, where applicable, other devices, ILV

similar game playing devices, as part of a broader set of

instruments, to which the permit is issued by the Ministry of Finance according to the

§ 50 paragraph. 3 lottery law. The Constitutional Court therefore found that the regulation of

the location of the falls within the regulatory scope of the ILV municipalities, in accordance with the

the provisions of a special law, as it has on the mind and section 10 (a). (d)) of the law on

the municipalities.



47. The application of such powers and competence of the municipalities therefore does not constitute

in the opinion of the Constitutional Court of unlawful interference in the exercise of State power, respectively.

the State administration. The release of generally binding decrees the village does not interfere in any way

to their own decision-making powers of the Ministry, which is competent in the

If inominátních lotteries and other similar games, that is. the device,

which do not meet the definition under § 17 paragraph. 1 – the law, however,

at the same time are similar to those devices, to assess the compliance with all the requirements of the

resulting from the first to fourth section of the law, as indeed, the stores section

paragraph 50. 3 lottery law. In other words, the regulation in the form of General

binding decrees the village takes decisions on authorisation of ILV, pursuant to part

the second Lottery Act; the release of generally binding decrees laying down

the places where you can in the village of terminal equipment, interactive videoloterií

run only the municipality lays down, inter alia, in order to protect local

a matter of public order, certain constraints, which must

decision of the Ministry of the move.



48. The Constitutional Court therefore came to the conclusion that the municipality is authorized to regulate the

the location of the ILV on its territory, while the adoption of such legislation, the municipality

not consider vires ultra.



49. Furthermore, the Constitutional Court proceeded to the assessment, as in the present case

the assessment criteria together closely related and blend in a logical whole,

whether the municipality had not abused the law conferred on her the stage a separate substantive

the scope of the. Exploit this scope represents the exercise of power in the law

field 1. the way tracking purpose, which is not by law

aprobován, or 2. the way of ignoring relevant considerations when adopting

the decision, or on the contrary 3. taking into account considerations [see nerelevantním find

SP. zn. PL. ÚS 63/04 of 22 December. March 2005 (N 61/36 SbNU 663; 210/2005

SB.)].



50. In the present case, the Constitutional Court in particular weighed whether the formulation is not

contained in the article. And the contested Decree is contrary to the above

requirements, and whether, therefore, it is a misuse of powers. Custom content

the provisions of the article. And indeed, the Decree expressly podřazuje interactive

videoloterijní terminals under the category of gaming devices, as

It is defined in the Lottery Act, which the first footnote

refers to how the provisions of section 2 (a). (e)), so the section 17 paragraph. 1

Lottery Act.



51. First, the Constitutional Court in its case-law has already stated that the comments below

the line do not have binding legislative character, so the inaccuracy of the link

which contain, is not for the assessment of standards as such.

In addition, the perceived materially, such adjustment to the contrary to the top-

referred to the conclusions of the Constitutional Court is lacking, since on the contrary aproboval

the power of municipalities to regulate generally binding Decree, although the location of the ILV

only on the basis of the definition contained in article 2 (a). (e))

Lottery Act. It would be so simple, if using the formalism of the constitutional

for this reason only, the Court proceeded to cancel the article. I Decree

If the municipality immediately to adopt a decree de facto the same

the normative range, but without express reference to § 17 paragraph. 1

Lottery Act. The scope of the abuse, then you cannot find even in the link

the existing generally binding Decree, which regulates the placement of

gaming devices. This technique is

legislatively-technically inappropriate, but not illegal.



52. The Constitutional Court was introduced with the contents of the Decree No. 4/2009 of December 31.

8.2009 fixing the places where winning can be operated

the playing of the instrument, on which article. And the contested Decree refers, and found that the

the content of the Decree. The Constitutional Court therefore

notes that the contradiction with the third step of the test in the case of the article. I Decree

could not detect.



53. However, despite this conclusion cannot leave the Constitutional Court completely without

Noting a footnote No 2 and 3, in which the town of Chrastava

expresses to the competence of the Ministry of finance and the Ministry of the Interior in

essentially calls for the submission of the proposal on the assessment of the Decree of the Constitutional Court.

The purpose of the regulation by generally binding decrees is standardization

the activities, which are carried out on the territory of the municipality, and that with regard to the

a better knowledge of the local situation, the legislature entrusts to the competence of the community,

so to make this regulation fell into the disposition of political representatives

the citizens of the village, and at the same time was closer to them. The purpose of the municipal standardisation is

Thus this intention to the legislature, with ústavodárce and

addressee of generally binding decrees are naturally individuals, IE.

natural and legal persons. Generally binding decrees as legislation

originární nature should therefore not serve as carriers of messages

the Municipal Council of the municipality of other public authorities, whether the City Government

motivated by any intention. Although the Constitutional Court has traditionally been against

the legislative quality of generally binding decrees more tolerant, appeals

on the village to their formation and formulation were above

postulates.



URV.III



Assessment 4. step test



54. The Constitutional Court finally examined the provisions of the article. I decree that

would stand up in the previous steps of the test, in terms of the criteria of reasonableness.

When this assessment was the Constitutional Court recognized the legal conclusion resulting

already from SP. zn. PL. ÚS 57/05 of 13 June. 9.2006 (N 160/42 SbNU

317; No 486/2006 Coll.), according to which "the application of the principle was '

the parties to the Court must be very restrictive and should be limited to

cases where the decision of the village seem as obviously absurd. For obvious

can be considered as just the absurdity of the case when the Court conducted

review leads only to a single potential (as opposed to the preferred or

sensible), which is an absurd conclusion, and the conclusion of this Court recognized

on the contrary, the municipality remained unrecognized. The criterion was not to be

used as a pretext for intervention in the communities adopted by the decision, therefore, that the

The Constitutional Court with the decision of the municipality of factually disagrees. The application of the principle of

was therefore applicable only under extreme circumstances, may not

only be possible by another opinion, without at the same time refuted maybe

the reasonableness of the opinion of the community. The assessment of whether the municipality acted sensibly, not

simply a matter of whether it acted in accordance with permission granted by her

by the law. The assessment was rather requires to consider the case

a decree from the standpoint of its impact measured General wisdom. " [cf..

also find SP. zn. PL. ÚS 11/09 dated May 7. 9.2010 (no 304/2010 Sb.)].

The Constitutional Court of the application of these standards to the article. The Decree also came to

the conclusion that even in the light of these criteria.



(IV) IN THE.



To the article. (II) Decree



55. As regards the wording of the article. II. 2 of the Decree, the Constitutional Court completely

accepted the Ombudsman's argument, namely that any

"revocation" decision of the Ministry of finance is not a matter of municipal

self-government. As already indicated, the power of municipalities to establish generally binding

the Decree places on which it can be videoloterijní terminals in the village

operated, no way does not question the authority of the Ministry of finance
to issue the authorisation decisions referred to in section 50, paragraph. 3 – the law and

You cannot allow such a challenge to the generally binding Decree

It contained. Tools, how to, where appropriate, to achieve the cancellation of the permits issued

The Ministry of finance, if they find themselves in conflict with a generally binding

the decree modifies either the administrative code (in particular the provisions of section 94 et seq..

governing the so-called. the review procedure), or rather whether the lottery

the Act, which in article 43 paragraph. 1 lays down the obligation of the authority

the lottery or some other similar game, cancel the authorization if

subsequently arise or come to light the circumstances for which it was not

possible lottery or other similar game to allow. The Ministry will then

the Treasury, in specific cases in order to assess whether the existence of a generally

binding decrees, whether adopted before a decision on authorisation

or after it, is the reason for the cancellation of the permit, in particular with regard to the

other constitutionally defined principles. The specific assessment and weighting of these

the principles now cannot anticipate, but in principle, the operators of the

These devices had to be aware of the existence of the provisions of § 43

Lottery Act, and therefore the fact that it can be basically

at any time, if in the course of the validity of the permit the circumstances excluding the

the operation of these facilities, this permit deprived.



56. With regard to the above, the Constitutional Court found that the inclusion of the article. (II)

paragraph. 2 to the generally binding decrees Chrastava was ultra consider vires,

and therefore the provisions in the second step of the test stand up.



57. Due to the fact that article. II. 2 Decree challenge in

the second step of the test, the Constitutional Court weighed whether the reasonable meaning of

maintain in force the provisions of the article only. II. 1 of the Decree, which

the applicant has not challenged. (It sounds: 1. Ensure public

fine.) Finally, the Constitutional Court to cancel all the provisions of the article. (II)

Decree No. 5/2009 did, because-according to his beliefs-

diction: the purpose of the Decree, paragraph. 1 "to ensure public order." i alone

each sense.



VI.



The conclusion of the



58. For the above reasons, the Constitutional Court came to the conclusion that the provisions of the

article. II. 2 Decree was issued outside the substantive scope of the village, and therefore

It is under section 70 paragraph. 1 of the law on the Constitutional Court, including footnotes

No. 2, to which this provision reference, set aside. As regards the

the provisions of the article. And the Decree was a proposal for its cancellation under section 70, paragraph. 2

Constitutional law rejected.



The President of the Constitutional Court:



JUDr. Rychetský in r.



* Note. Red: a collection of findings and resolutions of the Constitutional Court, Volume 36,

finding no. 61, p. 663, promulgated under Act No. 210/2005 Sb.