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.