512/2004 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 18 July 2005. August 2004 in plenary on the draft group

Senators Senate of the Parliament of the Czech Republic to repeal decrees

The Ministry of Finance No. 491/2001 Coll., amending Decree of the

The Ministry of Finance No. 125/1993 Coll., laying down the conditions and

the rate of the statutory insurance employer liability for damage when the

an industrial accident or occupational disease, and on the proposal of the Minister of finance

repeal of section 205d of the labour code and the repeal of Decree No. 125/1993 Coll., on

as amended,



as follows:



I. proposal for a group of Senators Senate of the Parliament of the Czech Republic for annulment of

the Finance Ministry No. 491/2001 Coll., amending Decree of the

The Ministry of Finance No. 125/1993 Coll., laying down the conditions and

the rate of the statutory insurance employer liability for damage when the

an industrial accident or occupational disease, is rejected.



II. proposal of the Minister of Finance on the repeal of section 205d of the labour code and on the

abolition of Decree No. 125/1993 Coll., laying down the conditions and rates

the employer's legal liability insurance for damage when the

an accident or an occupational disease, as amended, is dismissed.



Justification



(I).



The definition of things and a recap of the proposal



The Constitutional Court was on 20. March 2003 served a group of Senators

Senate of the Parliament of the Czech Republic for annulment of the Decree of the Ministry of

Finance no 487/2001 Coll. (hereinafter "Decree No 503/2001 Coll.), which

Decree of the Ministry of finance is changing no 125/1993 Coll. (hereinafter also

"Decree No 124/1993 Coll.), which provides for the conditions and rates

the employer's legal liability insurance for damage when the

an injury or occupational disease.



The applicant at the outset, recapitulates the content of the decrees in question no 487/2001

SB. States that the amended provisions of section 16 of Decree No. 125/1993 Coll.,

by reducing the amount of so-called. Administrative Director from 25% to 13.5% of the total

the employer paid premiums received in that calendar

year, and changing the amount of the premium rates for all categories in annex No.

2 Decree No. 125/1993 Coll. of the calculated economic activities, but in

different amounts. Notes that the Decree No. 125/1993 Coll., as well as its

the amendment was issued on the basis of the mandate contained in paragraph 205d paragraph. 7

of the labour code.



The contradiction of the contested Decree No. 491/2001 Coll. with the constitutional and legal policy

the applicant in the infringement of constitutionally sees prescribed how

adoption within the meaning of § 68 para. 2 Act No. 182/1993 Coll., on the constitutional

the Tribunal, as amended, and the infringement of article 81(1). paragraph 79. 3

The Constitution of the Czech Republic (hereinafter referred to as "the Constitution"). According to his beliefs

The Ministry of Finance upon the adoption of the contested Decree fail to do so, the competent

the legislative procedure.



According to the provisions of § 23 para. 2 of the labour code proposals of laws and

proposals for other regulations relating to the important interests of the

workers, in particular economic, production, employment, payroll,

cultural and social conditions, to discuss with the relevant Central

trade authorities and competent organisations of employers.

The applicant in doing so, the contents of the podřazuje Decree No. 487/2001 Coll. under the framework

as defined by § 23 para. 2 of the labour code and pronounced the view according to which the

the provisions of this Decree are without prejudice to economic, labour and social interests

employees, since the increase in compulsory insurance affects negatively the level of

Payroll growth and possible social advantages which could be otherwise

reach for example. in the context of collective bargaining. For that conclusion

reflects the fact that the design of the decrees in question was the Ministry of

Finance circulated within the question of Czech-Moravian

the Confederation of trade unions and the Confederation of industry and transport of the Czech

of the Republic. Violation of § 23 para. 2 of the labour code, then the applicant

sees in the circumstances, that the draft decree was presented to another

trade unions or employers ' organisations, although this

turns out, the decree which follows already from enumeration of economic activities

calculated in the annex to the Decree, not only on the employer in

The Confederation of industry and transport, but also many of the other

employers ' bodies, which are grouped in other organizations

of the employers. In particular the failure replies

Zaměstnavatelskému the Association of mining and oil industry and Community

těžařů of the Czech Republic.



For this reason, the rapporteur believes that the proposal in question

the Decree was not discussed with the "relevant employers ' organizations",

and for those to be considered by him to those organizations that have

sufficiently representative status in relation to the types of economic

the activities that they perform.



In addition, the applicant argues that even the fact that even in the case of the Czech-Moravian

Confederation of trade unions and the Confederation of industry of the Czech Republic

There has been such a discussion of the draft decree, which requires a code

work. However, the words "consideration" contained in the provisions of § 23 para.

2 of the labour code does not follow the making of the adoption of the draft agreement

stakeholders, however, according to appellant, it would be referred to

statutory provisions in principle, unnecessary, unless it linked the need for

take into account the possible objections, to evaluate them, as well as to discuss these

objections with stakeholders and inform them of the

conclusions. In this connection, the applicant States that the Union of transport and

the industry proposal was sent to the decrees in question 20. November 2001,

that the comments should be sent to 22. November 2001, i.e.. within two days

(although the legislative rules of the Government lays down the 15 day time limit for the submission of

comments), and Decree No. 487/2001 Coll. has been published in the

The collection of laws on 20 April. December 2001 and the efficiency gained 1. before 1 January 2002.



The appellant, in addition to violating the constitutionally prescribed method of adoption

the contested Decree argues its contradiction with the constitutional principles of equality and

of proportionality. States that the increase in premiums was carried out

unevenly. for the economic activities referred to under code

10.1, 12, 13 of the classification of economic activities (hereinafter referred to as

"SIC") has increased by more than four times, while for all

the other a maximum of a quarter. This non-uniformity then finds

rozpornou with the requirement, according to which any differences must be factually

It is supported by, for example. demonstrably higher risk profile. This adjustment were

in the opinion of the applicant, therefore, certain employers are significantly more

load than others, without even a greater degree of fit

the likelihood of injury or occupational disease.



In conclusion, the appellant repeatedly stresses both his alleged derogatory

reasons, or to violations of the constitutionally prescribed method of adoption of the contested

the Ordinance, as well as its content conflict with the constitutional order, therefore

proposes that the Constitutional Court accepted the award, by Decree of the Ministry of

Finance no 487/2001 Coll., amending Decree of the Ministry of finance

No 125/1993 Coll., laying down the conditions and rates of legal insurance

the employer's liability for the damage in an industrial accident or disease

the profession, shall be deleted.



II.



Recap the essential parts of the representation of a party to the proceedings



The challenge filed the Constitutional Court under section 69 of Act No. 182/1993 Coll., on

as amended, the Minister of finance.



He stated that the employer's statutory liability insurance for damage

When an industrial accident or occupational diseases is regulated by the provisions of §

205d of the labour code and Decree No. 123/1993 Coll., as amended

regulations and in terms of the origin of this insurance even remind section 789

of the civil code, as well as the specific feature of the statutory insurance, i.e..

the fact that it arises automatically, i.e. without any expression of will of his subjects,

If the fact that legislation conflates the creation of this

insurance. He pointed out the critical opinion of the Ministry to constitutionality

of the statutory insurance, which found expression in the opinion on the

the inspection conclusion the Supreme Audit Office of the control action 00/17

focusing on the management of the resources of the legal liability insurance

the employer for the damage in an industrial accident or occupational disease.

This critical view is based, in particular, on the plea of denial of the principle of

equal conditions of participation in the competition, since the legal

insurance may carry only two private insurance companies designated by law,

without the law stipulated the conditions for their selection, the closer on the opposition

Edit the definition of an indeterminate material damage, or surplus, which are

the expression of the economic outcome of the operation of the statutory insurance

the previous year, and do not provide a basis for the assessment of the economic results

insurance companies, as well as to the plea of the indeterminate legal authorization

The Ministry of finance to issue decrees to modify the detailed conditions and

premium rates. The Minister of finance considers the legal insurance in

the conditions of the market economy for the anachronistic and points to the positive

experience with the application of compulsory insurance, for example. for lawyers and

patent attorneys.




A party to proceedings in the comments points out a discrepancy adjustments contained in the

the provisions of section 205d of the labour code, the basic principles of the private

insurance in force in the European Union, as well as to conflict with the community

competition rules [article 86 (b), (c)) of the Treaty establishing the

The European Community], since the legal advantage of two insurance companies

authorized to engage in legal liability insurance in

an industrial accident or occupational disease creates an inequality

the conditions in the market offer of insurance products.



On the basis of this critique of the existing legal provisions, contained in the 205d

the labour code, in representation of the pronounced astonishment at the fact that the

promoters of ignorance of these systemic failures by the existing legal

editing.



The draft itself then a participant in the first series of notes that the reason

the amendment to Decree No. 125/1993 Coll. resulted from material Analysis

the cost of insurance on administrative overhead the statutory liability insurance

the employer for the damage in an industrial accident or occupational disease,

submitted on 31 December 2004. October 2001 the Government for information. On 1 January 2004. January

2002, namely the Ministry of Health's decree came into force from the date of

November 30, 2001, no 440/2001 Coll. on compensation of pain and disfigurement

social application, which replaced the Ordinance of the Ministry of

health care no 32/1965 Coll. on compensation of pain and disfigurement

social application, as amended. Decree No.

440/2001 Coll., which was at the time the contested Decree of the Ministry of

Finance no 487/2001 Coll., in the final phase of the legislative approval

the process has increased the value of the point of the $ 30 to $ 120 reviews

health damage to an accident at work or occupational disease, and

increase the number of points according to individual health. The impact of these

changes to the legal question of the insurance from a party

necessary to eliminate the increase in premiums, and with effect from 1 January. January

2003 that the insurance paid by employers for the first quarter reflect the

the newly defined conditions.



The Finance Minister does not share the applicant, according to which the claim

violations of the constitutionally prescribed method of acceptance with the Decree of the Ministry of

constitutes an infringement of article. paragraph 79. 3 of the Constitution. The purpose of this constitutional maxims is

According to him, to prevent the base rights and impose obligations otherwise than by the law

and in its limits. The appellant further notes that the empowering

provisions for the issue of the decrees in question is section 205d paragraph. 7 of the code

the work, with the obligation provided for in § 23 para. 2 of the labour code on the

its adoption doesn't work. The content of the contested Decree is to change the administrative rates

direction and change the premium rates, while in the first case it is the

cost of insurance undertakings, in the second then a cost item

of the employers. In any case, according to the Minister of finance were not given

the Decree without prejudice to the important interests of the employees. In the observations is further

emphasized the purpose of the decrees in question, as well as time-extreme situation

due to the length of the process of the adoption of the Decree of the Ministry of health

for compensation of pain and disfigurement redeeming social, which were

the reason for the short question, in which the Ministry of

Czech Moravian Confederation of finance to home of trade unions and the Union of

industry and transport of the Czech Republic. For the listed party

expresses the view that, in the case of the adoption of Decree No. 491/2001 Coll. did not

in violation of the constitutionally prescribed method of its adoption.



To the objection of inequality and violation of the principle of proportionality, the participant

management States that a more pronounced increase in insurance premiums (4.2)

has revealed the need for those economic activities which in the long term

show the most adverse claims (in coal mining was in

2000 insurance benefits 778.9% of premiums, in the mining of uranium

509.0% and in mining ore 118.6%). In addition to the actually paid

claims for the year 2000 was reflected increasing point values for

painful and aggravating social application, while the Decree

The Ministry of health is increased and the number of points according to individual

damage to health. Finally, you asked for rate increases and negative development

paid claims, which grew faster than the received

premiums, and in 2001, he was already expecting a deficit from the operation of

statutory insurance in the amount of approximately 171 million. That needs to be replaced

insurance from the State budget. Legal insurance is

powered by: System. ongoing funding from the insurance

paid in that year shall be paid to the claims of damaged employee

payable in the accounting period, regardless of when the damage occurs. It

means that the premiums paid by the employer are covered damages,

that occur often at a time when the employer did not yet exist.

Such a system, according to the Minister of finance can be operated only under the

provided that the guarantee for the payment of damage to each other will take over the State. The value of the

the commitments as follows during the duration of the statutory insurance, established and

that are not covered by insurance, but the only guarantee of the State, roughly

22 billion. CZK.



According to the party to the proceedings, the application of principle of equality and proportionality in

the meaning of the proposal of the applicant has led to even greater distortion of the system and

the unauthorized transfer of the costs associated with the payment of damages from

areas with significantly higher incidence of damage to areas less injury. However

in this way the insurance-based has considerable weight to the principle of solidarity, yet

It cannot be ignored either the principle of equivalence.



Having regard to the reasons the party thus landed rejects the justification

the claimant's argument, put forward in relation to the Decree No. 487/2001 Sb.

and proposing to repeal section 205d of the labour code for its non-compliance with the Constitution, and

including Decree No. 123/1993 Coll., laying down the conditions and rates

the employer's legal liability insurance for damage when the

an accident or an occupational disease, as amended by later regulations.



III.



The Ombudsman's intervention



According to the provisions of § 69 para. 2 Act No. 182/1993 Coll., as amended by

amended, the proposal in question was on 10. April 2003 posted

The Ombudsman, who but their permission to enter the proceedings in

the position of the intervener.



IV.



Regulation of an oral hearing and a replica of the petitioner to the observations of the participant

control



According to the provisions of § 44 para. 2 Act No. 182/1993 Coll., the Constitutional Court may

with the agreement of the participants to refrain from oral proceedings, if, from this

the negotiations expect further clarification of the matter. Due to the fact that the

that provision can be applied to the assessment of the case, the constitutional

the Court has requested from the parties to the proceedings, whether he agrees with the observations

abandonment of the oral proceedings. Submission of 24 June. March 2004 Ing. (J).

W., CSc., Deputy Minister of finance, for the party to the proceedings expressed with

the draft of the Constitutional Court; In contrast, administration of 8 June. April

2004 the rapporteur spoke with the abandonment of the oral proceedings the opposition,

Therefore, it was ordered to a hearing on the matter.



In the submission of the applicant in addition to the representation of a party to the proceedings

States that the provisions of section 205d of the labour code considered to be non-conforming with

fundamental constitutional requirements on the range, which must materie

be adjusted to the legal level, but at the same time its cancellation, as well as

cancellation on the downstream regulations of the Ministry of finance

would in its view the situation has not improved since, at the time of filing the application for

abolition of Decree No. 491/2001 Coll., there was no proposal for a new legal

Edit of the issue. The efforts of the applicant is therefore focused on the

cancellation a mere amendment of Decree No. 487-/2001 Coll., amending the

Decree No. 125/1993 Coll., since this Decree has not been adopted by the

The Constitution, in the prescribed manner (article 79, paragraph 3, of the Constitution), and unlike

an earlier edit violates the principle of equality. Furthermore, the applicant does not consider the

the party actively legitimovaného to submit a proposal for the cancellation of the

the law (article 64, paragraph 1, of Act No. 182/1993 Coll., as amended

regulations), and points to the fact that he could initiate

the amendment of the relevant provisions of the governmental draft bill on the way,

or could the necessary change to take advantage of some of the amendments to the labour code of the

in the recent years.



According to the findings of the petitioner, the Ministry of labour and Social Affairs has begun

work on the substantive intent of the legislation, according to the employees.

that would give the administration of policies should be entrusted with the administration of social

Security. However, the competent material on 31 December 2004. March 2004

According to the Government, the applicant discussed is not in a form that would be

can be expected in the foreseeable future the adoption of the relevant law.



From the observations of the interested party in the opinion of a group of Senators means that to

discussion of the decrees in question with the relevant employers ' organizations

to a sufficient extent there has been, since its proposal was posted only

two bodies, the Czech-Moravian Confederation of trade unions and


Confederation of industry of the Czech Republic in the framework of the "summary

question ". Therefore, it is beyond doubt that the other organization

bringing together employers have not been addressed, which is seen as a

violation of § 23 para. 2 of the labour code. As regards the specific amount

premiums expressed in per mille, the applicant considers that, from the

representation of the party a convincing manner are the reasons for the

change the amount of the premium, in particular, there is no clear relationship between the increase in

insurance activities No 10.1, 12 and 13 by SIC code 4 times (in the

other cases only 1, 4 times) and the volume of claims

performance in these sectors of activity.



However, according to existing case-law of the Constitutional Court in principle is not

permissible to propose the abolition of the amendment of the legislation [resolution

The Constitutional Court, SP. zn. PL. ÚS 24/2000, a collection of findings and resolutions

The Constitutional Court (hereinafter referred to as "the decision"), volume 19, usn. # 27]

due to the fact that the reasons for the cancellation of the Decree No. 487/2001 Sb.

perceived mainly in procedural terms, according to the legal opinion of the Group

Senators cannot, in principle, to challenge the amendments in the original

legal Act (Decree No. 123/1993 Coll.), as this legal

the reasons of unconstitutionality do not apply [referring to respond

the Constitutional Court in the award procedure no 476/2002 Coll. (SP. zn. PL. ÚS 5/02,

Collection of decisions, Volume 28, finding no. 117].



Of all the reasons given in the reply, the applicant for annulment of Decree No.

483/2001 Coll., amending Decree No 125/1993 Coll., takes.



Beyond the arguments contained in the proposal and in the reply to the observations of the

the party at the oral proceedings, the appellant pointed to the reduction in the

the rate of accidents in the mining industry, and this without the said claim made

Constitutional Court of the burden of the proposal.



In the.



The diction of the contested legislation



The Ministry of finance Decree No. 487/2001 of 20 July. December 2001,

amending the Decree of the Ministry of finance regulation No 125/1993 Coll., which

lays down the conditions and the rate of the statutory liability insurance

the employer for the damage in an industrial accident or occupational disease, in the

as amended, reads as follows:



"The Ministry of Finance shall determine pursuant to section 205d paragraph. 7 of the labour code:



Article. (I)



Decree No. 125/1993 Coll., laying down the conditions and rates of legal

employer's liability insurance for damage or occupational

occupational disease, as amended by Decree No 43/1995 Coll., Decree No.

98/1996 Coll. and Decree No. 74/2000 is amended as follows:



1. in article 1, paragraph 4, including footnote 2) is repealed.



2. In paragraph 16, the number "25" is replaced by "13.5".



3. in annex No. 2 under the column headed "of the calculation basis in the

per mille ", the number" 12 "is replaced by" the "," number 50.4 7 "is replaced by

"9.8", number "6" is replaced by "8.4", number "5"

replaced by the number "7", the number "3" is replaced by "4.2", "2",

by "2.8", number "7.5" are replaced by "10.5" and the number

"4" is replaced by "5.6".



Article. (II)



Transitional provision



If it was on the insurance for 1. quarter of 2002 paid before the date of

January 1, 2002 less than provided by this Decree, the employer

insurance premiums payable until 31 December 2006. January 2002 up to the amount specified in article. (I); If there was a

This insurance is paid in an amount greater than the amount of the premium for the 1.

quarter of 2002 provided for by art. Also, the insurance company employer

overpayment, without undue delay, return.



Article. (III)



The effectiveness of the



This Decree shall enter into force on 1 January 2000. January 1, 2002.



Minister:



Ing. Samantha r in r. "



Vi.



The conditions of the locus standi of the applicant



Application for annulment of Decree of the Ministry of Finance No. 487/2001 Coll., which

Decree of the Ministry of finance is changing no 125/1993 Coll., which

lays down the conditions and the rate of the statutory liability insurance

the employer for the damage in an industrial accident or occupational disease, in the

, as amended, was filed by a group of twelve Senators Senate

The Parliament of the United Kingdom and therefore in accordance with the conditions contained in the

the provisions of § 64 para. 2 (a). b) Act No. 182/1993 Coll., as amended by

amended. In the case on the side of the applicant can therefore

clear fulfillment of locus standi.



VII.



Constitutional competence and conformity of the legislative process



The Constitutional Court in accordance with the provisions of § 68 para. 2 Act No. 182/1993

Coll., as amended, is in proceedings for review of the standards required to

to assess whether the challenged another law was adopted and issued within the limits of

The Constitution laid down the competence and constitutionally prescribed way.



The Ministry of finance Decree No. 487/2001 Coll., amending Decree of the

The Ministry of Finance No. 125/1993 Coll., laying down the conditions and

the rate of the statutory insurance employer liability for damage when the

an industrial accident or occupational disease, in the wording of later regulations,

the Finance Minister was released on 20 December. December 2001, it was

signed, subsequently published in the amount of 176 of the laws on 31 December 2004.

December 2001 and according to the article. III. the decrees in question took effect on the date of

January 1, 2002.



With regard to the matter under consideration should be noted that the Constitutional Court in its

established case-law the Court held that the amendment of the legislation does not

the existence of a separate normative, but becomes part of the

the revised legislation [find SP. zn. PL. ÚS 5/96 (collection

the decision, volume 6, finding no. 98; promulgated under no. 286/1996),

resolution SP. zn. PL. ÚS 24/2000 (a collection of decisions, volume 19, no.

27), finding SP. zn. PL. ÚS 33/01 (ECR, volume 25, finding no.

28; promulgated under no. 145/2002 Coll.)], and as such is assessed as well as its

the constitutionality. If in proceedings for review of the standards derogačními the reasons for the absence of

regulatory competence, or violations of the constitutionally prescribed way

the adoption of the law, it is then assessed the constitutionality of the amendment

[see find SP. zn. PL. ÚS 5/02 (see above)].



The power Ministry to legislate for the implementation of the law is

based article. paragraph 79. 3 of the Constitution, and it provided a reason express

legal authorization. Authorization in this case, it is the provisions of §

205d paragraph 1. 7 of the labour code, according to which the more specific conditions and rates

the insurance shall issue a decree the Ministry of finance.



The constitutionality of the legal authorization, as well as to the interpretation of the law

the specified limits for the podzákonnou normotvorbu, the Constitutional Court held in

a number of their findings.



In finding SP. zn. PL. ÚS 3/2000, the Court held (a collection of decisions, volume

18, finding no. 93; promulgated under no. 229/2000 Coll.), that article. paragraph 79. 3

The Constitution should be interpreted in a restrictive manner, which means that the

the issue of secondary legislation must be specific, unambiguous

and clear.



While in custody in the Government with legislative powers, however, even with the effects for

more podzákonnou normotvorbu, the Constitutional Court in the finding in the matter of TechCrunch.com.

PL. ÚS 45/2000, ECR, volume 21, finding no. 30; promulgated under the

No 96/2001 Coll. (Likewise, even finding SP. zn. PL. ÚS 5/01,

the decision, volume 24, finding no 149; promulgated under no 410/2001 Coll.)

defining kautely, according to which the State authority that is authorized to issue

podzákonného law, "must move, secundum et intra

legem ', rather than outside the law (praeter legem) ", or" to put it simply,

under the law, has to be X, for the "authority" to establish,

that has to be X 1, x 2, x 3, not whether or not it should be Y ". Furthermore, the Constitutional Court

the Court held that from a theoretical point of view is on the podzákonný (detailed)

legislation required to be generic and therefore fell

an indeterminate group of addressees, as the Constitution empowers the legislation,

not to the issue of the individual administrative act. Before the excesses of the Executive

then protects the barrier of things merely to regulate the law restricted (the so-called.

the reservation of the Act). The constitutional definition of the derived standardisation of the Executive

According to the conclusions of the Court, contained in the said award on the following

principles:



-implementing legislation must be issued by an authorized body,



-cannot intervene in the Affairs of the reserved Act cannot, therefore, lay down (

the primary rights and obligations),



-It must be the will of the legislator to modify the apparent over the legal standard (must

therefore be opened space for the sphere of podzákonného Regulation).



On the basis of the relevant constitutional provisions implied the reconstruction,

as well as aspects of the assessment of their application, may be made in the

concluded that the contested Decree was issued by the Ministry of finance

as expressly and specifically authorized by law (competent) State

authority, its content relating to rates and Administrative Director of legal

employer's liability insurance for damage or occupational

occupational disease, then nevybočila from the limits set by the empowering

the provisions of § 205d para. 7 of the labour code.



The provisions of § 68 para. 2 Act No. 182/1993 Coll., as amended

regulations, then the Constitutional Court stores in addition to the review of the adoption and release

legislation within the limits of the Constitution laid down the competence in particular

examine the adoption and release of these provisions constitutionally prescribed way.




Compliance with the constitutional legislative process should therefore technique to differentiate from

the constitutional definition of regulatory competency. This legislative directive,

both the concept of doktrinární, the Constitutional Court in its case-law

I consistently controls [see find SP. zn. PL. ÚS 5/02 (see above)].



From the perspective of this distinction then article. paragraph 79. the Constitution represents the constitutional

a framework for the definition of the competencies of the regulatory State authority, but not

the legislative process.



Illustration of one of the constitutionally prescribed method of adoption of the technique

podzákonného law are consequences arising from constitutional

the concept of the rule of law. If pursuant to § 1 (1). 1 (b). (e)) and section 3 (2). 1

Act No. 309/1999 Coll., on the collection of laws and the Collection of international treaties,

as amended, the publication of legislation issued by the

ministries in the collection of laws as a condition of their validity,

This is contained in the plane of the rights of a simple encapsulated frame

arising from the concept of the rule of law (article 1, paragraph 1, of the Constitution), and in the

the context of the constitutional obligation of the State under the publicly declare and information

to provide access to the rule of law. To fulfill this obligation is a necessary

a prerequisite for enforcing the law, the application of the principle of enlarging the ignorance

the law does not excuse (ignorantia legis neminem excusat).



If the adjustment is not a legislative process, which is part of a simple

rights, representation of constitutional principle, and its possible violation of

the reason for the derogation, within the meaning of § 68 para. 2 Act No. 182/1993 Coll., on

as amended, constitutionally prescribed way for non-compliance with

adoption of a law or any other law, no.



In the present case is the plaintiff argued, first, breach of the provisions

§ 23 para. 2 of the labour code and policy violation question, and

This omission of the relevant reference points, failure to provide

sufficient time for the assessment of the draft decree, neprojednáním

comments and their nevyhodnocením. If the applicant argues in

benefit of the application of § 23 para. 2 of the labour code on the impact

increase in premiums to the amount of wages and thus on the important interests of the employees,

According to the party the content of the contested Decree is to change the administrative rates

direction and change the premium rates, while in the first case it is the

cost of insurance undertakings, in the second then a cost item

employers, therefore, according to him, were not affected by the decree are important

the interests of employees. The inadequacy of the period for examining the draft decree

the party then explains the time squeezed in a session to the newly received

the Ministry of health Decree No. 440/2001 Coll. on compensation

pain and worsening social application.



The provisions of § 23 para. 2 of the Labour Code regulates the obligation to discuss

Bills and proposals of other legislation relating to the

important interests of employees, in particular economic, production,

work, labour, cultural and social conditions, with the relevant

the Central Trade Union authorities and competent organisations of employers.

The purpose of this statutory provision is the embedding of the tripartite mechanism

even in the framework of the legislative process in order to achieve social peace.

This provision does not but based regulatory competencies listed

Trade Union bodies and employers ' organisations (in the sense of corporate

System) according to art. paragraph 79. 3 of the Constitution.



The rule of law in addition to perfect standards contains. leges imperfectae.

Those neobsahujíce penalty, not necessarily an expression of the incompleteness of the legal

Regulation, and therefore cannot be without further associate with gaps in the law.

The democratic legal order, which is determined by the democratic legitimacy,

based primarily on consensus, penalties in it represents only the ultima

ratio of legal regulation. They are therefore strictly contained and legal

standards, which, neobsahujíce penalties, are connected with the influence of acceptance

democratic political culture (political correctness).



For such a imperfektní legal standard, that shall not affect the delimitation of the nota bene

powers, should be considered as well the provisions of § 23 para. 2 of the labour code.



The Constitutional Court of přisvědčuje, a group of Senators on the

appropriateness of downshift the decrees in question under the framework as defined by the provisions of the

§ 23 para. 2 of the labour code, since the increase in premiums can have real

projection of salaries. Přisvědčuje and opposition nereprezentativnosti selection

making places, which follows and the observations of a party, in

which explains the merits of the edit rates higher inequality

accidents in the mining and the oil and gas industry, with the decree in question

has not been presented for comment the assessment of Zaměstnavatelskému Union

the mining and oil industry and Community těžařů of the Czech Republic.

Finally, the Constitutional Court of přisvědčuje and the insufficiency of the time limit for objection

observations, neprojednání and nevyhodnocení comments. The way in

the case took place on consultation, cannot be assessed for the

circumstances other than as a formal or formalistic fulfilment of the statutory

obligations without the fulfillment of its purpose, i.e., for imperfekci

the legal standards, as a violation of political correctness. But

in itself, as was already explained, the soundness violating the constitutionally

established procedure for the adoption and release of other legislation

does not constitute.



According to the article. Article 16(1). 1 the legislative rules of the Government (approved

Government resolution No. 188 of 19 July. March 1998) draft decree shall send

the authority which it has drawn up the specified State bodies, as well as

Another připomínkovým points to the designated authority, which the draft decree

worked out, if it considers that the said authority taking into account the content of the proposal

the Ordinance necessary. The legislative rules of the Government do not have the nature

legislation, internal normative directive, in order to bind her

alone, members of the Government, as well as her subordinate authorities.



Infringement of article 81(1). Article 16(1). 1 legislative rules which can be seen from the

for reasons similar to those listed in connection with the assessment of the impact of section

23 para. 2 of the labour code on the matter under consideration, without more, IE. without

violations of the Constitution and statutory competence. without breaking

constitutionally prescribed method of acceptance and release of other legislation

(eg. the absence of its publishing way in the collection

laws), derogation reason pursuant to § 68 para. 2 Act No. 182/1993 Coll., on

as amended, constitutionally prescribed way for non-compliance with

adoption of a law or any other law.



For the reasons indicated above, the Constitutional Court concluded that the contested

the Decree was adopted and published within the limits of the Constitution laid down the competence and

constitutionally prescribed way.



VIII.



Content compliance of the contested legislation with the constitutional order, and

the laws of the



According to the steady opinion of the Constitutional Court is the Court in its

decision making scope application is bound, and in its decision of its

borders (ultra petitum) move cannot [see e.g. the judgment in the case

SP. zn. PL. ÚS 16/94 (a collection of decisions, volume 2, no. 14), SP. zn.

PL. ÚS 8/95 (ECR, volume 4, finding no. 83; declared under no.

29/1996 Coll.), SP. zn. PL. ÚS 5/01 (see above). Of a defined framework

the constitutional review of the nevybočil nor the legal opinion expressed by the sp in the matter.

Zn. PL. ÚS 15/01 (ECR, volume 24, finding no. 164; announced

under Act No. 424/2001 Coll.): "in a situation where as a result of the cancellation of a

the statutory provisions of the Constitutional Court of provisions of the derogačním

other, content from the previous, reasonable sense depends on, i.e.. losing

the merits of their normative existence is given a reason for the cancellation and

This statutory provision, and that without the procedure were ultra

petitum. The validity of such provision shall cease to exist on the basis of the principle of

cessante ratione legis, cessat ipsa lex, derogations made Constitutional

the Court has, therefore, only the registration, technical nature. ".



If the plaintiff in proceedings for review of the standards alleged violations of the

the constitutional order defined technique competence and the legislative process

(section 68, paragraph 2, of Act No. 182/1993 Coll.), is then given by the circuit of all petit

the provisions that make up the law, on which the impugned deficits

constitutionality of the fall.



However, the Constitutional Court has repeatedly stressed that in the assessment of conflict

the law, if necessary. its individual provisions with the constitutional order is bound

Petite and not his only justification [(find SP. zn. PL. ÚS 16/93

(Collection, volume 1, decision finding no. 25; declared under no. 131/1994

SB.) and other)], does not follow from this conclusion, according to which the applicant in the

proceedings for review of the standards, if the content argues non-compliance of the law with

the constitutional order, does not burden the burden of claims. In other words, if the rail

the appellant against content-related non-compliance of the law with the constitutional order, for

the purpose of the constitutional review, it is not sufficient merely to cancel the designation

the proposed law, if necessary. its individual provisions, but is

necessary on his part and indicate the reason the alleged unconstitutionality. The constitutional

the Court in the context of the review of the reason for this is not bound-bound only

Petite, but not the review scope the reasons contained in the proposals


to check standards. The Constitutional Court has applied this procedure already in control

SP. zn. PL. ÚS 16/93 (see above), in which the plaintiffs in the remedies

quashed the entire Act No. 183/1993 Coll., amending and

supplementing Act No. 229/1991 regulating ownership of land and

other agricultural property as amended laws, in the grounds of

their proposal, but said the alleged reasons of unconstitutionality only of certain

the unconstitutionality of the provision and the remaining saw closer

unspecified "internal návaznostech" in the Act. After the constitutional

the Court these "inner building" did not find the proposal, rejected, and without

dealing with the so-called ústavností. the remaining provisions.



If the applicant can carry in proceedings for review of the standards the burden of claims

unconstitutionality, consider such a proposal as contradictory with the

the provisions of § 34 paragraph 1. 1 Act No. 182/1993 Coll., and therefore ineligible

the substance of the discussion.



In this case, a group of senators in its proposal seeks the annulment of

Decree No. 491/2001 Coll., on the one hand, for reasons of infringement of article 81(1). paragraph 79. 3 of the Constitution

and § 23 paragraph 1. 2 of the labour code, IE. for reasons of infringement of the constitutional and legal

Edit the legislative process legislative authority and, secondly, for the reasons

content-in provisions of the annex No. 2 of Decree No. 125/1993 Coll., on

amended by Decree No. 487/2001 Coll., on the economic activities referred to in

Code 10.1, 12 and 13 on SIC argues the conflict with the principles of equality and

proportionality in the scales of premiums according to the prevailing activity

carried out by the employer of the calculation basis laid down in the

per mille. The appellant, therefore, accumulated deficit, the reasons of the constitutional

the legislative process and the substantive objections of unconstitutionality. From the perspective of

the above policy landed relating to the scope of the constitutional review in the proceedings

on the control of standards then for the case conclusion, according to which the validity of the

the whole of the applicant, the contested Decree No. 491/2001 Coll., Constitutional Court

judged merely on grounds of violation of the constitutional namítaného technique

the legislative process, the scope of the content line is but

defined only by those provisions of the Decree No. 487/2001 Coll., which

the appellant claims, i.e. the burden of the kidnapped. the provisions of Annex No. 2

Decree No. 125/1993 Coll., as amended by Decree No. 487/2001 Coll.

the economic activities referred to under code 10.1, 12 and 13 on SIC.



If the applicant argues unconstitutional inequality and violations of the principle of

the proportionality of the decree in question established scales of premiums,

in its observations the appellant explains this fact by

a more significant increase in insurance premiums (4.2)

necessary for those economic activities that exhibit

the most adverse claims (in the mining of coal was in 2000

indemnity 778.9% of premiums, in the mining of uranium 509.0

% and in mining ore 118.6%).



The Constitutional Court shall comprehensively dealt with the issue of equality in decision SP. zn.

PL. ÚS 33/96, ECR, volume 8, finding no. 67; promulgated under no.

185/1997 Coll. (the decision of other then in particular find SP. zn. Pl. ÚS

4/99, ECR, volume 14, finding no. 93, announced under the No.

192/1999 Coll.). He [especially in the findings, SP. zn. Pl. ÚS

16/93 (see above), SP. zn. PL. ÚS 36/93 (collection, volume 1, decision

finding no. 24; promulgated under no. 132/1994 Coll.), SP. zn. PL. ÚS 5/95 (collection

the decision, volume 4, finding no. 74; competition no 6/1996) and sp.

Zn. PL. ÚS 9/95 (ECR, volume 5, finding no 16; declared under

No 107/1996 Coll.)] with the understanding of the constitutional principle of equality, as it was

expressed by the Constitutional Court of CZECHOSLOVAKIA (find SP. zn. PL. ÚS 22/92, a collection of

resolutions and findings of the Constitutional Court of the CSFR, finding no. 11): "it is for the State,

in the interest of the security of their functions, decided that a certain group of

provide fewer benefits than others. Even here, however, cannot proceed arbitrarily

... If the law specifies the benefit of one group and at the same time lays down the

disproportionate to the duties of the other, can be done only on the basis of the appeal is

the public value. ".



The Constitutional Court rejected the absolute understanding of the principle of equality, and

also noted: "equality of citizens should not be understood as a category

abstract, but as a relative equality, as they have in mind all

the modern Constitution "[(SP. zn. PL. ÚS 36/93 (see above)]. The content of the principle of

equality in the area of constitutional law that shifted the concept

aspects of the differentiation of subjects and rights. The first aspect, which can be marked

the term therefore neakcesorické inequality, defined the exclusion of arbitrariness

given the (arbitrary) to differentiate.



Second, it is apparent from the legal point of view expressed in the report in case

SP. zn. PL. ÚS 4/95 (ECR, volume 3, finding no. 29; announced

under no. 169/1995 Sb.): "inequality in social relations, in order to

touch the fundamental human rights, must reach the intensity,

challenging, at least in a certain direction, already the very essence of equality. It

usually happens when there is a violation of and a violation of equality

Another fundamental right, "[same SP. zn. PL. ÚS 5/95 (see above)].

The second consideration when assessing the unconstitutionality of the legislation

the founding of the inequality is the inequality based prejudice any

of the fundamental rights and freedoms (inequality ancillary).



On the question of the possible qualification of modifications of the statutory compulsory

insurance within the meaning of the expropriation. limitation of property rights under the

article. 11 (1) 4 of the Charter of fundamental rights and freedoms ("the Charter"),

the Constitutional Court held in finding SP. zn. PL. ÚS 12/94 (collection

the decision, volume 3, finding no. 20; promulgated under no. 92/1995 Sb.).

The Court held that the legal regulation of premium payments shall not constitute expropriation,

Since "article. 11 (1) 4 of the Charter of rights has in mind, "and" between the

such does not include income from gainful activity ".



In the matter of SP. zn. PL. ÚS 3/02 (ECR, Volume 27, no.

105; promulgated under no. 405/2002 Coll.) and SP. zn. PL. ÚS 12/03 (collection

the decision, volume 32, finding no. 37; promulgated under no. 300/2004 Sb.)

The Constitutional Court assessed the question of the constitutionality of other statutory compulsory

cash payments, the amount of the fines in construction management. The Court held that

"by law the minimum amount of the fine must be set so that the

allow at least to a certain extent take into account assets and the personal circumstances

delinquent, in the present case, so that the imposition of a fine, albeit at a minimum

amount, not for the offender, or to the effect of the winding-up

cause, that business activity after considerable (several years) time

period loses any sense ". If it is not respected this principle, it is

then according to the beliefs of the Constitutional Court on such action to the property

rights of the individual, which, due to their intensity is a violation of

article. 11 (1) 1 of the Charter and article. 1 of the additional protocol to the Convention on the protection of

human rights and fundamental freedoms (hereinafter referred to as "the Convention").



The European Court of human rights in its case-law considers the taxation

different assets and income criteria for factually justified and

not running in the concerned rights resulting from the article. 14 of the Convention (see j. a.

Frowein, W. Peukert, Europäische Menschenrechtskonvention.

EMRK-Kommentar, 2. Aufl., Kehl-Strassburg-Arlington 1996, p. 476).

However the State permission to impose taxes and other charges as well as

the fines flows from article. 1 of the additional protocol to the Convention, however, from

the case-law of the Court and the Commission shows that this is not completely removed the protection

ownership in the area of taxes, fees, and financial penalties. Indeed, the remains

precluding the possibility of review, whether the taxes, fees, and financial penalties

are not being misused or are not fixed-width. Example as follows

the taxes are assessed with konfiskačními effects, which may be paid by the payer

tax only to the nature of the asset. (See J. A. Frowein, W. Peukert,

Europäische Menschenrechtskonvention. EMRK-Kommentar, 2. Aufl.,

Kehl-Strassburg-Arlington 1996, p. 824).



Similar content from the illustrations of European constitutional courts is also

the case law of the Federal Constitutional Court of Germany (BVerfGE, 93, 121 et seq.;

97, 350; to interpret that case-law see e.g.. J.-R. Sieckmann,

Grundrechtliche-das Abwägung als Problem der Rechtsanwendung

Begrenzung der Besteuerung. Der Staat, 41. Band, Heft 3, 2002 with the.

385-405; Berliner Kommentar zum Grundgesetz, Hrsg. K.H. Friauf, W.

Höfling, Berlin 2003, (C) Art. 14).



From the above outlined the remedies can be used to outline for the review of constitutionality

legal, tax, or fee. other similar statutory

mandatory benefits (in which the statutory compulsory insurance),

as well as the monetary penalties, the following kautely:



From the constitutional principle of separation of powers (article 2, paragraph 1, of the Constitution), as well as from the

the constitutional definition of the legislative power (article 15, paragraph 1, of the Constitution) implications for

the legislature wide scope for decisions about the subject, to the extent and scope of the

taxes, fees, and financial penalties. Legislature carries the consequences

This decision-making political responsibility.



However, the fee is a tax. financial penalty shall be governed by the compulsory

financial performance of State and thus the intervention into the ownership of the substrate, and

Hence the title of the statutory body, without the fulfillment of other

terms and conditions does not constitute a prejudice in the constitutional order protected ownership


position (article 11 of the Charter, article 1 of the additional protocol to the Convention).



The constitutional review of taxes, fees and penalties shall include an assessment of the

view accruing from the observance of the technique to the constitutional principle of equality, and it

How to neakcesorické (article 1 of the Charter). arising from the exclusion requirement

arbitrariness in distinguishing between entities and rights, as well as incidental to the extent

as defined in the article. 3 (2). 1 of the Charter (hypothetical illustrations of violations of the

technique to incidental inequalities would be different with the amount of tax adjustment

regard to religion, which would be within the meaning of article 87(1). 3 (2). 1 of the Charter

was discriminatory and would also hit into the basic right arising under

from the article. 15 paragraph 1. 1).



If the subject of the assessment of the constitutionality of the incidental inequalities due to the

exclusion, discrimination, or only the property assessment

the fact does not constitute a tax, fee, or. financial penalty

any prejudice to the right of ownership (article 11 of the Charter, article 1 of the supplementary

Protocol to the Convention), such a review is limited to cases in which the

the boundaries of public statutory cash by an individual State

against an individual acquires ownership of the substrate restrictor (rdousícího)

the action; in other words, if the assessed tax, fee, or.

monetary sanctions, in effect, the effects of confiscation in relation to the

estate of an individual.



From the perspective of the following review of the constitutionality of the statutory structure lined editing

the tax charge. other similar statutory mandatory benefits (in the

that the statutory compulsory insurance), as well as cash

sanctions can be classified under the category of argument of the applicant

neakcesorické inequalities. For the constitutional conformity assessed the legal

adjustments in terms of neakcesorické inequality, it is sufficient if the

-rated classification in some rational relationship to the purpose of the Act, i.e.,

If he can somehow achieve this purpose.



If the purpose of distinguish premium rates to ensure its implementation in the

Depending on the structure of claims and if the data

contained in the representations of the party follows the most adverse claims experience

progress in the field of mining and the mining industry, the difference in

premium rates laid down in annex No. 2 of Decree No. 125/1993 Coll.

as amended, mark as corresponding with the participant

management indicated the purpose of the legislation. For these circumstances

You cannot regard the opposition of the applicant concerning unconstitutional

the inequalities of the contested legal regulation.



In the case of the Constitutional Court did not find that in points 10.1, 12 and

13 of Annex No. 2 of Decree No. 125/1993 Coll., as amended,

set out the rates of legal liability insurance at work

an injury or occupational disease have against employers of confiscation

impacts in relation to their estate, and therefore did not

the soundness of such objections prejudice the rights of ownership pursuant to art. 11

Of the Charter. article. 1 of the additional protocol to the Convention.



Based on these reasons, the Constitutional Court the proposal landed groups of Senators

Senate of the Parliament of the Czech Republic for annulment of the Decree of the Ministry of

Finance no 487/2001 Coll., amending Decree of the Ministry of finance

No 125/1993 Coll., laying down the conditions and rates of legal insurance

the employer's liability for the damage in an industrial accident or disease

profession, as amended, rejected.



IX.



Locus standi of a party for filing the application for the control of standards



The proposal on initiating the procedure defining the subject of the proceedings. According to their

It is settled case-law, the Constitutional Court, in deciding the scope of the administered

the proposal is bound and in its decision of its borders (ultra petitum)

cannot move (see for example judgment SP. zn. PL. ÚS 16/94, sp.

Zn. PL. ÚS 8/95). In finding SP. zn. PL. ÚS 15/01 without embarrassing from

referred to the maxims, Constitutional Court held that in a situation where, as a result

cancellation of certain legal provisions of constitutional derogačním

the Court of provisions of the other, the content from the previous one, depends on a reasonable

sense, IE. losing the merits of its existence, this is the canonical given

the reason for the cancellation of the legal provisions, and that without

It was about how ultra petitum. The validity of such provisions shall expire

on the basis of the principle of ratione legis cessat cessante, ipsa lex,

derogations made by the Constitutional Court is therefore merely a registration,

technical nature.



Proceedings for review of the standards is guided by the principle, which nevertheless

the component is also eliminate the possibility of discontinuance [see resolution sp.

Zn. PL. ÚS 8/95 of 12 October. July 1995 (unpublished)]. However,

the definition of the subject of the proceedings, however, there remains in the process

the appellant, therefore, the Constitutional Court in proceedings for review of the standards accepted in the

the existing case-law amendment (extension) only and exclusively on the design proposal

the plaintiff [see e.g. resolution in the matter of TechCrunch.com. PL. ÚS 8/02 of 20 December 2002.

November 2002 (unpublished)].



A proposal from the Minister of finance as party to proceedings for revocation of § 205d of the code

work incidental to it, and the proposal to repeal Decree No. 125/1993 Coll.

as amended, (article 70, paragraph 2, of Act No. 182/1993 Coll.)

for those circumstances should be regarded as a claim manifestly

by an unauthorized person, which established the reason for his refusal under § 43 para.

1 (b). c) Act No. 182/1993 Coll., as amended.



The President of the Constitutional Court:



JUDr. Rychetský v.r.