In The Matter Of The Application For Revocation Is Generally Binding Decrees Of The Town Of Prostějov

Original Language Title: ve věci návrhu na zrušení obecně závazné vyhlášky města Prostějova

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=60135&nr=210~2F2005~20Sb.&ft=txt

210/2005 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 22 November. March 2005 in plenary in the composition of JUDr.

Stanislav Balík, JUDr. Francis Skinner, JUDr. Turgut Güttler, JUDr.

Pavel Holländer, JUDr. Ivana Janů, JUDr. Dagmar Lastovecká, JUDr. Jiří

Mucha, JUDr. Jiří Nykodým, JUDr. Pavel Rychetský, JUDr. Miloslav

Excellent and JUDr. Elisabeth Wagner (Judge-Rapporteur) in the matter of the proposal

Minister of the Interior, Mgr. František Bublana on cancellation of generally binding

Decree No 8/2003 of the city of Prostějov on compensation for ecological damage in the

public green land owned by the city of Prostějov,



as follows:



Generally binding Decree No 8/2003 of the city of Prostějov on compensation for

the ecological harm when you grab a public green space owned by the city of Prostějov

is lifted for conflict with section 10 (b). (c)) of the Act on municipalities interpreted in

accordance with article 6(1). 11 (1) 5 the Charter of fundamental rights and freedoms of the day

the publication of this finding in the statute book.



Justification



(I).



The design of content and formal 16.11.2004 meeting the requirements

pursuant to Act No. 182/1993 Coll., on the Constitutional Court, as amended

Regulations (hereinafter "the law on the Constitutional Court"), the Minister of the Interior seeks

generally binding decrees of cancellation: No 8/2003 on compensation

for ecological damage in the amount of public green space in the city

Prostějov for its contradiction with the law.



The cited decree came into force on 1.1.2004. Measures of

12.10.2004 No. 1655/MS-2-2004 the Interior Ministry has launched an administrative

the procedure for suspension of the effects of the legislation. The decision on the

the suspension of the cited law dated 12.10.2004 No.

j. MS-1655/2-2004 was delivered to the city since 1973 Vrahovice is the date of 1 November 2004. Because

the city of Prostějov nezjednalo remedy, the applicant has filed to the Constitutional Court

the proposal in article 21(2). 87 para. 1 (b). (b)) of the Constitution of the Czech Republic (hereinafter referred to as

"The Constitution") and § 64 para. 2 (a). g) of the Act on the Constitutional Court to cancel

of this order. The text of the cited generally binding decrees the following:



GENERALLY BINDING Decree No 8/2003

on compensation for ecological damage in the conquest of public greenery

owned by the city of Prostějov



City Government of Course published by the date of 18.11.2003

in accordance with the provisions of section 10 (b). (c)) and article 84 paragraph. 2 (a). I)

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

amended, this generally binding Decree.



Article 1

The subject of the edit



(1) the city of Prostějov this generally binding Decree lays down the

in the interest of conservation and development of public green space in the city

Compensation for environmental damage of prostějov in the annexation of the public

Green and for cutting down trees growing outside the forest, that are in the

the ownership of the city of Prostějov.

(2) this Decree also lays down general binding details of the refund

for ecological damage, in particular the amount of refund due

and the method of payment.



Article 2

The definition of some terms



According to this generally binding decrees shall mean:

and publicly accessible) public greenery foliage on land owned by the

the town of Prostejov, in particular all the lawns, including beds,

as well as individually, growing trees,

(b) any forced public greenery) activity, which will lead

to permanently delete the lawn or other landscaping

in connection with the construction or establishment of, in particular, the shoulder

parking, parking lot, entrance, or advertising and other

areas,

c) tree species growing outside the forest, any type of wood in the property of the city

Prostějov growing on land owned by the city of Prostějov,

(d) the administrator of the city of Prostějov in green) or by the trustee

or a person with whom the city of Prostějov as owner of the land

or by an authorized user enters into an agreement for the maintenance of green spaces,

e) replacement for ecological harm financial remuneration for the

the occupation of public greenery or cutting down trees on the property of the city

Prostějov.



Article 3 of the

The amount of compensation for ecological damage



(1) the compensation for ecological damage in the amount of public green

set at EUR 250 CZK per each started 1 m2 of public

Green.

(2) compensation for ecological damage when felling trees growing outside

Les is determined in the amount of $5 000 for each species.



Article 4 of the

The maturity of the compensation for ecological damage and the method of payment



(1) each, at whose request the competent authority of the city of Prostějov

approved the lease or sale of the land for a purpose associated with the

forced public green, pay compensation for environmental damage

in the relevant amount before the conclusion of a rental or purchase contract.

If compensation for ecological damage is not the town since 1973 Vrahovice

paid, lease or purchase agreement will not be concluded. Replacement

for ecological damage in the amount of public green space is not part of

the rent of the land or the purchase price for the land with the purchase

a plot of land.

(2) each, in whose interest it is the felling permit is requested

trees growing outside the forest, to pay compensation for environmental damage

in the amount of $5 000 for each species. When you pay this amount

the asset management division of requests on behalf of the owner of the

the land of the town of Prostějov Government authority about how to enable logging

trees growing outside the forest. In the event that the authority of the State

the Administration decision to allow the felling of trees outside the forest,

the refund will be paid in the same amount is returned to the person who it

pay, within 1 month from the acquisition of legal power rozhodnutí1).

(3) the compensation for ecological damage can be paid

and non-cash transfer of) account maintained by the Bank

the account of the city of Prostějov,

(b)) in cash

1. through a financial institution or the holder of the postal

the license for the account of the city of Prostějov,

2. the authorised capital of Prostějovem employees receive

payments in cash; received payment the employee is

obliged to issue a certificate.

(4) in the day of payment of compensation for ecological damage is considered to be

and) in non-cash transfers from the Bank the day was

the amount remitted,

(b)) in cash payments a day when Bank, holder of the postal

licence or an employee of the authorized capital of Prostějovem amount

accepted or taken.



Article 5

Common provisions



(1) Ongoing monitoring of compliance with this Decree, provide

employees of the city of Prostějov inclusion in the asset management Department

the City Department of municipal services and the Department of the environment

The Town Hall in prostějov.

(2) this generally binding Decree is without prejudice to the rights of

and duties laid down by specific předpisy2).



Article 6 of the

The effectiveness of the



This generally binding Decree shall take effect on the date of 1 January.

------------------------------------------------------------------

§ 8 paragraph 1). 1 of the law No. 114/1992 Coll., on the protection of nature

and the countryside, as amended

2) eg. Act 114/1992 Coll., on nature and landscape protection, in

as amended, Decree No. 395/1992 Coll., which

implementing some provisions of the Act of the Czech National Council.

114/1992 Coll., on nature and landscape protection



II.



In its submission the applicant contends that the decree is contrary to the

the Act sets out, for the obligation (prohibitions) without any legal basis and

beyond the individual municipalities, which is in breach of article. 2 (2). 3

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

article. 2 (2). 4 and article. paragraph 104. 3 of the Constitution. Specifically, it argues that, in any

the Act does not set out the legal authority, which would make the possibility of the village

Edit the issue of compensation for environmental harm, i.e. a binding Decree

a village in the cited Decree regulates matters beyond the scope of a separate

the scope of the. Furthermore, the applicant points out that the definition of

contained in the Decree ("ecological damage", "tree species growing outside the forest")

It differs from the legal definitions of the terms. To the provisions of article. 3 (2). 1

and (2) of the Decree then the applicant States that it has not yet been accepted by a law, which

would the presence of a binding method for calculating ecological harm, and therefore, neither the municipality

in this case cannot modify the compensation for ecological damage caused

injury, as the competent national authority. It also points out,

that the municipality cannot generally binding decree to set terms and conditions

private relationship cannot, unless it is also empowered to

by law, impose administrative charges or civil compensation.

Whereas the Minister of the Interior proposed to the cited in the header

the Decree was constitutional court abolished.



The appellant, the city of Prostějov, design of the Interior Minister expressed

so, with that his argument does not agree, since it considers that the adoption of the

the said Decree do not exceed the statutory modifications of the law on

the municipalities. To the specific objections of the applicant States that the concept of "ecological

the injury "is defined in the law No. 17/1992 Coll., on the environment,

as amended, but that alone cannot mean that

When you use this phrase he cannot be given another wider or its

the character of otherwise specified the contents when in a particular case

the decree in question this term used as a specification of the name of the

the Decree, which has characterized its subject and content, and when further in


the text does not specify in any way its already this term. Likewise, it is considered that the

the concept of "cutting down of trees" is the Act 114/1992 Coll., on the protection of nature and the

landscape, as amended, referred to as the concept of a completely generic,

which is logical if the cutting down of trees we understand as a human activity and

rather than the activity of the natural, that goes beyond human will. Further notes that

the above cited Decree does not breach article. 2 (2). 4 of the Constitution, respectively.

article. 4 (4). 1 of the Charter, since the Decree was issued in the Act

predicted the form and within the competence of the authority, which is from the law

entitled, and thus regulates the relations between the territorial Government and

the population, which lives in the context of local and regional authorities, which are relations,

or they may be different in content relationships within the meaning of the relationship

citizen-state citizen-village. The cited Decree does not violate or the provisions of

article. paragraph 104. 3 of the Constitution, as it was released under the provisions of § 35

paragraph. 1 of the law No. 128/2000 Coll., on municipalities (municipal establishment), as amended by

amended when this Decree is implemented that permission

in a separate scope of the village include the management of matters that are

in the interests of the municipality and its citizens. In the opinion of the city of Prostějov cannot succeed

the argument of the applicant for intervention into private-law relationships, as

This argument finds no support in law or philosophy of the Czech legal order

of the Republic, when as an example to support this argument, it should be

noted that the municipality has the right within the framework of the publication of the intent of the sale or rental of

property belonging to the municipality to establish different conditions which may make

conclusion of the contract, though certainly it may not be the only criterion

the price. Thus announced by the intent of the sale or rental is a public act

and if the applicant referred to the philosophy, then it would

that procedure was unconstitutional. To the objection of the plaintiff, that the determination of

the compensation is in the form of an administrative fee, not according to the city of Prostějov this

opposition support in the interpretation of this term, because it is a prioritization

penuciární (apparently meant "claims are eligible") refunds instead of

restitution, when referred to payment is completely uniquely identified in a special

Chapter of the budget of the municipality, of which the following paid is paid

the development of public green spaces in the municipality and supported by bioflóra. Due to the

a participant proposed that referred to the Constitutional Court a proposal from the Minister of the Interior

It has refused.



The Ombudsman is the challenge to the Constitutional Court, whether as a side

a participant intends to enter into the proceedings (article 69, paragraph 2, of the law on the constitutional

Court), commented that in the proceedings.



III.



The Constitutional Court said the formal admissibility of the administered

design, examined within the meaning of the provisions of § 68 para. 2 of the Act on the constitutional

the Court whether the contested Decree was issued general binding constitutionally

in the prescribed manner. Generally binding Decree was cited properly

taken on 12. the meetings of the Municipal Council of the town of Prostějov day 18.11.2003

Twenty-six votes in the presence of thirty representatives (out of a total

the number of 35), while one member abstained from voting, three

representatives voted, one was absent, and four excused.

Posted April 28.11.2003 and lifted the day 17.12.2003. Cited in General

binding Decree, therefore, in the prescribed manner have been taken by the authority to do so

authorised [§ 12 para 1, § 84, paragraph 2 (b) (i)), section 87 of the Act No. 128/2000

Coll., as amended].



As a further condition of the proceedings according to § 64 para. 2 of the Act on the Constitutional Court is

also the requirement to control during the abrogation or termination of

the validity of the law under which it is evaluated the legality and

the constitutionality of the contested regulation, or the cancellation or expiry of the

the law, the breach of the appellant argues. In a given

the event occurred during the proceedings brought by the proposal to repeal of the law No.

368/1992, on administrative fees, as amended, that

with effect from 16.1.2005 was replaced by Act No. 634/2004 Coll.

administrative fees. The proposal, however, this change does not affect.



IV.



The Constitutional Court has chosen to review the contested generally binding decrees

the following test:



1. Review of the powers of the municipality to issue generally binding decrees.



2. The examination of the question whether a municipality when you issue generally binding decrees

moving outside the law defined the factual scope (ultra

vires).



3. Resolve the question of whether a municipality when the issue generally binding decrees

abuses by law conferred on her application.



4. review of the content of the Decree from the viewpoint of "foolishness" (unreasonabless).



It should be noted that the first two criteria are formal criteria,

the other two are related to the content of the contested regulation itself, even

These two last criteria showing aspects of the negotiations (in ultra vires

material sense).



Ad 1. The provision of article. paragraph 104. 3 of the Constitution, according to which the

of the limits of its competence to issue generally binding decrees,

the municipalities having powers to issue generally binding decrees. In this

the meaning of the Constitutional Court follows the decision made in the matter of the sp.

Zn. PL. ÚS 5/99, published under no. 216/1999 Coll., and published in the collection of

the findings and resolutions of the Constitutional Court (hereinafter referred to as "the decision"),

volume 15, no. 112. It follows that this normotvorbu municipalities

to be regarded as originární the production rights.



Because the contested Decree was released to generally binding Municipal Board

of the municipality in a manner that is enlarged upon in section III. This finding can be

to conclude, that the municipality acted in the exercise of powers constitutionally be a harmonious

way.



Ad 2. Set of the above-mentioned article. paragraph 104. 3 of the Constitution within the meaning of

the determination of the scope of the municipalities issue generally binding decrees is the provision

§ 35 para. 3 (b). and) Act No. 128/2000, on municipalities (municipal establishment).

According to this provision, a village in the performance of individual (in the

the meaning of the provisions of § 35 para. 1 of the law on municipalities) controls when issuing

generally binding decrees of the law. This legal statement corresponds to the

the definition of the substantive areas in which is a municipality is entitled to, i.e. originárně. without

legal authorization in the right spirit (find SP. zn. PL. ÚS 3/95,

published under no. 265/1995 Coll., and published in the ECR,

Volume 4, finding no. 59) to form the right.



From section 10 (b). (c)) of the Act on municipalities, it is apparent that the municipality is entitled, in

a separate scope to impose the obligations generally binding Decree outside

other things, to protect the environment, green buildings and other

public greenery (greenery). This permission of the village, though in a different venue

a defined area of competence, reflect and separate find SP. zn. PL.

TC 4/2000, published under no. 51/2001 Coll., and published in the collection of

the decision, volume 20, finding no 189.



Therefore, if a municipality as defined in the above areas generally binding

the Ordinance, such conduct cannot be considered ultra vires, in other

words, the municipality in this case moves in the substantive area, which

the law was given to the individual.



In this case, is the subject of the contested generally binding decrees determining the

the compensation for ecological damage in the amount of public green areas and for cutting down

trees growing outside the forest, that are owned by the city of Prostějov,

in the interests of conservation and development of public green space in the city

Prostějov.



If the applicant argues that the law does not contain a legal warrant, which would

gave the village the option to edit this issue generally binding

by Decree, therefore, that the city of Prostějov on generally binding Decree

matters outside the scope of their individual, cannot be with his

the arguments quite agree. From the above it clearly follows that the

materially defined individual municipalities are imposing obligations on

the field of the environment and specifically in relation to the public green. From

This view cannot be the village, that she got out of the limits of the law

set the stage for the venue of a separate scope in the field of

the issue generally binding decrees, i.e.. You cannot, without further argue that

the municipality has acted ultra vires in the performance of the Act conferred on the scope of her.



Ad 3. Another question is whether the municipality had not abused her by law conferred on the

factually the stage a separate scope.



Exploit this scope represents the exercise of power in the Act conferred on the

area 1. the way tracking purpose, which is not by law aprobován, 2.

the way of ignoring relevant considerations when taking decisions or vice versa

3. taking into account the considerations (cf. nerelevantním. About Philips, Paul Hood.

Jackson: Constitutional and Administrative Law, 7th Edition, Sweet and

Maxwell, London, 1987, p. 666 et seq.).



In the present case should be declared the purpose of generally binding decrees

protection and development of public green space owned by the city of Prostějov, with

means of achieving this purpose was "for fixing

the ecological harm monument public green areas and cutting down trees growing

outside the forest, that are owned by the city of Prostějov "(article 1, paragraph 1,

contested generally binding decrees). In other words, the law [section 10 (b), (c))

the law on municipalities], while the village of confers on the imposing obligations on the

environment and greenery, but the contents of these obligations

cannot be determined, so that gets into conflict with the provisions of applicable legal


standards or with the constitutional order.



However the Decree called the financial implementation of the "refund", established at the same time, that

This "compensation for the occupation of the public" is not part of the rent of the

the land or part of the purchase price for the land plot (article 4, paragraph 1, of the contested

generally binding decrees). Therefore, if it is not part of the contract the performance is to

obvious that it is a payment done in order to safeguard its village

interest or the interests of its citizens, who have (in the opinion of the village-see

her expression) benefit from the assurance of that interest. The addressee of the standards in the

generally binding Decree contained so has remit village nature

public benefit in order to obtain the benefit, which is the municipality

provided, even if not always it will be a completely equivalent to mutual benefits.

Payment is to be made in a lump sum. From this it follows that the characteristics

the payment of the foreseeable, generally binding Decree, a matter which is

the Decree itself is referred to as a replacement, it must be the nature of the

introduced Law Institute considered the fee, however, the law

(in this case the Act 565/1990 Coll., on local fees, as

amended) not foreseen (see a dictionary of public law

The Czechoslovak, sv. III, Brno, 1934, p. 204, or m. Dan B.

Financial law, 3. Edition, c. h. Beck, Prague, 2003, p. 21, 85, 195,

325).



The Constitutional Court of the above adds that the Act 114/1992 Coll., on

nature and landscape protection, as amended, foresees in

the provisions of § 9 para. 3 edition of the special law, which would be to

the budget of the municipality established drainage for felling trees. Due to the fact that

such a law has not yet been issued, there is no legal basis for the

contained in the contested adjustment generally binding Decree.



The municipality has the option to save as defined within the venue

a separate scope within the meaning of § 10 of the Act on municipalities should therefore be

interpret to the prohibition or command did not get saved to the contrary

with the provisions of applicable legal regulations or even with the constitutional order. In

the case follows a strict interpretation of section 10 of the Act on municipalities in particular

from the article. 11 (1) 5 the Charter of fundamental rights and freedoms, according to which tax and

fees may be imposed only on the basis of the law. This Act is at the level of

municipal fees, the above-mentioned Act 565/1990 Coll., on local

fees, as subsequently amended. Therefore, the new charges the municipality may not

generally binding Decree, nor in the area of substantive, as defined

a separate scope, such permission belongs to only the Parliament of the Czech

of the Republic.



The fact that the contested decree introduced general binding, namely in the scope of the substantive

the designated individual municipalities, Law Institute-fee, and

While she missed that its implementation is reserved only to the law,

committed a municipality as defined in substance misuse their separate scope

so that her performance powered while the omission to take into account

the statement resulting from the constitutional order, IE. from the article. 11 (1) 5 of the Charter

fundamental rights and freedoms in the application and interpretation of section 10 (b). (c))

the law on municipalities.



In view of this finding it considers unnecessary to address the Constitutional Court

the other reservations put forward by the applicant, since it itself referred to

the findings should lead to annulment of the contested generally binding decrees.



For the same reason also it was no longer possible to access the application 4. step

the above test.



Given the above, the Constitutional Court had no choice than to comply with the proposal

Minister of the Interior and Decree No. 8/2003 of the city of Prostějov on compensation for

the ecological harm when you grab a public green space owned by the city of Prostějov

cancel without regulation of an oral hearing with the consent of the parties, in

the entire range for its contradiction with section 10 (b). (c)) of the Act on municipalities

interpreted in accordance with art. 11 (1) 5 the Charter of rights and

freedoms. Cited by the generally binding Decree will be revoked in its entirety

on the date of publication of this finding in the journal of laws (article 70, paragraph 1, of the law on

The Constitutional Court).



The President of the Constitutional Court:



JUDr. Rychetský in r.