In The Matter Of An Application For Annulment Of The Decree Of The Town Of Františkovy Lázně

Original Language Title: ve věci návrhu na zrušení vyhlášky města Františkovy Lázně

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=75029&nr=293~2F2011~20Sb.&ft=txt

293/2011 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court ruled under SP. zn. PL. ÚS 56/November 10, 7. September 2011 in plenary

in the composition of Stanislav Duchoň, Franz Package, Turgut Güttler, Pavel

Holländer, Ivana Janů, Vladimir Crust, Dagmar Lastovecká, Jiří Mucha,

Jan Musil, Jiří Nykodým, Miloslav Výborný, Elisabeth Wagner and Michael

April (reporter judge) on the proposal of the Interior Ministry to cancel

generally binding decrees of Františkovy Lázně, no 1/2010 security

local matters of public policy in the area of gambling restrictions,

the participation of the city of Frantiskovy Lazne as party to proceedings and public

the Ombudsman as a secondary party to the proceedings,



as follows:



The proposal is rejected.



Justification



(I).



Recap of the proposal and the arguments of the applicant



1. The proposal, which was delivered to the Constitutional Court of 16 December. December 2010,

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

Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the law of

The Constitutional Court "), the Ministry of the Interior (hereinafter referred to as" the appellant ")

annul generally binding decrees of Františkovy Lázně, no.

1/2010 on the local security matters of public policy in the area of

restrictions on gambling (hereinafter referred to as "Decree" or "Decree No. 1/2010")

because in a design closer to the specified non-compliance with the constitutional order, and

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

Regulations (hereinafter referred to as the "law on municipalities").



2. the decree in question reads (note. Red: including spelling

inaccuracies):



"Generally binding Decree



the town of Františkovy Lázně



OZV No 1/2010



to secure local matters of public policy in the area of limitation

gambling



City Government of Františkovy Lázně, at its meeting of 24 September 1998. 2.

2010, as is apparent from the resolution No. 700/2010, has resolved to issue within the

a separate scope according to section 10 (b) of the city. and under section 84) and para. 2

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

amended, this generally binding Decree:



Article 1



(1) the city Františkovy Lázně (hereinafter the city) provides for the operation of

lotteries or other similar games by using technical devices, which was

permitted on the basis of the provisions of § 50 para. 3 of Act No. 202/1990 Coll., on

Lotteries and other similar games, as amended by later regulations (hereinafter referred to

only the winning devices), activities that could harm the public

order.



(2) the purpose of this order is to ensure public order in the city

by specifying the places accessible to the public for the operation of

devices.



Article 2



(1) the winning devices can be operated only on the territory of the city in

object no. 1 on St. p.č. 32 in the land and the municipality Františkovy Lázně in the street

The national 1.



Article 3 of the



Penalties



(1) for failure to comply with this order penalties according to the specific

regulations.



Article 4 of the



(1) this Ordinance shall take effect 15. on the day following the date of

posting on the official notice board.



Mgr. Lenka Sazimová Ivo Mlátilík

Deputy Mayor the Mayor "



3. the appellant in the design process of the adoption of the contested Decree recounted

and the course of its supervisory activities within the meaning of section 123 of the municipal establishment.

Subsequently he devoted himself to drawing, the deficiencies of these decrees, which

under the conditions specified below. In this sense, the appellant

devoted to the question of whether the city Františkovy Lázně in issuing the

the Decree was outside their jurisdiction (as defined by law



ultra vires

as defined by law), and its jurisdiction and the scope of the IRS.



4. In general terms, the appellant said that, following the article. 104

paragraph. 3 Constitutional Act No. 1/1993 Coll., Constitution of the Czech Republic (hereinafter referred to

"the Constitution") may, in the limits of its competence to issue

generally binding decrees, and to issue such legislation the municipality

does not need additional legal warrant (except in the area of taxes and

fees). Elaborated of the cited provision is section 35 para. 3 (b). and)

municipal establishment; in accordance with this provision, then section 10 of the municipal

the establishment of the material defines the areas in which the municipality is entitled, without further

legal authorization to form the right. For these areas, however, that

subject to generally binding decrees must be local affairs.

The municipality also cannot edit issues which are reserved to the legal

modify, or questions which are already governed by rules of private law

or the public. In a separate scope of vice versa according to § 35 para. 1

municipal establishment does not cover matters which are by law conferred on the

regions, and issues that belong to the workers by the authorities of the municipality

or within the scope of, which is a special law conferred on the administrative authorities

as the performance of State administration.



5. As stated by the appellant, was the maintenance of the decree issued under section 10

(a). and the establishment of municipal, i.e.) to secure local affairs

public policy. From the observations of the city as the appellant showed

the city responded to the security situation in amusement arcades and their

the immediate vicinity (following on the report of the police of the Czech Republic from

on 26 April. 3.2010). The existing Regulation No. 2/2009 concerning the operation of

slot machines in the city had proved ineffective as a result of

the fact that after its adoption so far regulated gaming machines

(hereinafter referred to as "AWP") was replaced by the so-called. videoloterijní terminals (

"VLT"), which, although not the AWP, but their meaning is the same. Because

to higher stakes and winnings is their "social danger"

higher than the AWP. For the purpose of the decree introduced a legislatively-technical

the acronym "winning", an activity that could harm the public

policy, considers the operation of lotteries or other similar games using

povolovaných technical equipment on the basis of § 50 para. 3 of Act No.

202/1990 Coll. on lotteries and other similar games, as amended

Regulations (hereinafter referred to as "Lotteries Act") and defined the space where they can be

the winning equipment operated.



6. According to the applicant, it is the scope of legal regulations according to § 10 (a). and)

municipal establishment of limited by the fundamental rights and freedoms. The provisions of article. 26

paragraph. 2 of the Charter of fundamental rights and freedoms ("the Charter")

While reserves the fixing of the terms and conditions for the exercise of certain

occupation or economic activities Act. Business in the area

gambling is comprehensively regulated by the lottery just by law,

including the performance of State administration in the area, the determination of the substantive

belonging to the authorisation of the Lotteries and other similar games, as well as

as possible to the area of the ingerence. In this sense, it can be

generally binding Decree in a separate scope to regulate only the AWP,

and in the manner set out in § 17 paragraph 2. 11 or § 50 para. 4 lottery

the law (just in such a way the city followed in the case of Decree No.

2/2009). The chosen procedure, however, the city came into conflict with the article. 26

paragraph. 1 of the Charter and has hit into questions reserved according to § 50 para. 3

the Lotteries Act the Ministry of Finance (authorisation of lotteries and other

similar games which are not regulated by law) of a mega millions,

the exercise of State administration.



7. When allowing lotteries and other similar games that are not covered in

Lottery Act is, according to the plaintiff should be adequately used parts

the first to fourth of the Act, and whether or not the provisions of § 4 para. 2,

which stores take into account in the issue of permits and to issue public

all right. In this respect, the Ministry of finance from 1. 6.2009, introduced

the measure, which has to take into account when issuing an authorisation pursuant to § 50 para. 3

the Lotteries Act the relevant decrees of municipalities issued according to § 50 para. 4

the Lotteries Act (VHP), or the opinion of the Community (granted by the

the initiative of the Ministry may permit municipalities to cancel). Therefore, it is no longer in

the exercise of State administration guaranteed the observance of public order. For

the status quo would be the town of Františkovy Lázně should contact

The Ministry of finance, for example. with the proposal to cancel already granted

authorisation, and not pursue generally binding Decree.



8. For regulation of lotteries and other similar games povolovaných

The Ministry of finance pursuant to art. 50 para. 3 the Lotteries Act generally

binding decrees so according to the applicant, there is space. This would

the intervention in the field of State administration, which is confirmed by various legislative

recent initiatives (prints No 33, 47 and 138 on the

the agenda of the meetings of the Chamber of deputies from the 7. 12.2010). Nevertheless, representatives of the city

insist on the opinion, that in the exercise of State administration by a decree in question

do not alter (if so, so rather than excessively), only protects the public

order in the city, and definitely do not arbitrarily restrict any area

business activities (only eliminate the causes of the intervention in public

okay); State supervision in the field of lotteries and other similar games in itself

itself does not guarantee adequate protection of the public order.



9. With reference to the Constitutional Court, SP. zn. PL. ÚS 34/02 of July 5. 2.

2003 (N 18/29 SbNU 141; 53/2003 Coll.), the rapporteur pointed out that the


Self-Government, among others. Unable to exclude on its territory of the reach of State power and

the functioning of the public administration, which in the present case, the town of Františkovy Lázně

adoption of the decrees in question has made. The appellant reiterated that

the competent authority for the issue of the decision, including the assessment of

impact on public policy, the Ministry of finance. The perceived

the shortcomings of the State administration on the section cannot duplicate the issue generally

binding decrees; such an interpretation of section 10 (b). and municipal establishment) is

extensive and in breach of article. paragraph 104. 3 of the Constitution. In addition, the experience

a collision with the article. 26 of the Charter, since the Ordinance restricts the activity whose regulation

reserved by law to the governmental authority. For these reasons, the appellant

its a separate scope has acted



ultra vires

; the appellant noted the possible conflict with article 14(2). paragraph 104. 3 of the Constitution, article. 26

paragraph. 1 and 2 of the Charter, section 10 (a). and) and § 35 municipal establishment. In conclusion, the

the appellant said that, with regard to the Constitutional Court, SP. zn.

PL. ÚS 28/09 dated March 2. 11.2010 (368/2010 Coll.) it is appropriate to repeal the entire

the contested Decree, and not just the article. 3 (2). 1, for without this

the provisions of Decree no whole, lacks.



II.



The observations of the interested party



10. Pursuant to § 69 para. 1 of the law on the Constitutional Court was a copy of the proposal

posted to the town of Františkovy Lázně as a party. Participant in its

the observations, which were delivered to the Constitutional Court of 3 October. March 2011,

opposed the opinion of the appellant, and also with the abandonment of

the oral proceedings. Said, why should the proposal to repeal the Decree

rejected.



11. a participant stated that the scope of the control of municipalities to issue generally binding

the decree establishes the § 35 para. 3 (b). and the establishment, according to the municipal) which

the municipality in the exercise of a separate scope within the meaning of § 35 para. (l) of the municipal

the establishment of controls when the issue generally binding decrees of the law. This

lawful command corresponds to the definition in § 35 para. 1 and 2 of the municipal establishment

indicating areas in which the municipality is authorized to originárně (i.e. without

additional legal authorization) form the right. Municipal establishment yet

in its paragraph 10 (a). and in such an area it considers) the local

matter of public policy.



12. Furthermore, the appellant said that, based on local knowledge and

citizens of the city and experience its considers the operation of lotteries or other

similar games using the technical equipment that is or may be

permitted on the basis of § 50 para. 3 the Lotteries Act, an activity,

that demonstrably disturbs public order in the city. Therefore, it is necessary to

This activity in the interest of the citizens of the city, spa guests and other bodies

to regulate. The VLT is associated with the operation of a negative phenomenon of gaming

dependencies, or Tor. problem gambling. This dependency has a negative effect on the

the affected person and persons in its surroundings, can lead to crime. How

shows mj. the opinion of the police of the Czech Republic from 26 March. 3.2010 and

from the report of the municipal police of Františkovy Lázně, occurs in connection with

the operation of the facility for public disorder in the city.

So the party takes the view that, in addressing the public

OK the operation proceeded in winning devices within their

a separate jurisdiction, in the interest of the city and its citizens and in accordance with the

by law, i.e. section 10 (b). and municipal establishment).



III.



The statement in intervention of the proceedings



13. in accordance with § 69 para. 2 of the Act on the Constitutional Court took advantage of the public

the Ombudsman of its right to act as intervener and

on 8 June 1998. March 2011, it was the Constitutional Court delivered his statement, in which the

suggested rejection of the application for annulment of the decrees in question. He also suggested from

because of the suitability of the join now proceeding with the proceeding held under SP. zn.

PL. ÚS 28/10 (Ministry of the Interior on the proposal to repeal the provisions of the

article. I and the provisions of article. II. 2 generally binding decrees of

Chrastava No 5/2009 determining the sites on which it can be operated

videoloterijní interactive terminals).



14. the intervener stated that it believes that section 10 (b). and) municipal

setting up allows you to regulate the activities of officially accepted and officially

illegal, including the operation of slot machines or

other types of lotteries as defined in section 2 of the Lotteries Act, if

This is a local matter of public policy.



15. the relationship between § 50 para. 4 the Lotteries Act and section 10 (a). and) municipal

the establishment is to be dealt with according to the rules



lex posterior derogat priori

Since § 50 para. 4 the Lotteries Act was enshrined by the amendment made by

Act No. 148/1998 Coll., which was adopted before the effective date of the new

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

Of the Constitutional Court. Both provisions are intended to safeguard public policy

and good manners in the village. The only difference is in the fact that according to § 50 para. 4

the Lotteries Act can be used to operate the AWP on some publicly available

completely disable the locations, while according to section 10 (b). and municipal establishment) can be

prohibit certain activities only in public spaces. On the one

side according to the text of a provision to regulate the municipal

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

slot machines, on the other hand is a complete ban on limited

only the public spaces in the village.



16. According to the Ombudsman, the Ministry of the Interior's opinion relies on

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

the Lotteries Act] and can lead to absurd consequences. According to this

Indeed, the opinion a municipality may proceed (section 50, paragraph 4, the Lotteries Act)

only the operation "slot machines", however, if

Instead, "face off" practically the same or similar technical

devices with significantly troubled impact, village its

with legislative competence to take advantage. Such an approach is considered the protector of

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

was to anchor the general clause that gives a wide space for municipalities

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

referred to as the municipality has not acted ultra vires and do not need to solve complex

the defining question of the difference between AWP and VLT.



17. In terms of the so-called. four-step test [see find SP. zn. PL. ÚS 63/04 on

on 22 November. 3.2005 (N 61/36 SbNU 663; 210/2005 Coll.)] the municipality of his authority and

the scope of the abuses. If, for example, has banned in its territory

Lottery "Lotto" or "happy ten", this could be a

misuse of powers. In the case of the VLT, which holds virtually exactly the same

function as the VHP, of abuse cannot speak. The village here exercised its

legitimate permission to regulate activities that effectively threaten the

public order in the village over the operation of the AWP. Evidenced by mj. (I)

a series of reports by the police of the Czech Republic; These reports are located in the file

The Constitutional Court and the protector of the had the opportunity to meet with them.



18. Defender then for completeness, that the Ministry of finance

progressed on a number of permit illegally, because they had violated the rules for

the authorisation in question the highest bets on one game, the highest hourly

Finalist, time of validity, etc. Although the lottery law

Ministry in the provisions of § 50 para. 3 when issuing an authorisation obligation

apply, mutatis mutandis, the provisions of section first to fourth of this Act,

the Ministry failed to meet this obligation. Representation of the applicant that the

When issuing an authorisation pursuant to § 50 para. 3 the Lotteries Act was

guaranteed compliance with the public order, of the knowledge acquired

Defender during his investigation, not based on the truth.



19. The Ombudsman also stated that section 43 para. 1 the Lotteries Act

It also allows for "the authority that the lottery or some other similar game,

cancel the authorization if subsequently arise or come to light

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

allow, or be shown Additionally that information, under which it was

permits issued are delusional ". Therefore, if the Constitutional Court finds

the conclusion that municipalities are entitled to regulate according to section 10 (b). and) municipal

the establishment and operation of the VLT, the Ministry of finance should cancel the

permits, which are issued in contravention of relevant generally binding

decrees.



20. In conclusion, the intervener added that the wording of article. 3 generally binding

the decree is seamless (vice versa is useful) as it logically

notes that for the non-observance of the Decree may be penalties, and is

also a guide how to solve the conflict between local editing of public policy

(the normative legal Act) and who have been granted official authorization (individual

legal Act). This solution is to move both acts on the one hand to the collision

the area of sanctioning proceedings and to the proceedings for the remedy of defective

the individual administrative acts by those ways that knows the administrative code,

the rules of Court of the administrative and Lotteries Act.



21. On 28. 7. The Constitutional Court received additions in 2011 expression of public

the Ombudsman, the Constitutional Court has sent the so-called. a report on the investigation and


Additionally as pointed out the broader context, which emerged within the framework of its

investigation to the Ministry of finance, which was conducted in parallel with the management

before the Constitutional Court. The Ombudsman pointed out that the procedure

The Ministry of finance can be used in a number of aspects can be considered as illegal.

According to him, the Ministry of finance for the acceptance of technical equipment

like the AWP properly provisions of the second part of the indicators of the lottery

the law, in particular for some time at all it did, whether the approved

location does not breach the prohibition of their operation in schools,

school facilities, establishments and social and health care, etc. In addition, the

Although permission to VHP issued for a maximum period of one year, betting

Games operated through other technical game controllers

the Ministry permitted the for a period of 10 years.



IV.



A replica of the applicant



22. To the above argument the appellant its non-responded

delivered by the Constitutional Court on 25 April. 3.2011, in which mj. its assent

with the abandonment of the oral proceedings.



23. the representation of the party to the proceedings the applicant stated that the

the document contains no new facts; with předestřenými claims

the appellant is no longer deal in administrative proceedings and, therefore, in that regard,

referring to his proposal to repeal the Decree.



24. the Ombudsman's argument the appellant States that the

on the contrary, believes that the law should be seen as the



lex specialis

Therefore, a special law to municipal establishment. Therefore, in the case when these two

the legislation, among which is the relationship between General and special legislation, regulating the

the same question of law shall be used on a priority basis the special regulation. Legal

the interpretation of the referenced by the Ombudsman cannot admit the applicant, and

in particular with regard to the special nature of the activities of

the operation of lotteries and other similar games.



25. If the Ombudsman criticises the fact that the legal opinion

the appellant relies on a narrow definition of the concept of slot machine and

possible consequences resulting from this absurd, the applicant observes that in

This matter governed by mj. definition of the concept of slot machine in the long term

supported by the Ministry of finance, as the central authority of the State

management of lotteries and other similar games. The Interior Ministry is not

review the legal opinions or the legality of the procedure of the Ministry of finance.

The task of the Ministry of the Interior is not even review a de facto state that

According to the guardian came as a result of an unlawful procedure

The Ministry of finance, but only the formal examination certificate

the decrees in question. According to the legal opinion of the appellant municipality as well as

is not entitled to in response to the poor performance of State administration, if any, on the

Department of supervision of lotteries and other similar games to the competent

administrative authorities or in the case of the perceived shortcomings of the existing legal

the Edit to proceed to issue the Decree on the basis of extensively understood

section 10 (b) of the mandate. and municipal establishment).



In the.



26. On 15 December. 7. The Constitutional Court received a submission 2011 Union game industry

The CZECH REPUBLIC, o. s., in which the civil and interest group through

opposition to the contested Decree, which in his opinion in violation of

the constitutional order, and in particular article. 26 and article. 3 (2). 1 of the Charter, as

exposing the operator of unequal treatment. The Constitutional Court could not

This expression as procedural, for the Union game

the industry of the CZECH REPUBLIC, o. s., is not and cannot be a party to or a side

a party to this proceeding (cf. find SP. zn. PL. ÚS 52/3 of 20 October.

10.2004; N 152/35 SbNU 117; 568/2004 Coll.), but to information

contained in this letter in its deliberations as he watched (cf. paragraphs 39

up to 42).



Vi.



The progress of public hearings



27. On 7 December. 9. in the case of the 2011 held public oral proceedings, which

representatives of the Interior Ministry, the city of Frantiskovy lazne and

the Ombudsman. The parties in the course of an oral hearing

did not design the implementation of further evidence and remained on their written

proposals and observations. In the final speech of applicant's representative

He stated that he was known to the Constitutional Court in the matter of Chrastava.

The Ministry is srozuměno with the fact that by the time the new legislation have

the municipalities the right to modify and regulate, in substance, the area of gambling within the definition

pursuant to section 2 (a). (e)) the Lotteries Act. However, the town of Františkovy Lázně

observing that section 10 (b). (d)) of the Act on municipalities, with reference to § 50 para. 4

the Lotteries Act, but takes advantage of section 10 (b). and the law on municipalities), which

means that regulates activities that may disrupt public order.

Ministry of the Interior is of the opinion that this area should not be dealt with

This legal mandate, since the Ministry of finance in the framework of the

the permitting process examines the potential breaches of public order.



VII.



The constitutional conformity of the legislative process



28. Pursuant to § 68 para. 2 of the Act on the Constitutional Court, the Constitutional Court shall examine

First, the question of whether the legislation was adopted and issued within the limits of

The Constitution laid down the competence and 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 Františkovy Lázně meets these criteria. From the written

the documentation which the applicant has submitted to the Constitutional Court, it follows that

Decree No. 1/2010 on the local security matters of public policy

in the field of gambling restrictions was approved at a meeting of the Council

the city held 24 June. 2.2010, while 10 voted for its adoption of the

of the total 13 representatives. On 26 April. 2.2010 was the Decree posted on the

the official Board of the Municipal Office of Františkovy Lázně, from where it was removed the day

15.3. 2010, thus after the expiry of the fifteen-day statutory time limit.

Generally binding Decree No. 1/2010 was released constitutionally Conformal

manner and in accordance with article 84 paragraph. 2 (a). (h)), § 87 and 12 municipal

the establishment.



VIII.



Own assessment of the contested provisions of the Decree



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

the contested provisions generally binding decrees with the constitutional order or

by law, the so-called. four-step test [cf. award of 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 gradually had the power to make a village

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

the municipality when issuing the contested provisions of generally binding decrees

moving outside the law defined the factual scope of application, that is, whether the

has not acted ultra vires (step 2 test), whether the municipality when they are released

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

the municipality of adoption of the contested provision clearly acted unwisely (step 4

test).



VIII. And



In terms of assessment 1. the test step



30. the Constitutional Court, within the first step of the test found that the municipality has released

generally binding Decree contested 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.

Award of 17 December. August 1999, SP. zn. PL. ÚS 5/99 (N 112/15 SbNU 93,

216/1999 Coll.) or the finding of 11 November. in December 2007, SP. zn. PL. ÚS 45/06

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



VIII. (B)



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



31. the Constitutional Court also reviewed the contested provisions with regard to 2. and (3).

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

the village when they release tableaux, ultra vires, i.e.. among the factual

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

regulatory powers of municipalities in the area separate the scope of the article directly.

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

10 of the law on municipalities, which define the substantive areas in which is a municipality

entitled to no further legal authorization to form the right.



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

additional legal authorization to issue generally binding decrees; to

Security on local matters of public order may stipulate, a village

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

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

only in places and in a time of generally binding decree intended,

or provide that in certain public places in the village are

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

shall be entitled to lay down binding conditions for organizing, progress, and termination of

public accessible sporting and cultural undertakings, including

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

to provide for the obligation to ensure the 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, § 10

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

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




33. For all of the above benefits in the area of individual

at the same time, subject to regulation can be only local

matters which the municipality regulates in the interests of the municipality and citizens of the village, not

the Affairs of the wider (national) importance.



34. The Constitutional Court notes that the question of the regulation of so-called ' location.

Interactive VLT (also also ILV or VLT)

generally binding decrees of municipalities dealt with in its award of 14 July 2004.

6.2011 SP. zn. PL. ÚS 28/10 (202/2011 Coll.), which came to the conclusion that the

municipalities are called upon to this regulation on the basis of paragraph 10 (a). (d)) of the municipal

setting up, respectively, § 50 para. 4 in conjunction with article 2 (a). e) lottery

the law. In the present case, it is possible to refer to the conclusions already

The Constitutional Court in the previous award, because as the Constitutional Court

said regulation of the VLT in the competence of municipalities

undoubtedly falls. The Constitutional Court will deal with in the previous award

all of the appellant's objections, including a possible collision with the article. 26 paragraph 2. 1 and

2 of the Charter of fundamental rights and freedoms, which the appellant applied, even now

the proposal under consideration.



35. now considered generally binding Decree from the Decree, as assessed in the

the previous management, however, varies by the city Františkovy Lázně was considered

It is empowered to adopt such a regulation, on the basis of General provisions

section 10 (b). and municipal establishment). Beyond the scope of the foregoing, it was therefore

to be in these proceedings to examine whether it was not an act



ultra vires

or the scope of it, that the municipality has released a generally binding Decree

by reference to other provisions of the Act [section 10 (a)) of the municipal establishment], than

It's that it directly to the appropriate regulation empowers, or by reference to the

a special law, and that as the basis for the issue generally binding decrees

the content has acknowledged in his previous award as well as the Constitutional Court [i.e. section 10

(a). (d) municipal establishment) in conjunction with § 50 para. 4 and section 2 (a). (e))

the Lotteries Act].



36. To its existing case-law referred to above, the Constitutional Court States that the

in the interpretation of the statutory provisions defining the scope of the communities within the meaning of

section 10 of the municipal establishment cannot, of course, lose sight of the wider

constitutional context. The right of territorial self-governing units on

Government is a constitutionally guaranteed right (article 8, and the seventh head of the Constitution).

The Constitution itself directly nevyjmenovává the specific areas in which the right to

territorial self-government can implement, and confers on the determination of the details

law pursuant to art. paragraph 104. 1 of the Constitution (such as e.g., § 10

municipal establishment), this does not mean that the constitutional guarantee of the right to

the territorial Government is formally only by establishing reservations exhausts

the law. The constitutional guarantee of the right to territorial autonomy has no doubt

material aspect; implementing the Act constitutionally guaranteed content cannot

the right to territorial autonomy to empty or effectively eliminate it. In

the earlier findings of the Constitutional Court largely contented himself with content

the delimitation of the areas in which it may constitutionally guaranteed the right of municipalities to

the territorial Government to implement, as defined in section 10 of the municipal establishment

(cf. Wagner E., Dostál M., Langášek t. and Pace I.:

The Constitutional Court with the comment Prague, ASPI, a. s., 2007, pages 330-331).

However, in finding SP. zn. PL. ÚS 30/06 of 22 March. 5.2007 (N 87/45 SbNU

279; 190/2007 Sb.) in paragraph 19, the Constitutional Court in the light of the legal provisions,

the Court held that "separate the sphere of competence of the municipalities of adjustable

generally binding regulations within the meaning of the constitutional order guaranteed

territorial governments fall matters, which are mainly local

or regional impact and whose edit is in the interest of the community and its

no doubt, for example, citizens: a guarantee of local affairs

public order, maintain the cleanliness of streets and other public

open space, environmental protection, green buildings and other

public green spaces, use of the facilities of the municipality serving the needs of the public

(cf. the provisions of § 10 of the Act on municipalities), villages (cf. territorial development.

the finding of the Constitutional Court SP. zn. PL. ÚS 9/04 of 25 June. in January 2005, a collection of

the decision, Volume 36, finding no 13, promulgated under Act No. 90/2005 Coll.). ". In

the next sentence, noted that the area of "territorial self-government

essentially a custom ". It could not think of anything other than that these areas of

the nature of things fall into the sphere of territorial self-government and local government

units cannot be completely deprived of the possibility to exercise its political

will and participate in public regulation of phenomena in these areas

present, the does not have to become a constitutional guarantee of the right to territorial

Government an empty proclamations.



37. with regard to the subject under consideration now generally binding regulation

the Decree, it is notorietou that the lottery and other similar games to occur

mainly on the outskirts of socially accepted activity, of course, to the extent

different according to the type and parameters of the game. His real impact

can adversely affect the individual fates of individuals, their

nearby and also as a result of the wider area. Indeed, not for nothing are in

the General language of these games are referred to as gambling. The phenomenon of the so-called.

pathological gambling in today's social situation occurs

more and more often. Games room, tempting you to instant and seemingly easy winnings

have become a typical colour not only the outskirts of Czech cities, but even

their centres and smaller communities, and with all the successive

socially harmful activities represent a threat to public

order and of peaceful coexistence in the village. The intention of these activities in their communities

the territory controlled from this perspective, it seems like a legitimate target.

The Constitutional Court therefore concluded that such an interpretation cannot be accepted

podústavních legislation that would ultimately lead to the denial of a constitutionally

the guaranteed rights of territorial self-governing units of self-government in the

meaning that the village would have been deprived of the possibility to make decisions in the form of generally

binding decrees about where they may be present in their territory

the establishment of lotteries and other similar games, no matter what it is

their internal technical arrangement. Whether this permission to

the level of legal provisions, will rely on a special law within the meaning of section 10 (b).

(d)) of the Act on municipalities, or whether it will be based on a general clause, § 10

(a). and the law on municipalities) in order to secure local affairs

public policy, do not seem essential. In this sense, it is

It should also be to interpret the previous finding of the Constitutional Court in this field.

Indeed, a comparison of section 10 (b). and municipal establishment and §) 50 para. 4

the Lotteries Act implies that both provisions substantively overlap (in

to that effect, in addition, the Constitutional Court has serious doubts as to whether this

region as a whole should not be entrusted with the exercise of self-government legislation

municipalities, and thus cause the proposal under consideration now rather lies not in

the legislation contained in the Lottery Act).



38. the Constitutional Court also considered whether the conduct is not



ultra vires

or the scope of the text of the article. 2 of the Decree, according to which it can be

videoloterijní terminals, or slot device povolovaná according to § 50

paragraph. 3 the Lotteries Act operate only in a single building in the

the city, and how the Constitutional Court found in this building should be

the Casino, which resulted from the information contained in the representation of the Union game

the industry of the CZECH REPUBLIC. The Constitutional Court first weighed, whether such a restriction is in the

accordance with the provisions of § 50 paragraph diction. 4 the Lotteries Act, which

It provides that "the municipality may provide generally binding decree issued in

separate the scope of that slot machines can be operated

only in places and at a time designated by Decree, or provide for, on which

publicly accessible areas in the village is the operation of slot

devices prohibited. ". He came to the conclusion that this provision

does not preclude the operation of the municipality only in one location in the village,

even if it was just and only casino.



39. Such a decree, however, the village at the same time regulates the rights and obligations in

basically exactly tailored to the body, which is not typical for

normative acts, but the acts of the application of the law. The Constitutional Court was therefore

built before the question of whether such a regulation, which by its nature is not

General, but a specific, individually designed property, respectively.

the owners or operators of gaming devices located in them,

abuse is not covered by the municipality and ultimately is not illegal and

unconstitutional.



40. the Constitutional Court has already in many of its decisions stated that the definition

the character of the concept of law or legal regulation is its universality, giving reasons

staying on the requirement of universality of the legislation are the separation of powers,

equality and the right to own, independent judge [cf. find SP. zn.

PL. ÚS 40/02 of 11 March. 6.2003 (N 88/30 SbNU 327; 199/2003 Coll.) or

find SP. zn. PL. ÚS 36/05 of 16 February. 1.2007 (N 8/44 SbNU 83; 57/2007

SB.)]. In finding SP. zn. PL. ÚS 24/08 dated March 17. 3.2009 (N 56/52 SbNU

555; 124/2009 Sb.) then the Constitutional Court traktoval that exception, which

compliance with legislation governing can be accepted unique (specific)

the case is a situation where such regulation does not constitute a violation of the principle of


equality. Regulation of unique cases and divide them from the scope of

universality must be objectively justified by the clear and must not

be an expression of arbitrariness. At the same time, however, it is necessary to have when dealing with these

kautelami in mind that the Constitutional Court expressed in relation to the

legal standards, which by nature must be having a large degree of

universality. Apply without any further requirement of universality to the same extent on

generally binding decrees, which regulate the activity and consequences of human

activities in the municipalities, according to the local conditions, would be inappropriate. In

the relationship to generally binding decrees, in particular, indicate where on the basis

express statutory authorization [paragraph 10 (a)) of the municipal establishment or section 50

paragraph. 4 the Lotteries Act] specific locations (whether the designation district,

the streets and their parts and the village square, or the end of a small village), it is necessary to

the requirement of universality to interpret the regulation so that the definition of places

must be based on rational reasons, neutral and non-discriminatory in relation

to specific persons to which regulation when an application turns out. Unless

the reason for defining the specific locations of the circumstances or the nature of things,

Finally, the village, which generally binding decree issued in the proceedings, the obligation to

before the Court such a rational and neutral grounds to present and defend.

In proceedings before the Constitutional Court, those considerations apply when reviewing in General

binding decrees within 3 or 4. the test step.



41. In the present case cannot be overlooked include the fact that the town of Františkovy Lázně

the town of Spa, which city seemed motivated to

to operate the VLT by Decree as follows in principle

limit and vytěsnilo only to the areas that are already so as to

gambling intended. Even in this respect, therefore, the Constitutional Court found the hearing



ultra vires

or misuse of powers. Indeed, the same conclusion follows from the provisions of § 10

(a). and municipal establishment), according to which the municipality may establish "that

activities that could disrupt public order in the village ..., can be

only in places and in a time of generally binding decree intended,

or provide that in certain public places in the village are

such activities are prohibited ". The Constitutional Court therefore considers that such

expression individualisation is not arbitrary or illegal discrimination, but

on the contrary, it considered rationally reasoned that if it is already in the

City-nota bene Spa-allowed to operate casinos, it is logical, if

the operation of games of chance shall focus solely and exclusively there.



42. Another relevant reason for the requirement of universality is then according to the

the case-law of the Constitutional Court, to personalised subjects

to obtain a direct judicial protection; the operative legislation

individualized case is the contrary, deprives the Court of protection, which would

These entities have received in the case of the individualization of the application path.

rights in the form of release of individual legal acts (cf. find SP. zn.

PL. ÚS 36/05 of 16 February. 1.2007; N 8/44 SbNU 83; 57/2007 Sb.). So it

However, in this case it is not. In finding SP. zn. PL. ÚS 28/10 of 14 April. 6.

2011, the Constitutional Court came to the conclusion that this is a village that is empowered to

the regulation places, on which the location of the so-called. innominátních lotteries prohibited

but deciding on their permits within the jurisdiction of the Ministry of

the Treasury, which is obliged to municipal regulation in its decision

take into account. This model so any equipment does not relieve the operator

judicial review, since they have the possibility of legal action against

the decision of the Ministry of finance. The Administrative Tribunal is entitled to assess then

all the individual circumstances of the case, i.e.. or whether the municipality

the inclusion of the text of the decree had not acted in an arbitrary or

in a discriminatory manner. It is also the Administrative Court, which has the option in this section

generally binding Decree do not apply where appropriate (see, by analogy, find sp.

Zn. PL. ÚS 5/07 of 30 November 2005. 4.2008; N 80/49 SbNU 165; 287/2008 Coll.).



43. This procedure shall also apply in the case of no doubt already issued

the authorization. How the Constitutional Court stated in that finding SP. zn. Pl. ÚS

29/10 of 14 April. 6.2011 as soon as the Ministry of finance finds a collision

permits issued containing generally binding decrees, is duty bound to from the

the law, to initiate the procedure for the review of these permits and do

terms of § 43 para. 1 the Lotteries Act. That provision

assumes the cancellation of permits issued, not only in the case when they come out

In addition to light the facts, for that would not be a lottery or

another game allow, but also if these facts occur even after

the issue of permits. If the Finance Ministry does not flow, it is

on the contrary it, which interferes with the constitutional law on territorial self-government of municipalities.

The Constitutional Court therefore preliminary point, that in this case could go

not only to the individual concerned, for example, the protection of communities in the field of

the municipal constitutional complaints, but as already mentioned above, also

He had to weigh whether the Division of powers between the State and territorial

Government in this area, and the conferral decisions on permit place

establishment of lotteries or other games on the territory of the municipality, the Ministry of finance

constitutionally guaranteed rights compliant from the perspective of the territorial Government

(cf. above paragraph 37 in fine).



44. The Constitutional Court because of above reasons, did not find that the

the town of Františkovy Lázně, the adoption of the Decree was



ultra vires

or voted out or sold its scope of activities.



VIII. (C)



Assessment 4. the test step



45. The Constitutional Court finally assess the decree with regard to the criteria

reasonableness, and here, too, was led by the legal conclusion arising from the

the previous award SP. zn. PL. ÚS 29/10. When you use the same standards

came to the conclusion that, even in the light of these criteria, the contested Decree

will stand.



IX.



The conclusion of the



46. in the light of the above, the Constitutional Court did not find the reasons for the

cancellation of generally binding decrees of Františkovy Lázně, no 1/2010

Security on local matters of public policy in the area of limitation

gambling, and therefore the proposal was in accordance with § 70 para. 2 Act No. 182/1993 Coll., on the

The Constitutional Court rejected.



The President of the Constitutional Court:



in the z.. Holländer in r.



Vice Chairman