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
