Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=43107&nr=168~2F1995~20Sb.&ft=txt
The Constitutional Court of the Czech Republic
On behalf of the United States
The Constitutional Court of the Czech Republic held on 7 December. June 1995 in plenary on
the President's proposal to repeal section 34 of the Act of the Czech National Council
No 360/1992 Coll., on the exercise of the profession of Chartered architects and performance
the profession of Chartered Engineers and technicians active in construction, in
the text of the law No 166/1993 Coll. and no 275/1994 Coll.
The proposal is rejected.
On 20 April. in January 1995, the Constitutional Court received a proposal from the President of the Republic on the
the cancellation of the provision of section 34 of the Act of the Czech National Council No. 360/1992 Coll., on the
the profession of authorised architects and on the exercise of the profession of
Chartered Engineers and technicians active in construction, as amended by laws
No. 166/1993 Coll. and no. 274/1994 Coll., conflict with the article. 1 of the Charter
fundamental rights and freedoms proclaimed by the Bureau of the Czech National Council
under no. 2/1993 Coll., as part of the constitutional order of the Czech Republic and
article. 1 of the Constitution of the Czech Republic.
The appellant stated that law No. 360/1992 Coll. introduced with effect from
7.7. as a specific condition for the pursuit of activities
under construction to obtain authorization in the appropriate field. Eligibility verification
authorization is required by law to natural persons, if they want to carry out the selected
professional activities in construction. Legal and natural persons operating
According to the commercial code can perform selected activities in construction
also only if their performance by authorized persons
(employees). The condition for obtaining the authorization are: citizenship of the United
Republic and permanent residence in the Czech Republic, full capacity to
capacity, integrity, a university degree in a relevant discipline, professional
practice in the prescribed length, passing the proficiency tests
and the composition of the prescribed oath.
The law in section 10 and 11 set the conditions of the withdrawal and
the suspension of the authorization; in section 12 to 16 persons authorized stores
obligations, which include the obligation to take out insurance of responsibility
for damages caused by the exercise of this activity (section 16) and the obligation to submit to the
disciplinary responsibility and disciplinary proceedings (sections 20 to 22) when
violation of the obligations provided for in this Act.
The provisions of § 34 of the law No. 360/1992 Coll., as amended by law No 166/1993
SB. and no 275/1994 Coll., allows persons possessing the permission to
project activity or a certificate of special competence to perform
activity in the construction, issued under the provisions which applied before
effect of Act No. 360/1992 Coll., i.e.. 7. 7.1992, exercise
selected activities under this Act. To obtain permission or
certificate referred to in the previous edit (Act No. 50/1976 Coll., on the territorial
planning and building code (the building Act), as amended by Act No.
103/1990 Coll. and Act No. 265/1992 Coll., Decree of the Federal
the Ministry for technical and investment development no. 8/1983, Coll.
Special eligibility to certain activities in the construction, as amended by
Decree No. 73/1987 Coll., Decree of the State Commission for scientific, technical and
investment development no 186/1990 Coll., on permissions to project activity) and
for the exercise of these occupations pay significantly less challenging conditions,
than were introduced by law No. 360/1992 Sb. The legislature therefore, in
the original § 34 of this Act has established the validity of previous permissions
only on a transitional-period-within one year from the effective
of the Act (i.e., to 7. 7.1993), which then extended by Act No. 166/1993
SB. until 31 December 2006. 12.1994.
The purpose of this transitional arrangement is to citizens for a specified period
applying for authorization, had the opportunity to meet the conditions of the Act and submit
required elements and the relevant Chamber, which the law only established,
to secure the new permissions for the organizational competence to perform in
intended construction disciplines and activities.
The intention of the transitional measures is evident even from a valid article. (II)
Act No. 265/1992 Coll., amending and supplementing Act No. 50/1976 Coll.
on urban planning and the building code (the building Act), as amended by law
No 103/1990 Coll., according to which legal and natural persons operating in the
the scope of the construction industry cannot, after the expiry of the selected activities
under construction to ensure the absence of a prescribed licence training
The demanding performance requirements of occupations in selected professions in
construction projected throughout the Act No. 360/1992 Sb.
justified public interest protection of third parties, for example. with regard to the
safety of buildings, the compulsory statutory insurance, etc. So far, they have not been
the legislature amended and applies to all citizens.
The last modification to the law No. 360/1992 Coll., Act No. 277/1994 Coll.
However, section 34 was dropped only until 31 December 2005, the period ". 12.1994 ', and so on
contrary to the original intention of the legislature is a transitional measure, the law
become a permanent part of statutory adjustments.
As a result of such legislation is so specific categories of persons allowed to
unlimited time to perform a qualified construction and project
the activity, which is a significant public interest, without prescribed authorization.
The appellant assessed the extent is this legal situation in accordance with the
the constitutional principle of equality in the Rights expressed in the article. 1 of the Charter
fundamental rights and freedoms, which is viewed as a relative legal
equality bodies, and that requires that the same law is applied for
the same factual circumstances. In this regard, the appellant was based on the
decision No. 11/1992 collection of resolutions and of the findings of the Constitutional Court of Czechoslovakia,
the Constitutional Court also relied on, for example. in their findings, no. 3 and 9
Collections of the findings and resolutions of the Constitutional Court of the CZECH REPUBLIC, volume 1. Of this policy
It follows that unjustified differences, which are in breach of this policy, you must
be regarded as unconstitutional.
The legislature in the contested section 34 of Act No. 360/1992 Coll., as amended by
amended, introduced two different modes of the conditions for the performance of a single
business, not for rational or objective reasons. The reason,
that was expressed in the explanatory memorandum to the Act No. 277/1994 Coll., that "this
the issue will be settled, a new statutory by modifying the following
the amendment to the building regulations ", cannot be accepted. The rapporteur is unable to act,
commit ourselves to what or not to accept in the future Parliament.
The applicant in the contested provisions of the finds and infringement of article 81(1). 1 of the Constitution,
According to which the Czech Republic is the rule of law based on respect for the law.
One of the principles of the rule of law is the principle of legal certainty, which is
indicating for each the democratic rule of law (see no. 15/1993
Collections of the findings and resolutions of the Constitutional Court of the CZECH REPUBLIC). The fact that the legislature
has made only change to section 34, of the transitional measures has made the status of permanent
and this nepromítl to the successive provisions of the Act
dealing with the rights and obligations of authorized persons (i.e., what would the new
legislation authorization should apply to persons who have been
granted permission or certificate to pursue activities in construction pursuant to
the old prescriptions, for example. compulsory insurance, disciplinary responsibility),
infringed the principle of legal certainty, as it has in mind the cited article. 1
Of the Constitution.
Parliament of the Czech Republic, as a party to the proceedings in its observations that
the President of the Chamber of deputies signed Milan Uhde, stated that the
the legislature acted in the belief that the law is in accordance with the Constitution
and the laws of the United States, and that is now on the Constitutional Court, in
the proposal of the President, to assess the constitutionality of this
the law and issued the appropriate decision. Expressed his belief that the contested
the legislation, the purpose of which is to keep various types of permissions up to
the time when the matter comprehensively dealt with the new law, does not breach the
the principle of equality because it is the will of the legislature, whether the previous
the license shall declare sooner or later for the equivalent permissions
permission obtained by the law or not.
The Constitutional Court found the laws, that under no 360/1992 Sb.
declared the law of the Czech National Council of 7 April 2004. May 1992 on the exercise
the profession of authorised architects and the practice of the profession of Chartered
engineers and technicians active in construction. According to 34 persons who have been
granted permission to the project activity, or a special certificate
eligibility to pursue activities in construction pursuant to existing legislation
(Act No. 50/1976 Coll., as amended by Act No. 103/1990 Coll. and Act No.
262/1992 Coll., Decree of the Federal Ministry for technical and
investment development no. 8/1983, Coll., as amended by Decree No. 73/1987 Coll., and
Decree of the State Commission for scientific, technical and investment development no.
186/1990 Coll.), can perform selected activities under this Act
only within one year from the effective date of this Act. The law became
effective on 7. July 1992. Before the end of the annual period of the day
on May 20, 1993, however, the Parliament of the Czech Republic Act No. 166/1993
Coll., amending and supplementing Act No. 360/1992 Sb. I, point 2
This amendment was made that in paragraph 34 the words "only within one year
from the effective date of this Act "are replaced by the words" only until 31 December 2005. December
1994 ". Legislative developments of this legislation was completed by law
Parliament of the Czech Republic from 28. December 1994 no. 277/1994 Coll., which
section 34 was the Czech National Council Act No 360/1992 Coll., as amended by Act No.
166/1993 Coll., amended so that the words "only until 31 December 2005. December 1994 "
Also from the collection of laws, as well as from the communication of the President of the Chamber of Deputies
The Parliament of the United Kingdom, the House of the press No. 1299 and těsnopisecké
reports of 25. a meeting of the Chamber of Deputies, the Constitutional Court further found that the
The Chamber of Deputies discussed the second amendment to the Act on the basis of
initiative Member Miloslav Excellent and an additional 12
members of Parliament. The petitioners in the explanatory memorandum stated that law No.
360/1992 Coll., inter alia, established the Czech Chamber of architects and the Czech
Chamber of Chartered Engineers and technicians active in construction, which
was entrusted with the grant on the basis of written applications and under the conditions
authorization provided for by law, the law defines as permissions
natural persons for the performance of professional activities in construction and at the same time as the
special condition for the operation of the business. Transitional provision of § 34
acknowledged, to the exception from this principle to selected activities by
the Act of exercising and the person that has been granted permissions to the project
activity or a special certificate of eligibility to pursue activities in
construction according to present regulations and without authorization, but only to 7.
may (July correctly) 1993 and later to 31. December 1994.
The proposed amendment is expected to cancel this limitation completely, with the
This issue will be settled, a new legal norm in following up on the
the amendment to the building code. The draft of the law deal with economic
Committee, the Committee for public administration, regional development and the environment
and the Committee for science, education, culture, youth and sport and all three
the committees have recommended its approval (print 1364). At the meeting
The Chamber of Deputies a draft amendment to Act No. 360/1992 Coll., on
amended by Act No. 166/1993 Coll., motivated Member of the Joseph Ullmann, who
conclusion of the explanatory memorandum divorced so that the original time limit was based on the
the assumption that during 1994 there is a comprehensive legislation to
professional chambers, which, however, did not happen because they were not accepted the amendment or
the building Act and the Trade Licensing Act, or for example. the law on high
schools, and, therefore, will be a time limit of validity of the permission to
project activities and special certificates of eligibility to pursue activities
under construction for now altogether until a new and better law
Unable to resolve this matter better. A meeting of the Chamber of Deputies on 8.
December 1994 there were 117 members, of which 110 members
voted for, 1 member of Parliament voted against, 3 MEPs vote
and 3 members didn't vote. The Chamber of Deputies remained on
the law of 27 July. December 1994 after President of the Republic, and
It also required an increased kvórem. This fact is declared
by order published under no. 277/1994 Coll. law was signed by the competent
constitutional actors and have been duly declared.
The Constitutional Court then found out how it stores § 68 para. 2 of law No.
182/1993 Coll., on the Constitutional Court, that the contested act was adopted and published in the
the limits of the Constitution laid down the competence and constitutionally prescribed way.
Then, also according to § 68 para. 2 Act No. 182/1993 Coll., Constitutional Court
judged by the content of section 34 of the law No. 360/1992 Coll., as amended by law No.
166/1993 Coll. and no. 274/1994 Coll., whose cancellation was designed by the President of the
States referred to in article. 87 para. 1 (b). and the Constitution and § 64) para. 1 (b). and)
Act No. 182/1993 Coll., in terms of its conformity with the constitutional laws and
the international treaties referred to in article 10 of the Constitution.
Category of equality enshrined in article 1 of the Charter of fundamental rights and
freedoms, the violation of which is the proponent of the law accused of belong to those
basic human rights which, by their very nature are social values
konstituujícími the value of the order of the company. In the social process holds
These values feature rather just ideally typical categories representing
destination ideas, which could not fully cover the social reality and can be
is the only way to achieve the aproximativním. Equality should, therefore, become
universal, each social form and the phenomenon is affecting, the principle of
only in the objectives of the social and historical development, in the framework of this
However, development on its consistent compliance with the appeal only in certain
the limits. There is no recipe to determine what should be
straight, but can, in the opinion of the Constitutional Court, have doubts about the
that egalitarian universalism would necessarily evoked a deeply dysfunctional
social effects. Each equality in society can therefore only be
equality "on the March", the shape of the continuous development, the oscilování in the
the area of tension between the continuum of total equality and efforts to
total inequality substitutes the custom destination idea. Equality may
Thus, congruent with the realities in specific base data, otherwise
because of the tendencies of its extensive and intensive growth in the
effort to set in place may be on the border, which can exceed
only at the cost of violating for example. freedom. As one of the basic conditions
social and historical process is so equality is placed completely
follow into a relationship with freedom, with which each other makes and finds himself
based on how peer support, as well as conflict. So as far
egalitarian requirements threaten the very essence of freedom, it is also
the other way around. For all these reasons it would appear, therefore, to the Constitutional Court as a
inadequate tendency to squeeze every effort to achieve equality in the framework of
establishment of fundamental human rights, which by their nature extend over over
"the politics of everyday life". It also means that the inequality in
social relationships, to touch the fundamental human rights, must
to reach the intensity of the questioning, at least in a certain direction, already very
the essence of equality. So is usually done when there is a violation of the
equality and violations of other fundamental rights, for example. the rights of the
to own property under art. 11 of the Charter of fundamental rights and freedoms,
one of the political rights according to art. 17 et seq. The Charter of fundamental
rights and freedoms, the rights of national and ethnic minorities referred to in article. 24 and
subs. The Charter of fundamental rights and freedoms, etc. Indeed, while freedom is
the content given by the essence of the individual, directly calls for equality generally
"" middle men "," relationship to other social value. How should result from
Furthermore, for the reasons given in this decision, in the present case lacks
the complainant alleged a violation of the principles of equality, it was this her
relation to other fundamental rights, and thus the intensity of the shifting is to
the plane of the fundamental human rights.
Grounds for the proposal to repeal section 34 of Act No. 360/1992 Coll., as amended by
amended, can be summed up in the statement that the legislature has introduced two
different modes for the performance of a single profession, for which it had
rational or objective reasons. The applicant in the contested provisions
finds a violation of article. 1 of the Constitution, according to which the Czech Republic
a sovereign, unified and democratic rule of law based on respect for
rights and freedoms of man and citizen. One of the principles of the rule of law is
According to the opinions of the applicant and the principle of legal certainty, which was allegedly
tampered with mj. the fact that section 34 of the law of December the transitional measures has made the status of the
permanent. The point is that the legislature has provided that persons who have been
granted permission to the project activity, or a special certificate
eligibility to pursue activities in construction pursuant to existing legislation,
can perform selected activities under this Act.
It was therefore necessary to tackle the essence of the existing legal
the State, which regulates the valid construction Act (Act No. 50/1976 Coll., on
amended by Act No. 103/1990 Coll. and Act No 264/1992 Sb.) and the implementing
the regulations issued for its implementation (in particular Decree No. 8/1983, Coll. in
amended by Decree No. 73/1987 Coll. and Decree No. 187/1990 Coll.). Building
the law establishes the basic conditions of eligibility for some
activities in the construction (section 45 et seq.). For a more detailed edit contain
referred to in the implementing rules.
For the purposes of these regulations, the "special ability" (as a summary
theoretical knowledge, practical experience and skills acquired to
proper performance of the selected actions, which is of crucial importance for the
protection of the interests of the company and associated with the preparation, design,
the authorisation procedure, implementation and kolaudováním structures) validates the test. According to the
§ 6 para. 1 of Decree No. 8/1983, Coll., as amended by Decree No. 73/1987 Coll.,
is the essence of that central authorities of State administration lays down the test
decorations, fillings factual tests and the scope of the examination by the Commission. According to § 12
paragraph. 1, 2. Decree of Central State administration bodies are obliged to
at least once every five years to secure additional training of the holders
licences, where holders are required to undergo a written test or
another form of validation of knowledge of supplementary training. If the holder of
the card does not carry for more than five years of work, for
which the licence has been issued, may also carry out this activity only after
the previous completion of supplementary training. According to section 13 of the Ordinance, the cit.
If the authority finds the State construction supervision, that workers who have
card specific competence, its activities repeatedly infringe the interests of the
companies in the construction, the competent authority of the State Government initiative to
review of specific competence. They are also in the sense of § 14 of the Decree.
modified the terms of withdrawal of the licence.
Detailed conditions for the procedure for granting permissions and special
eligibility governs the Decree No 187/1990 Coll. lays down inter alia. terms and conditions
education and experience that is necessary to certify in application for testing. On
This Decree is then recalled by Annex No. 2 of the Trade Act (law
No. 455/1991 Coll., as amended) which, under the heading
213-bound trade-GROUP: construction-under the scope of the project
activities in investment construction, specifies a certificate for the performance of
This "permission to project activity (licence of the Special
eligibility) "according to § 2 and 5 of Decree No. 187/1990 Coll.
Trade Act also provides for the General and special conditions
trade, the scope of a trade licence, the obligations of the
the entrepreneur, as well as the conditions for the cancellation of a trade licence.
At the same time lays down the penalties for violation of the Trade Act. In a given
the case is therefore the trade law instantiated provisions art. 26
paragraph. 1, 2, of the Charter of fundamental rights and freedoms, according to which everyone has in
the limits of the law, the right to do business. To do this, it should be noted that in the legal
the order can be found numerous rules and regulations, which are based on the principle of
acquired rights, and the one who passed the various tests that qualify for the performance
profession under the old standards, can be carried out, even if the new rules
down in the future, other assumptions. It is therefore normal that the test
carried out under the old rules, applies after the release of the new regulations (which
even for a variety of titles, such as granted. in the field of higher
education and scientific rank). Even in these cases, the legislature
is based on the principle of legal certainty and confidence in the law. Specific cases
they are then dealt with in the transitional and final provisions of the relevant
In the light of the above, it can be stated that the persons doing business as
the above provisions are established in accordance with the Act on the basis of a duly
acquired rights (inter alia, in charge of the Trade Act and regulations
the downstream), which may be withdrawn or restricted by law,
the content and the issue is in the competence of the legislative power, namely the Parliament and
as such, reflects its legitimate political will.
Therefore, if the legislature decided to edit in the future of the profession
the profession of authorised architects and engineers and
technicians in the construction, it does not change anything in and of itself on the legal
the situation of those who do business on the basis of the existing regulations. Is
However, the political will of Parliament Affairs, how to adjust the performance of certain
professions, or trades that are carried out in accordance with the existing
regulations. In this case, it happened so, that the current permissions
remain in force according to the law. As indicated above, it is not in the legal
order of things unusual, because lawmakers so often progresses. in the interest of
to ensure confidence in the acquired rights, legal certainty and stability of legal
position. In the present case is a sure legislative movement in the will
Parliament as regards the text of § 34. Act. This is, of course, in our
a dynamic legal system fairly frequently. The fact that section 34 of the Act.
passed certain legislative development process, does not constitute, in the opinion
The Constitutional Court of its unconstitutionality, as it represents the current
legitimate political will of Parliament as expressed in the form of law.
If the alleged infringement of equality rights, concluded on
the basis of the above facts and considerations, the Constitutional Court concluded that in the
the present case does not breach the Constitution. Parliament, in an effort to preserve
acquired rights ruled that, after considering the situation kept so far
permissions in effect. Like any law, and this applies to the time
any other subsequent legislative solutions. As regards the principle of the
equality, is the opinion of the Constitutional Court and the former
Slovak Federal Republic published under no. 11 Collection resolution
and the findings of the Constitutional Court of CZECHOSLOVAKIA in 1992, that the principle of
as for equality of relative equality and special standards may provide for
specific scopes specific criteria. In the present case the evaluation scales
legal certainty, stability and the protection of the acquired rights (that represent the
whether or not the public values), Parliament decided in the transitional provisions
keep the existing permissions in effect. In the opinion of the Constitutional Court
in this particular case it cannot be considered a violation of the principle of
equality, which would warrant a repeal of the law for his conflict with the
After examining the proposal, the Constitutional Court has made a finding that the alleged infringement of article 81(1).
1 of the Constitution, according to which the Czech Republic is a sovereign, unified and
the democratic rule of law based on respect for the rights and freedoms of man and the
the citizen, under which term the appellant podřazuje and the principle of legal
certainty and article 1 of the first sentence of the Charter of fundamental rights and freedoms, in accordance with
which the people are free and equal in dignity and in rights, represents the
in the case of a general statement, that in connection with the analysis of the
the legal situation does not justify the finding of unconstitutionality of section 34 of the law No.
360/1992 Coll., as amended. As well as the Constitutional Court
He found that the impugned provisions of the Act is not in conflict with other
constitutional law or international treaties under article. 10 of the Constitution, and
Therefore, a proposal dismissed pursuant to section 70 para. 2 Act No. 182/1993 Coll., on the
The Constitutional Court.
The President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.
1. Different opinion of the judges. Paul Holländera, JUDr. Ivana Janů,
JUDr. Vladimir Jurky, JUDr. Zdeněk Kessler, JUDr. Paul Varvařovského
and JUDr. Eva Zarembové
Different opinion, filed to the operative part of the award, which rejected a proposal from the
the President of the United States to repeal the provisions of § 34 of Act No.
360/1992 Coll., on the exercise of the profession of Chartered architects and performance
the profession of Chartered Engineers and technicians active in construction, in
the text of the law No 166/1993 Coll. and no. 274/1994 Coll., is based on the
the following reasons:
I. pursuant to section 34 of Act No 360/1992 Coll., as amended by law No 166/1993 Coll. and
No. 277/1994 Coll., persons who have been granted permission to
project activity or a certificate of special competence to perform
activities in the construction under the previous legislation, to carry out the selected
activities under the Act No 360/1992 Coll., as amended.
That provision, however, does not address the question of whether these persons
a provision for disciplinary liability, compulsory membership in the Chambers
etc. Does not include namely the diction, according to which such persons have acquired the status of
"authorized persons" under the Act No 360/1992 Coll., as amended
regulations. This fact is the reason for the examination of the conformity of
the legal provisions with the principle of legal certainty, which is part of the
categories of rule of law (article 1 of the Constitution of the Czech Republic).
Legal certainty is not meant to be absolute unchanging law or
his "statics". In that context, it is understood in the sense of certainty and
consistency of meanings of legal attribution text, IE. as the certainty of
determination of content uniformity of law and their application, such as
the same decision in the same cases. Legal certainty is therefore
that opinion, in the context of the legal provisions
means the predictability of State authorities in the application of the law, and that
in terms of the attribution of meaning to the legal text and in terms of subsumpce
the facts under the legal standard in deciding. The certainty of the
determining the content of laws, or the meanings of legal text depends
the certainty of the legislative provisions and the legal
the interpretative procedures.
In general it can be concluded that the uncertainty of a particular (a) the provisions of the
legislation to be considered rozpornou with the requirement of legal
certainty and, therefore, the rule of law (article 1 of the Constitution of the Czech Republic),
only when the intensity of this uncertainty excludes the possibility of
determination of the normative content of the provision and by using the usual
the interpretative procedures.
In the present case, the contested provisions of the uncertainty interpretation
Bridge cannot, and cannot therefore be concluded that the
the person that has been granted permissions to the project activity, or
certificate of special competence to perform activities in construction pursuant to
the previous regulations, also apply the provisions of the disciplinary
liability, compulsory membership in the Chamber, etc., or it is not.
II. the provisions of section 34 of the Act No 360/1992 Coll., on the exercise of the profession of
Chartered architects and on the exercise of the profession of Chartered Engineers and
technicians in the construction, as amended by law No 166/1993 Coll. and no.
277/1994 Coll., the provisions of intertemporálním, řešícím the relationship of
the Act, as amended by the amendments to previous legislation (Act No. 50/1976
Coll. on territorial planning and building regulations, as amended by Act No. 103/1990
Coll. and Act No 264/1992, FMTIR Decree No 8/1993 Coll., on special
eligibility to certain activities in the construction, as amended by Decree No.
73/1987 Coll., Decree No. 186 SKVTIR/1990 Coll., on permissions to project
activities). Intertemporálním law in General must be understood
"regulations governing the time conflict of laws" (j. Sedláček, the clash
laws, in: commentary on the Czechoslovakian General Civil Code,
Part I, red. F. Rouček, j. Sedláček, Prague 1935, p. 107).
In the framework of the intertemporality of law may arise in particular
cases where the new law formulates different assumptions of the legal
status, as well as cases where the new law replaces the legal
Institute, contained in the repealed legislation, the new Institute. This is the case
as well as in the present case.
The amendment to the Act No 360/1992 Coll., as amended by Act No. 166/1993 Coll.
Act No. 277/1994 Coll., the clash of the new law of time (no 360/1992 Sb.)
and laws of the cancelled solved compared to previous state
in a different way.
From the entry into force of Act No 360/1992 Sb., IE. from the 7. July 1992 to
December 31, 1994, was a conflict of legislation dealt with by setting the deadline,
after which take the effectiveness of new legislation for the bodies
have satisfied the conditions for acquisition of the status of authorized architects,
civil engineers or engineers under the previous legislation. In
respect of new and old legal regulation therefore apply a;
with the commencement of the effectiveness of the new arrangements for a particular stage
a group of subjects was postponed before a specified date.
In contrast to this resolution contained in § intertemporality, 34
Act No 360/1992 Coll., as amended by Act No. 166/1993 Coll., amendment
Act No. 277/1994 Coll. for the same group of bodies jamming the wrong
the retroactive effect of the new legislation (i.e. Act No 360/1992 Sb.) and the
an exception for it, i.e.. determined the status of the subjects ' circuit, admits
authorized architects, civil engineers, or technicians in accordance with the new
the legislation without conditions, which this new legislation
to obtain it requires.
The legislature thus modified the time clash of two laws in two
various, consecutive, ways. From the point of view of the Constitution
the assessment is as a result of this procedure, the answer to two questions.
The first issue is the constitutional reasonableness or neakceptovatelnost
This resulting from inequality and the second is the question of the constitutional "space", which
the legislator when determining the available intertemporálních
1. In the present case it is the disparity between, on the one hand,
persons who have completed certification to exercise professions authorized
architects, engineers, and technicians in the construction under the previous
legislation and in anticipation of losing his status as the end of the law
deadline, have received authorization by the new legislation and, on the
the other hand, persons who have been certified to the exercise of professions
authorized architects, engineers, and technicians in the construction
also under the previous legislation and was subsequently built on the
assimilated persons, authorization, according to the new legislation. For more
inequality is the inequality between persons engaged in the profession
authorized architects, engineers or technicians based on authorization
According to the new legislation and the persons engaged in this activity on
the basis of a certificate obtained under the previous legislation.
The Constitutional Court of the Czech Republic in a number of the findings (especially # 3 and 9 Collections
the findings and resolutions of the Constitutional Court of the Czech Republic. 1) identified with
understanding of the constitutional principle of equality, as expressed in the Constitutional Court
CSFR in decision No 11/1992 collection of resolutions and of the findings of the Constitutional Court
CZECHOSLOVAKIA: "it is for the State to ensure its functions, decided that
a certain group will provide fewer benefits than others. Even here, however, must not
do whatever you want. ... If the law specifies the benefit of one group and
at the same time lays down the obligations of the other, the disproportionate to happen only with
citing the public value. "
In the present case, the legislature explicitly procedure, establishing an inequality,
such a procedure was not substantiated and cannot be implicitly from the legislation
inferred. The finding of the explanatory memorandum that nota bene not the opinion of the
the legislature, but the petitioner's law, that the issue will be in
the future dealt with, in terms of the constitutional assessment is irrelevant.
Thus it cannot identify with the opinion that "it is the will of the
the legislature, whether the previous obtained permission to declare sooner or later
for the equivalent permissions permission obtained by law or
not ". The will of the legislator, however, must not be libovůlí and, therefore, if
This legislation establishes an inequality, is obliged to your progress both
justified by citing the public value and, secondly, this procedure may not
the other Constitution guaranteed the principles.
In the case in question not only absentuje rationale by the legislator referring
the public value, but also occurs to disrupt one of the fundamental
the principles of the rule of law-the protection of citizen's confidence in the law: "who acted in
confidence in a law, does not have to be disappointed in their trust "(j. Sedláček,
Time conflict of laws, in: commentary on the Czechoslovakian general code
civil, also red. F. Rouček, j. Sedláček, Prague 1935, p. 108).
Those who have acted in reliance on the provisions of section 34 of the Act No 360/1992
Coll., as amended by Act No. 166/1993 Coll., therefore, in anticipation of the loss of their
the status of the expiry of the time limits laid down by law have gained new authorization
legislation or of her bid, was mocked-up retroaktivitou of the law
No. 277/1994 Coll. is caused by the effect of that conduct legally relevant
According to the previous edits on the basis of the effect of the new legislation has become
legally irelevantním. This was the principle of the protection of citizen confidence in
the law, which are an important part of the concept of the rule of law.
Modifying the provisions of § 34 of Act No 360/1992 Coll., as amended by law No.
166/1993 Coll. and no. 274/1994 Coll., introduces the apparent inequality in practice to
the access performance of the same profession and different responsibility for eventual
damage which may arise from the exercise of those activities.
Persons who have obtained authorization under this Act, shall be subjected to
before the test, by authorization by the Council, and appointed when
the test is conducted, inter alia, the debate over the scope of professional practice
for the applicant. Permission is an authorization in the case of a successful examination
issued only to the scope in which the candidate has demonstrated professional
practice (e.g. building construction, road construction, civil engineering, etc.).
By contrast, persons who have received a certificate of special competence to
the performance of activities in the construction, or permissions to project activities in accordance with
earlier legislation (Act No. 50/1976 Coll., on urban planning
building code, as amended by Act No. 103/1990 Coll. and Act No 264/1992,
FMTIR Decree No 8/1993 Coll., on the specific competence to some
activities in the construction, as amended by Decree No. 73/1987 Coll., Decree
SKVTIR no 186/1990 Coll., on permissions to project activity), are not in the
exercise of the activity is restricted by professional specialization, but are generally
entitled to the exercise of any activity in the construction, regardless of the professional
background knowledge or experience, which is, in particular, in the design of buildings
Tests of specific competence should be largely formal and
administrative in nature. In the first stage have been prescribed primarily for
leaders of the organizations involved in the investment construction
(directors, Vice Presidents, head of the Trade Union). In the next stage, then for closer
unspecified function. If your organization, active in the investment
construction, fell short of the number of people with the prescribed licence of the Special
the eligibility of the 75%, then these organisations were not allowed after 1. April 1986 (I.
stage), or 1. April 1990 (phase II) to carry out these activities, even if
they have permissions.
Because it was all about the State-owned enterprises, often directly controlled
each of the resorts, this provision has led to inflation issued
certificate of special qualification, just to comply with the limit
eligible workers. It is estimated that the number of such certificates issued
reached a total of approximately 80 thousand, while the authorization permissions
by the end of 1994 was Issued just over 10 thousand.
The inequality of the two groups of eligible persons is even more pronounced in the
their responsibility for the damage, that in the exercise of their activities may
For the category of persons with special competence certificate, issued pursuant to
the earlier legislation, it was mostly about a person in employment (dependent)
the ratio, where damage to the customer, in fact, an organization that was
as a rule, insured for such cases. The worker was responsible
Organization under the labour code. Because the original organizations were generally
cancelled, shall be responsible for any damages the individual holders of certificates
According to the General regulations.
Because of the damage that may occur and actually also occurs in
capital construction, reaching millions of values is the compensation for
These people mostly dubious.
By contrast, persons who had been granted permissions on activities within the
authorization, must be compulsorily insured in case of damage.
These inequalities of access to the performance of activities in investment construction between
categories of authorised persons and persons with special qualifications
under the former legislation, dispute the legal certainty as regards the
qualifications, as regards the guarantee for the outcome of this activity.
The necessary unification of the conditions and the removal of inequalities was apparently
aware also of the legislature, when twice (in 1992 and in 1993)
limit the validity of the original permission to last (in 1994)
This time limitation generally unfavorable reviews. This was how to challenge
legal guarantees in the area where he plays an extraordinary role in the public interest,
to create steep inequalities between the two groups of citizens in access to
the qualified activities also in the liability for damages that this activity can
2. The second question, which in this context requires a response, the width of the
the constitutional "space", which is available to the legislature in setting
The purpose of the provisions is the removal of unjustified intertemporálních
inequalities arising from the conflicts of old and new legislation.
Intertemporalita, in the present case, refers to the embedding of different
assumptions of the legal status in the old and the new legislation. The legislature
can address a time conflict of such legislation in the following
and the first is not taking intertemporálních) provisions. In this case,
necessary to address the problem of intertemporality interpretations. Generally, in cases
time conflicts of old and new legal standards apply false;,
i.e.. from the effectiveness of the new legal standards and legal relations arising under
repealed by law, be governed by the legal norm, a new (this also applies to the fulfillment of
conditions to obtain a legal status and with it related rights).
The emergence of the legal relationships, existing before the entry into force of the new legal
standards, legal claims that have arisen out of these relationships, as well as done
legal acts shall be governed by the repealed law (a consequence of the opposite
the interpretation of conflict of law rules would be right;).
Apply here the principle of protection of past legal facts, in particular
legal venue. The consequence of this principle is the fact that
"once based legal effects if these constitute at the same time
subjective rights, remain for the new law prohibited "(A realm.
The walk, the intertemporal law Basics, Brno 1928, p. 109). This
the principle is the realization of the "legislative principle of the protection of legitimate expectation in
stability of the rule of law "(ibid., p. 111).
(b)) the second way time conflict of law rules, containing
different assumptions of the acquisition of a particular legal status, is the concept,
contained in section 34 of the Act No 360/1992 Coll., as well as in his Amendment No.
166/1993 Coll., this solution includes postponing the date of entry into force of
the new legislation for bodies, which fulfil the conditions for obtaining the
legal status under previous legislation. To these entities is so
given the opportunity to meet more demanding or other terms of the new legislation
at the same time preserve its status of kontinuitně 's.
(c) Finally, the third legislative way) the solution to the time of a collision
law, containing different assumptions of the acquisition of a particular
legal status, is a solution which comes with certain entities,
legal status according to previous legislation, be granted status under
the new legislation. Such an approach has its basis in the case when
divergence conditions to obtain the status referred to in the field of editing does not constitute
an unjustified inequality. In the framework of this legislative approach can be
classified solutions, contained in Act No. 277/1994 Coll.
When deciding on how to resolve the intertemporality is the legislature
limited by the constitutional principles of equality and protection of the citizen's confidence in the law.
Appropriate legislative solution therefore has to be an expression of arbitrariness, but would
should unroll from content comparison of old and new legislation.
Such comparison must be guided by consideration of proportionality.
The cancellation of the old and the adoption of the new legislation is not necessarily associated with the intervention
the principles of equality and protection of confidence of the citizen in the right. This occurs in
as a result of the protection other public interest or the basic rights and freedoms.
The assessment of this aspect of the conflict of proportionality with regard to the
intertemporalitu should lead to the conclusion about the kind of legislative solutions
time of conflict of laws. Proportionality can be
characterized by a higher degree of intensity of public interest, respectively.
the protection of fundamental rights and freedoms, warrants a greater degree of intervention in the
the principles of equality and protection of the right to a new citizen trust legal
regulations. At the same time apply maxima, in the case of injunctive restrictions
the basic law, or freedom, save its essence and purpose (article 4
paragraph. 4 of the Charter of fundamental rights and freedoms). When you assess how
the legislative solution therefore plays a role intertemporality not only
a measure of the differences of the new and old rules, but also the social
the urgency of the implementation of the new legislation, etc.
The legislature's decision about how to resolve time conflicts of old and new
the legislation, therefore, from the perspective of Constitutional Affairs is not fortuitous or things
arbitrariness. It is for the consideration of the standing constitutional collision
The fact that the legislature Act No. 277/1994 Coll. radically changed the solution
intertemporality old and new rules contained in Act No.
360/1992 Coll. and Act No. 166/1993 Coll., and this without any explicitly
or implicitly expressed arguments, put a sufficiently clear
that time the clash of laws addressing the way accidental, and not in a way
based on the consideration of the proportionality of the provision of the protection of the constitutional
principles. Statutory provisions, accepted that standing in conflict with constitutional
the principles of the protection of the citizen's confidence in the law, the rule of law and equality, as
are contained in the article. 1 of the Constitution of the Czech Republic and in the article. 1 of the Charter
fundamental rights and freedoms.
2. Different opinion of judge JUDr. Vladimir Klokočky
A substantial reason that leads to the submission of a different opinion to the opinion
the award, which rejected a proposal from the President of the Czech Republic for annulment of
the provisions of section 34 of the Act No 360/1992 Coll., as amended,
The subject of the proposal is to repeal the most recent version of section 34 of the Act No 360/1992 Sb.
as a result of which eliminates the obligation to obtain authorization, architects and
engineers in construction under the new regulations. Between the terms, which
He introduced Act No 360/1992 Sb., was among other things and "successful composition
examination of professional competence ". To meet the new conditions was
deadline first to 7. 7.1993, and then to 31. 12.1994.
The legislature in the Act No 360/1992 Sb., and later in the other two
novels, for a total of three times in succession repeatedly stressed the credibility
obligations whose fulfilment within a certain period requested and not leave anyone
doubt that without meeting the required assumptions cannot be
the profession of Chartered architects, engineers, and technicians to pursue.
In the meantime, undoubtedly, many of those who carry out their activity on the
under the old regulations, newly laid conditions or
fills. Until 31 December 2006. 12.1994, however, failed to meet the new conditions seemed by far the
all, who should do so.
It probably was based on the legislature in his last edit, he conducted the
However, this issue in a manner that calls into question the principles of the rule of
Last modified section 34 of Act No 360/1992 Sb. threatens the principle of equality,
in a way, that its consequences it brings certain advantages for those who
fail to comply with the obligations laid down, and that their implementation would seem to be unnecessary.
This takes away the credibility of lawmakers and citizens believe that the laws of the
are binding on all, and that it is necessary to comply with them. Such conduct
the legislature can only afford with reference to public values and not
Therefore, the only thing it intends to modify the law and does not seem to him appropriate time limit
to lengthen again.
Amendment of section 34 of the Act violates the principle of certainty that
based on the apparent contradiction between the objective of the legislator and the resources that
to achieve this goal. Against the amendment would probably not be anything
argue, if the legislature time again (i.e., for the third time)
It has specified. Lawmakers, however, apparently did not want to lay down some for the third time
a new deadline for compliance with the conditions for authorization seems all the more that the two
before the deadline, apparently were not sufficient. Therefore, simply
removed the time limit at all.
However, this change is not only changing the quantitative, but also qualitative
nature and amendment of the existing legal situation radically. The aim of the amendment is based on
explanatory memorandum the cancellation time limit "... with the expectation that this
the issue will be settled, a new legal norm in the wake of the amendment
the building Act ". Achieving this goal, however, the legislature did not address
adequate resources, as it would reflect the principles of the material
the rule of law. In terms of the rule of law is meaningless, that Parliament
in the explanatory memorandum promises a new legal problem by editing the
resolve. In this there is nothing legally binding promise. It remains only that this
the amendment returns the old legal regime before Act No 360/1992 Sb. and that
the basic postulates of this Act are being undermined, possibly even himself
the legislature had in mind.
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