168/1995 Sb.



FIND



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.



as follows:



The proposal is rejected.



Justification



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

eligibility-authorization.



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 "

Emit.



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

laws.



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

The Constitution.



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.



Different views:



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

provisions.



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

the precarious.



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

arise.



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

possibly arise.



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

intertemporálních provisions.



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

ways:



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

principles.



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,

is this:



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

State:



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.