In The Matter Of The Application For Revocation Of Section 78 Para. 1 Of The Building Act

Original Language Title: ve věci návrhu na zrušení § 78 odst. 1 stavebního zákona

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95/2000 Coll.


The Constitutional Court

On behalf of the United States

The Constitutional Court ruled on 22 November. March 2000 in plenary on the proposal of the regional

the Court in Hradec Králové on the repeal of § 78 para. 1 Act No. 50/1976 Coll., on the

land use planning and the building code (the building Act), as amended by


as follows:

The provisions of § 78 para. 1 Act No. 50/1976 Coll., on urban planning

building code (the building Act), as subsequently amended,

repealed on 31 December. December 2000.


The regional court in Hradec Králové, interrupted the proceedings for actions against the

the decision of the District Office in Pardubice, which was rejected as

inadmissible the appeal against the decision of the successful commissioning of the citizen of the municipality

the city of Pardubice. In the lawsuit argued that the new citizen communications built

in part, on the grounds that they are his property, was approved to

use in a State where so much terrain that exceeds the denies access to

part of his land, or the land accessible only from a different location

and through the lands of third parties. In addition, have not been met, or other

the conditions laid down in the location of the building. Therefore, under construction

the view of the citizen has been approved for use with faults that hampered the acceptance

According to § 81 para. 1 Act No. 50/1976 Coll. on territorial planning and building

Code (the building Act), as amended, (hereinafter referred to as

"construction Act"), which the building Office repeatedly said. That, however, its

comments, as well as the appellate authority, refused on the grounds that it is not

participant acceptance procedure pursuant to § 78 para. 1 of the building Act.

The regional court in Hradec Králové, after the interruption of the proceedings has submitted a thing according to the

article. 95 para. 2 of the Constitution, the Constitutional Court. The view that the provisions of § 78 para.

1 of the building Act, which is decisive for the assessment of the case, is in

contrary to the article. 1 of the Charter of fundamental rights and freedoms ("the Charter"),

justified in the following way.

Construction law in § 78 para. 1 per participant acceptance management

specifically, the owner of a builder's construction only, and the user (if applicable)

(the operator), if it is known at the time of initiation of the proceeding. In doing so, before

the amendment, which was made by Act No. 82/1998 Coll., amending

and supplementing Act No. 50/1976 Coll., on zoning and the building code

(the building Act), as amended, and amending and supplementing

some other laws, that is, at the material time for the matter under consideration,

the text of this provision, such that a party to the proceedings has been marked

only the client or user (operator), if at the time of

the initiation of proceedings is known. It is thus clear that the legislature was aware of the

the insufficiency of the then edit, the amendment, however, expanded participation in

kolaudačním control only in the direction that took into account the fact that

builders can also be a person other than the owner of the building. the tenant

(section 58 (3) of the building Act). Even the revised law, however,

remembers that it is equally possible that the builders was the person

different from the owner of the land. The owner of the land is a participant in the

authorisation procedure for the construction, commissioning of control, however, loses

the ability to control directly in the kolaudačním could assert objections against

the eventual failure of its requirements and the comments put forward in

the authorisation procedure for construction. Such a situation has occurred and in particular

When the kolaudována was located on the grounds of communication in

ownership of the citizen, who gave consent for the building, however, has established

as a condition of such a solution runs out of communications on the adjacent land,

that would enable it to management.

In the opinion of the Court with the approval of the owner of the land management

finds himself in the position of nerovnoprávném, when he is without reasonable grounds

granted fewer rights than to the client. It means that the owner of the land,

that meets the requirements of the Commissioner and agrees with the construction (for without

of this consent, the building could not be started), it loses the ability to

to participate in the proceedings, in which, inter alia, the authority of the State

competently examined whether the construction was carried out in accordance with the

documentation. In addition, such adjustment means that the owner of the land is

excluded from the right to seek judicial protection, since if it is not

a participant in the administrative procedure, it is not open to the Administration to actively

administrative action [§ 250 § 2 of the code of civil procedure (hereinafter referred to as

"CCP")]. Such a status, according to the opinion of the Court is contrary to the principle of

equality in the rights pursuant to art. 1 of the Charter.

In the Chamber of deputies of the Parliament of the Czech Republic

recalls the text of explanatory memorandum to § 78 to 80 of the building Act, in

which stresses the necessity of a different definition of the participants

building control from General editing participation according to § 14 para. 1

Act No. 71/1967 Coll., on administrative proceedings (administrative code), taking as

the reason is that the purpose must be carried out so as to

unnecessarily starting construction. Therefore, the policy applies to

the concentration of proceedings and the final should the constructions carried out

supply immediately follow up on the submission and acceptance of the works.

Additionally, the Chamber of deputies in the comments points out that the contested

the provisions of § 78 para. 1 is to be understood in the context of the whole of part two

building code-building regulations. Successful commissioning of control always

preceded by proceedings for which legal provision emphasizes the protection of the rights and

the interests of the people, which may be the intended structure. Construction management

is handled and approved by the planning documentation and

its result is the release of the decision to allow construction. Final building approval

management then it is, unlike the previous management, management, whose

the purpose is to verify whether the criteria that determine the construction authority

in the preceding procedure, the authorisation procedure for the building (or in the

the territorial decision). These proceedings are involved in always and land owner,

who has the opportunity to comment. Whereas, in kolaudačním

management is primarily about the control of compliance with the conditions laid down

by a final decision of the Building Authority, it is primarily for this

Government authority to meet its decision has verified. Extensions

building control circuit, therefore, does not consider the legislature for

appropriate, as this could impede the use of the completed buildings. In addition, the

the statement points out that the law allows the building Office

Depending on the nature of the case invited him to control other people than just explicitly specified

Parties to the proceedings. Representation of the Chamber of Deputies is ended by saying

the view that the contested provisions of the building code is not by editing the

threatening or immediately restricting fundamental human rights or


Senate of the Parliament of the Czech Republic in its statement expressed a doubt

on the contrary the contested provisions of the stage building Act with article. 1

Of the Charter. Closer then States that a landowner is a participant in the proceeding concerning

to enable the construction and in the present proceedings has sufficient space for the

the application of their comments. These comments will become part of the

the building permit. The construction authority performing State administration under section

81 to the building Act, inter alia, examines whether in the realisation of buildings were

the conditions set out in land use decisions, and in the construction permit

complied with. This concept should be enough to guarantee the protection of the rights

the owner of the land that is not its promoter, without this necessarily owner

had to be a participant in the final building approval proceedings. Therefore, also the Senate when

consideration of draft law No. 83/1998 Coll., which was made

to change the provisions of § 78 para. 1 of the building Act, did not find the reasons for

that amendment would have disagreed. Therefore, at the discretion of leaves of the constitutional

the Court will assess how the alleged contradiction of this provision with the constitutional


Ministry for regional development, to whose competence the questions for the building

management of the fall, in the opinion of the Constitutional Court, which had been requested,

especially emphasised that some of the buildings is preceded by the building

the permission of the territorial decision about location of the building, which is the result of

the administrative procedure, involving, in addition to the appellant and other

participants. A participant in this proceeding is the owner of the land on which the

construction of places and implements. Thus has sufficient space to effectively defend

their rights and law-protected interests, and provides management and it

appeal, but also with the use of other resources, which the rule of law


In the opinion of the Ministry of construction law respects the principles of the relationship

General and special legislation, according to which specific legal

Edit taken where it requires itself the substantive nature of the

maintained relationships. Decision authorising the use of the Kolaudačním construction

for the intended purpose and, if necessary, shall determine the conditions for the use of

construction. This declaratory Act is the result of the administrative procedure, in which

is (under section 81 (1) of the building Act) the Building Authority shall be obliged to

to examine whether the construction was carried out according to the documentation authenticated in

construction management and whether they have complied with the conditions set out in the territorial

decision and building permit. The duties of the Building Authority is to examine

whether the actual construction or its use will not threaten

public interests. The findings of these facts is not dependent on the participating

control. If the client proceeded in accordance with the law, has to

building a claim and in kolaudačním decision not to store

conditions which exceeded the frame of the building permit. From

This point of view is not the purpose of occupancy permit proceedings to have been

repeated objections of the landowner, which has already been lawfully

decided in the construction control or to its demands over their framework

expanded. The building is not in accordance with § 120 paragraph 1. 2 of the civil code

part of the land, the construction carried out on private land remains after

acceptance in the possession of the Commissioner, or his successors in title.

These individuals must meet all of the obligations that the building Act with

ownership of the building. Match eg. for the technical condition of the building,

bear the cost of its maintenance and removal, and ordering them to their

the cost of the necessary adjustments are made and the security work at the construction site,

are required to keep documentation of the construction, the Building Authority directs them

acquisition of documentation of the actual construction or construction (geodetic).

The owner of the land on which the building is located, the construction Act No

such an obligation does not; is not the owner of the building does not have an approved

no rights, and therefore its acceptance cannot be nor its rights

limited, says in the opinion of the Ministry. For these reasons, he was

the commissioning circuit control amendment to included the owner of the building

in cases where another person is its promoter. For example, if the tenant

the building, with the consent of the owner (lessor) makes building

editing or superstructure, does not change anything on the ownership of the building or on the

obligations of the owner. The position of the owner of the land on which the

the kolauduje foreign construction, therefore, cannot be compared with the position of the owner

approved buildings. In addition, the building Act regulates the rights of the participants

proceedings in cases where construction has been carried out in violation of zoning

the permit. Not only does such conduct punishable with hard-hitting fines [§ 105

paragraph. 2 (a). (b)) (a). 3 (b). and) and § 106 paragraph. 2 (a). (b)) (a). 3

(a). and)], but in proceedings where decisions are made about these changes,

confers and the other participant to persons whose rights and

legitimate interests or obligations would enable. Protection of their

rights is ensured and the client are in an unequal position.

According to the opinion of the Ministry is the design of the regional court in Hradec Králové

must also be assessed in isolation, that the provisions of paragraph 1 only

§ 78 building Act and the provisions of paragraph 2, which

kolaudačním control in the participation and protection of the rights of other persons. In

cases where construction was made with minor variations compared to the

the documentation authenticated in the construction control, and the construction authority merged control

their authorisation with the management of kolaudačním, the parties are also those

which belonged to this position in construction management. The changes that are

more than irrelevant, may lead to the removal of the building according to § 88 para.

1 (b). (b)) to the building Act. The circle of this control is defined in

in § 97 para. 1 of the building Act and the owners of land and buildings are in the

It expressly included.

Those facts lead to the conclusion that the Ministry are not grounds

for the repeal of § 78 para. 1 of the building Act, as it is not in breach of article.

1 of the Charter. In case of cancellation of this provision would be a circle of

the final building approval proceedings given by the only § 14 of the administrative code. Such a situation

the Ministry shall be deemed for the purpose of occupancy permit proceedings

unacceptable, unnecessary, burdensome administrative procedure byrokratizující

public administration free of expenses and not nepřispívající to protect


To the above observations, and the opinion of the appellant, in replica responded

in particular, stated that they could not identify with the opinion that the

final was only the management of authentication, which would be the owner of the

the land developed foreign construction had nothing to say. The appellant pointed out,

that almost always occurs in the construction of a number of changes of different importance. Decree

No 132/1998 Coll., which implements certain provisions of the construction

the law, § 32 para. 1 (b). (c)) provides that the Building Authority will draw up when

kolaudačním control protocol that provides a comparison of the actual

implementation of the finished structure with proven construction project documentation

by the Office and an inventory of the anomalies, deficiencies and arrears. Pursuant to section 81

paragraph. 4 building code may be associated with kolaudačním management control

on the change of the construction (according to § 68), if the actual implementation of substantially

don't stray from the documentation. However, the Act or the implementing rules

where, what is the "variation", and this vague legal concept

It is on the basis of the free thoughts of the Building Authority applied to the specific

status. Depends only on its sole discretion, whether the changes will take as irrelevant

Note only, or whether it will order the proceedings about them, eg. and the procedure for

the removal of the building. The Building Authority is therefore in particular things always built

before you troubleshoot a variety of possible situations and to draw from them adequate

the findings, according to navrhovatelova opinion, cannot do without the coordination with the

the owner of the land. Therefore, the claim that the acceptance of the construction cannot be

without prejudice to the rights and obligations of the owner of the land, your rapporteur considers it

unacceptable. In conclusion, your rapporteur recalls that the replica design on

repeal of § 78 para. 1 building code does not track induction condition

the circle of control was defined by the General provisions of section 14 of the administrative

regulations, but he created the conditions for the amendment of this provision.

After considering the content of the proposal, the observations of the parties and after considering

expert opinion, Ministry for regional development, as well as considering the

přednesů party made at the hearing on 22 November. It was March 2000 plenary

The Constitutional Court concluded that the proposal is to be upheld, and that of the

the following reasons.

The Constitutional Court in particular was forced to ask the question whether specific

the definition of a specific circuit of public management excludes

the general definition of the participants in the administrative proceeding pursuant to § 14 para. 1 administrative

of the order. To this question, then answered in the affirmative, and in this respect, therefore, the plenary

The Constitutional Court's opinion finding the authorization in korigovalo I TC 279/95

published under no. 73, St. 8 Collections of findings and resolution of the TC of the CZECH REPUBLIC. Each

a different interpretation would some of the administrative procedure was cumbersome and

often time-unbound. The general definition of a participant of the administrative

proceedings under the code of administrative procedure can be applied only in those cases

where special arrangements certainly does not exclude.

Conclusion of the General and specific definition of the participants of the administrative

control then must necessarily lead to the conclusion that it is necessary to insist that

the legislature with a specific definition of the intervention did not rule out a priori

bodies, for which the possibility of interference with their rights, the nature of the proceedings

reasonably be expected. As regards the present case, the approval of management, here

have to agree, that is a matter for the discretion of the sovereign

the Building Authority, whether it will be noted that the terms of the zoning and planning decision

and the decision to allow the construction of have been met. Then use the building to

intended purpose shall permit and, if necessary, shall determine the conditions for

the use of the building. If it finds deficiencies, it shall designate a reasonable deadline for their

the deletion. Approval does not have to issue in respect of deficiencies,

that endanger the health and safety of persons or to have prevented on your summary

smooth and steady use of the building for its intended purpose. In the case of

the findings of deficiencies that impede the use of the Building Authority shall set a deadline for

remove them and shall stay the proceedings. This description of the possible

the factual situation is clear, that the owner of the land on which the building

stands, can only rely on the fact that the public authority will

to protect not only the interests of the public, but also the interests of his. Yet in the opinion

The Constitutional Court seems to be common ground that the admission of the participation of the owner

the land could not control in any way seriously complicate and possibly

nedůvodně extended. In particular, such participation was efficient for the reasons

practical, because probably it cannot be expected that the acceptance of the

calls will draw attention to himself, something he doesn't mind. View state

authorities then, of course, may be different than the sight of the landowner,

or other person concerned, without having had to act on the part of this

authority of intention or negligence. In other words, if the Building Authority

zkolauduje something that our not, or whatever had our s

finding defects and specifying the time-limits for their elimination,

There is no one open to appeal or to invoke any

the court proceedings. For these reasons, therefore, the Constitutional Court also asked whether

the owner of the land on which the building is made, it may be in their

subjective rights without prejudice to the kolaudačním decision, responded

positively. In other words, that the owner of the land is excluded from the management

administrative, and consequently also of the right to judicial protection, shall be deemed to

The Constitutional Court for misconduct by the legislature, which has a constitutional dimension.

Such an error can, in principle, having regard to the applicable legal

adjustment, in two ways. Either by changing the provisions of § 250 paragraph. 2 CCP,

that would have admitted the evidence to submit to the administrative action, not only the participants

the administrative procedure, or direct the derogations provisions of part of a particular

the substantive legal regulation of public law, in which the participation

defined in a manner conflicting with those principles. The Constitutional Court considers the

manifestly more rational procedure second derogation of a particular

provision of substantive public law, which permits (usually for

provided the following active actions of the legislature) protection of the rights

certain people already in the administrative proceedings. The first path, thus a mere confession

the right to bring administrative action, could in many cases mean that

any appeals court decision could be issued at the time when

There would often be changed could not state, respectively, could be remedied

only at a price disproportionate casualties or losses on the side of the other, and the court verdict would

so could only have meaning rather academic.

In this context, the Constitutional Court considers it appropriate to add that already exists in the

practice of the first Supreme Administrative Court can be recorded

a tendency to admit in the administrative procedure, also called protection. special interest

(e.g., the specific situation of landowners adjacent to the public

goods, e.g.. with the roads). In the words of the then case law "is to be

in concreto of fine modulation, if applied for, the firearm really

a special sacrifice for the benefit of the whole ". In the opinion of the Constitutional Court is hard to

acceptable to the dominance of fundamental human rights and freedoms

mandatory legislation defined the position of some operators in the

public management more adversely than was defined by the Court of

the case-law in the prewar period. Additionally, you cannot look through the fact that

the tendency to seemingly precise and detailed editing of the de facto precludes the

the interpretation that could be found in a particular case the solution more

the principle of decency and sanity.

The argument that the law enables the Building Authority invited him and others

than the participants (see representation of the Chamber of Deputies), does not alter the fact

that such invitations from them does not make the parties with all described

the consequences.

Given the adverse position of certain bodies is amplified by the definition of

bodies actively to submit administrative action legitimised under section 250

paragraph. 2 the practical impact of the CCP is such that although article. paragraph 36. 1 of the Charter

giving everyone the right to claim the set procedure, their rights in court or

another institution and paragraph 2 of the same article defines the circle of persons entitled

apply to the courts in administrative matters, so that it can make everyone

"who claim that their rights was truncated by a decision of the public authority

the Administration "can, in some cases, apparently, in this case specifically in

the case of the final building approval, be a situation where even if you clearly

the impact of the decision on the rights of third parties will not have these persons to

no resource available to reverse such a decision (with the exception of

the initiative to review the decision outside the appeals procedure according to § 65

Code of administrative procedure, on which, of course, is not a legal claim). Put another way, the mandatory

editing makes it impossible to implement the policy "will let everyone's guard

their rights ", which the Constitutional Court has repeatedly reminded (e.g. find no 32,

SV. 13, a collection of awards and the resolution of the TC).

Of all of the above reasons, the plenary adopted the decisions of the Constitutional Court

to whom the provisions of § 78 para. 1 of the building Act be repealed, and that for

conflict with the article. paragraph 36. 1 and 2 of the Charter. At the same time, the Constitutional Court ruled on the

delay of the enforcement of its decision, knowing that the removal

neústavního the State of positive intervention is required (whether the legislature

just by adding the final building approval procedure for circuit owner

the plot, or a more general treatment).

The President of the Constitutional Court:

JUDr. Kessler v. r.

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