The Constitutional Court
On behalf of the Republic of
The Constitutional Court ruled under SP. zn. PL. ÚS 6/13 day 2. April 2013 in plenary
in the composition of Stanislav Package, Vlasta Formankova, Turgut Güttler, Pavel
Holländer, Ivana Janů, Vladimir Crust, Dagmar Lastovecká, Jan Musil,
Jiří Nykodým, Pavel Rychetský, Miloslav Výborný and Michael on April
the design of the town of Klatovy, represented by JUDr. Jiří Štanclem, lawyer, AK
established Ms. legions of 172, 339 01 Klatovy, on abolition of the provisions of article. (II)
section 4 of Act No. 300/2011 Coll., amending Act No. 202/1990 Coll., on
Lotteries and other similar games, as amended, and
other related laws, with the participation of 1. The Chamber of deputies of the Parliament
The United States and 2. Senate of the Parliament of the Czech Republic as participants
management and of the Ombudsman as a secondary party to the proceedings,
The provisions of article. (II) section 4 of Act No. 300/2011 Coll., amending Act
No. 202/1990 Coll. on lotteries and other similar games, as amended by
amended, and other related laws, is lifted on the date of its publication in the
This finding in the statute book.
The former course of the proceedings before the Constitutional Court
Prior proceedings on constitutional complaints
1. The Constitutional Court was on 20. 6.2012 delivered a constitutional complaint the city
Klatovy directed against another intervention by the Ministry of Finance (hereinafter also
' the Ministry '), which is the Constitutional Court discussed under SP. zn.
IV. TC 2315/12. With a constitutional complaint, the complainant contacted within the meaning of
the provisions of section 74 of law No. 182/1993 Coll., on the Constitutional Court, as amended by
Act No. 48/2002 Coll., the proposal to abolish the provisions of the article. (II) section 4 of the Act
No 300/2007 Coll., amending Act No. 202/1990 Coll. on lotteries and
other similar games, as amended, and other
related acts, (hereinafter ' the contested provisions ').
2. IV. Chamber of the Constitutional Court concluded that application of the contested
provisions of the act occurred, which is the subject of the constitutional
the complaint. Since at the same time considered the constitutional complaint for not clearly
unfounded and otherwise capable of examination, held that the
the proposal for the annulment of the contested provisions is to be addressed factually.
Therefore, by order of 16 December 1999. 1.2013, SP. zn. IV. TC 2315/12 cut off
proceedings on constitutional complaints and forwarded the complainant's proposal to repeal
the contested provisions of the plenum of the Constitutional Court.
The arguments of the applicant
3. The unconstitutionality of the contested provisions constitute the appellant in that it
in conjunction with the administrative practice of the Ministry of Finance (whose intervention was
primarily the constitutional complaints is infected) temporarily suspendovalo an existing,
constitutionally guaranteed and constitutional court recognised the ability of municipalities to regulate the
the operation of interactive VLT in its territory.
4. According to the applicant, the contested provision prevents review and possible
the cancellation of the Ministry issued an authorization to operate interactive
VLT, although according to the case-law of the Constitutional Court
[find SP. zn. PL. ÚS 28/10 of 14 April. 6.2011 (N 110/61 SbNU 625,
202/2011 Coll.), finding SP. zn. PL. ÚS 56/10 of 7 April. 9.2011 (N 151/62
SbNU 315, 293/2011 Sb.) or find SP. zn. PL. ÚS 22/11 of 27 July. 9.
2011 (N 170/62 SbNU 489, 328/2011 Sb.)] as to the question of the regulation of
falls within the constitutionally guaranteed powers of municipalities. In this context,
the appellant detailed the paraphrased legal conclusions contained in the cited
the findings and confirming the constitutional guarantee of the right to self-government.
5. the appellant also expressed the belief that the contested provisions of the
does not violate the right of communities to self-government only in the sense of the provisions of article. 8 and
article. 100 paragraph 1. 1 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), but also
the provisions of article. 89 para. 2 of the Constitution, according to which they shall be enforceable
decision of the Constitutional Court are binding on all authorities and persons. Although
the findings of the Constitutional Court were directed primarily towards municipalities and ministries
the Interior and finance, according to the applicant cannot be overlooked include from the fact that
at least in finding SP. zn. PL. ÚS 56/10, the Constitutional Court clearly
comment to the effect that the regulation of gambling is an area falling under the
a range of local and regional authorities. This opinion should therefore be respected
by the legislator in adopting the law, of which the contested provision
part of the.
Representation of the parties
6. The Chamber of deputies of the Parliament of the Czech Republic (hereinafter referred to as "Chamber
the Chamber of Deputies "), on the draft expressed on 19 December. February 2013. She described the progress of the
discussion of the draft law, then published under no. 300/Sb.
While the abbreviated noted and the explanatory memorandum to the draft law,
attached. The contested provisions stated that the validity of the permit
released before the effective date of generally binding decrees of the municipality which
they are not in accordance with this Decree, will not be affected. The reverse procedure would
According to the explanatory memorandum was based inadmissible that the retroactive effect of law
It is contrary to the principle of legal certainty enshrined in the Constitution. By reducing the
the validity of existing authorisations should be according to the explanatory memorandum
the risk of Arbitration disputes led by the existing
operators. The Bill was approved by the Chamber of Deputies on 21 February 2006.
June 2011. Senate of the Parliament of the Czech Republic (hereinafter referred to as the "Senate")
the Chamber of Deputies returned the Bill with amendments that
The Chamber of deputies at its meeting on 6. September 2011, honor, and
the bill approved by the Senate in the wording of the returned. The Chamber of Deputies
refused that the challenged legislation was intended to postpone the effects of findings
The Constitutional Court, and pointed in particular to the circumstances of the time
discussion of the draft law. In this context, stressing in particular that
find SP. zn. PL. ÚS 56/10 of 7 April. 9.2011 (N 151/62 SbNU 315;
293/2011 Sb.) He was admitted only after the Chamber of Deputies a draft law
as the Senate approved a transferred. At the conclusion of his observations
The Chamber of Deputies stated that the Bill was discussed and
approved by the constitutionally prescribed way and according to the standard rules
the legislative process.
7. the Senate of the Parliament of the Czech Republic Also in its observations of 8 June.
February 2013, expressed the belief that, when adopting the Act progressed in
the limits of the Constitution laid down the competence and constitutionally prescribed way.
Specifically, the Senate said that the Bill, which, at its 19. meeting on 21 February 2006.
June 2011 was approved by the Chamber of Deputies, he was properly referred to the day
June 28, 2011. As Senate document No No 127 was commanded by Bill
Committee on economy, agriculture and transport (as the guarantee
the Committee), the Committee for territorial development, public administration and the environment
and the Committee of the ústavněprávnímu. All committees have recommended the proposal
return to the Chamber of Deputies Act with amendments. On 22 November.
July 2011, then accepted the Senate resolution, which the Chamber of Deputies
the Bill as amended by the amendments came back. On your
observations the Senate also details the contents of the present debate summarized the proposal
the Bill in the Senate.
The attitude of the Government and the Ombudsman's proposal for a
8. in accordance with the provisions of § 69 para. 2 and 3 of law No. 182/1993 Coll., on the
The Constitutional Court, as amended, (hereinafter referred to as "the law of
The Constitutional Court ") drew the attention of non-23. January 2013 via delivery
25 January 2013 the Constitutional Court the Government of the United States, and the public defender
rights on the ongoing proceedings, noting the period within which they can
control to enter as the interveners and possibly also to the design of
9. The Ombudsman on 1 May 2004. February 2013, the Constitutional Court announced that the
in the proceedings the intervener shall enter. The Government of the United States in the
the time limit laid down by law (starting February 25, 2013) your input in the management of the
did not report, and thus the position of the intervener could not testify.
Non-delivered to the Constitutional Court on 26 April. February 2013 asked JUDr. Jan
Studnicka, Director General of the Prime Minister and Cabinet sections
The Legislative Council of the Government, the judge-rapporteur to extend the period to
indication of whether the Government in the proceedings the intervener, on the one
month. Of this request, the Constitutional Court could not admit any relevance
not only because its author could be authorized for the Government in the management of
before the Constitutional Court Act, but above all with regard to the fact that
the 30-day time limit for entry into the proceedings within the meaning of the provisions of § 69
paragraph. 2 of the Act on the Constitutional Court deadline that cannot be Constitutional
the Court extended and whose judgment cannot be remitted. Observations on the
the design and then-in the form of amicus curiae brief-the Government did not.
10. The Ombudsman to comment on 1. March 2013.
Pointed out that the contested provision is not considered an obstacle to the interference of issued
authorization, since, in his opinion, in fact, doesn't work on the regulatory
permission of the municipalities existing before Amendment under former provisions of § 50
paragraph. 4 Act No. 202/1990 Coll. on lotteries and other similar games,
(hereinafter referred to as "Lotteries Act"), that is, to regulate all the technical
gaming devices like slot gaming devices within the meaning of
the former paragraph 2 (a). (e)) the Lotteries Act. Despite this
belief, however, the Ombudsman acknowledged that in the present case
i supported the annulment of the contested provisions, with a view to the long-term
(and, in his opinion, illegal) practice of the Ministry of
Finance, long-lasting intervention of the State into the constitutionally guaranteed rights of the communities on
Government (non-observance of generally binding decrees issued, including the
rejecting the possibility of cancellation of permits for the conflict with the later Decree),
the problematic procedural status of municipalities and the effective exploitation of the contested
the provisions of this law to the constitutionally guaranteed rights of communities
on the Government.
The abandonment of an oral hearing
11. in particular, the Constitutional Court has considered that there is no need in the case held oral
the negotiations, as it would have brought more or better and clearer clarification
things than how it met from the written acts of the parties to the proceedings. With
regard to the provisions of section 44 of the Act on the Constitutional Court (in this context,
especially emphasised by the amendment made by law, let there be no 404/2009 Coll.,
effective from 1 January 2005. 1.2013) is already so didn't have to poll participants, whether
agrees with the abandonment of the oral proceedings, in case decided without holding
the oral proceedings.
Your own review
The diction of the contested provisions
12. The provisions of article. (II) section 4 of Act No. 300/2011 Coll., amending
Act No. 202/1990 Coll. on lotteries and other similar games, as amended by
amended, and other related laws, reads as follows:
4. The permit that was issued under section 2 (b). I), (j)) and under section 50
paragraph. 3 the law on lotteries and other similar games, in the version in force
1. January 2012, is the authorization of the municipality to issue generally binding Decree
not apply until 31 December 2006. December 2014; the same applies to the provisions of § 50 para.
5 of the law on lotteries and other similar games, in the version in force from 1 January.
January 2012. The period of validity of the permit restricts the Ministry of finance
so that their validity expired on 31 December. December 2014,
If these lotteries and other similar games are operated in General
a binding Ordinance or contrary to the provisions of § 50 para. 5
the law on lotteries and other similar games, in the version in force from 1 January.
Review of prerequisites
13. A formally correct the petition was filed by a person authorised. To discuss
the proposal is a Constitutional Court and it is also the proposal acceptable.
14. The Constitutional Court was forced to first take into account, if it is in the present
the matter shall be entitled to review (and, where appropriate, cancel) the actual amendments to the law
or part thereof.
15. According to settled case-law of the Constitutional Court is not fundamentally can be
design of novelizujícímu against law, since such an
legislation generally does not have a separate legal existence; gets up to here
as part of the amended legislation; just the revised
legislation should therefore be forwarded to the Constitutional Court to assess the
[cf. e.g. resolutions SP. zn. PL. ÚS 24/2000 of 15 March 2000. 8.2000 (for the
27/19 SbNU 271), also available-as well as all other decisions in the
This finding referred-to http://nalus.usoud.cz].
16. that does not mean that the proposal against the amendment of the law or
part of it (as is the case in the present case) could be Constitutional
the Court subjected to meritornímu examination never [cf. find SP. zn. Pl. ÚS
2/02 of 9 June. 3.2004 (N 35/32 SbNU 331; 278/2004 Sb.)]. One group of
review of permitting exceptions constitute the situations in which it is validated
the constitutionality of the procedure of adoption of the legislation [cf. novelizujícího.
for example. find SP. zn. PL. ÚS 55/10 of 1 March. 3.2011 (N 27/60 SbNU 279;
80/2011 Sb.) or find SP. zn. PL. ÚS 79/06 of 15 July. 2.2007 (N 30/44
SbNU 349; 37/2007 Sb.)]. More an exception then undoubtedly
the situation (which occurred in the present case), in which they are attacked by
transitional provisions novelizujícího legal regulation. Transitional
the provisions of the legislation, namely the novelizujícího arbitrary, there are
just and only as part of, and included in the legislation
do not become revised. In this condition-and taking into account the
the fact that the application of the transitional provisions of the amendment Bill i can hit
to constitutionally guaranteed rights (cf. below)-the Constitutional Court found
brought by a derogatory projednatelným proposal.
17. the possibility of a review of the provisions of the said Constitutional intertemporálních
the Court in the findings, SP. zn. PL. ÚS 21/96 of 4 March. 2. the 1997 (N SbNU 87 13/7;
63/1997.) or PL. TC 33/01 of 12 October. 3.2002 (N 28/25 SbNU 215,
18. On the basis of the following reasons could have landed the Constitutional Court to proceed to the
a review of the contested provisions.
Review of the procedure of adoption of the contested statutory provisions
19. The Constitutional Court, how he stores provisions of § 68 para. 2 of law No.
182/1993 Coll., on the Constitutional Court, as amended by Act No. 48/2002 Coll., first
examined whether the contested provisions (or law of which it is the
the provisions included in the adopted within the limits of the Constitution) provided for the competence and
constitutionally prescribed way. Came out from further cited publicly
available těsnopiseckých messages that capture the parliamentary negotiations and of the
the expression of both houses of Parliament.
20. Bill (eventually publ. under Act No. 300/2011 Coll.) was submitted to the
The Chamber of deputies by the Government of the United States and has been heard as
Assembly print # 138. The Bill was approved by the Chamber of Deputies
at 19. meeting during the 6th legislature on 21 February 2006. June 2011, in
vote no. 287 of the 164 MPs voted for and 18 of 138
21. The Senate Bill was referred to the 28 July. June 2011. The Senate of the day
July 22, 2011 at their 10. the meeting at 8. term adopted
the resolution, which the Chamber of Deputies a draft law in the version adopted by the
the amendments came back. To return the Bill to the vote
# 61 of the 64 senators present rejected the 59 senators and no one was
22. From the těsnopisecké message from 21. the Chamber of Deputies held a meeting day
September 6, 2011 the Constitutional Court found that the Bill was by the
the House approved, as amended by the Senate, and transferred out of 179
MPs in a vote no. 152 members of Parliament voted for 21 and 18
23. On 15 December. September 2011, the law was delivered to the President of the Republic, who shall
27 June 2002. September 2011 to sign up.
24. On 14 June 2004. October 2011 has been promulgated in the amount of 106 of the laws of
under the number 300/Sb.
25. The Constitutional Court notes that Act No. 300/2011 Coll., which is
the contested provision was adopted and issued within the limits of a constitutionally
set out competences and constitutionally prescribed way.
Substantive examination of the contested provisions
26. A key question the substantive compliance with the constitutional provisions of the contested
policy is whether the statutory standard, in conjunction with the procedure
The Ministry of finance temporarily restricts the ability of municipalities to regulate the operation of the
Interactive VLT through generally
binding decrees, unconstitutionally interferes with constitutionally guaranteed
rights of communities of self-government within the meaning of (in particular) the provisions of article. 8, art. 100
paragraph. 1 and article. paragraph 104. 3 of the Constitution.
27. The cited provisions of the constitutional guarantee a Government municipalities
as territorial entities (article 8, in conjunction with article 100, paragraph 1,
The Constitution), taking them at the same time confer powers to regulate questions
falling within the scope of the individual through the issuance of
generally binding decrees (article 104, paragraph 3, of the Constitution). Constitutional guarantees
the rights of communities to self-government forms in the context of the constitutional order of a key
vertical division of power and the folder, some authors are even sorted
among the essential elements of democratic rule of law (cf.
for example. Bahýľová, L., Filip, J., Molek, P., Podhrázký, M., Prince, V.,
Vyhnánek, l., Constitution of the Czech Republic: a comment. Prague: Linde, 2010, str.
28. The definition of the meaning, substance, content and scope of the right of municipalities to
Government with the Constitutional Court in its case-law has already donated many times, and
both in the plane of the General and specifically in relation to constitutional law
the municipality within the limits of its jurisdiction to issue generally binding decrees and
more specifically, the possibility to regulate the operation of the municipality of slot machines
and similar devices within the meaning of the Lotteries Act.
29. Earlier case-law of the Constitutional Court would tell the right of municipalities to
Government (especially in relation to the exercise of their power to issue
generally binding decrees) quite restrictively. Finding SP. zn. Pl. ÚS
45/06 of 11 April. 12.2007 (N 218/47 SbNU 871; 20/2008 Coll.)
explicit re-evaluation of earlier judikatorní practice and the establishment of a new
-from the viewpoint of municipalities much more favourable-access. The Constitutional Court in the
that finding, noted that after the (then) fifteen years of existence
The Constitution, the constitutional guarantee of the right of the containing territorial autonomy is no longer
the contents of the rights of communities to self-government and became part of a broader
legal awareness. In this context, he pointed out, in particular, on the normative
the solution contained in the provisions of section 10 of Act No. 128/2000 Coll., on municipalities
(municipal establishment), as amended, which factually outlined
the areas in which the municipality can issue generally binding decrees and whose
the boundaries of the rich case law and clarify the Constitutional Court.
30. Consequently, the Constitutional Court emphasized [find SP. zn. PL. ÚS 56/10 of
7.9. 2011 (N 151/62 SbNU 315; 293/2011)] that, having regard to the constitutional
guarantees the right to self-government is not possible on the basis of his definition only
from the wording of the Act, as the right of self-government is-regardless of the reservation
the law-and material aspect (or their own constitutional content). Detailed
the law therefore cannot constitutionally guaranteed rights to the content of the territorial
Government purge or de facto eliminated.
31. Part the content of the right to self-government, the Constitutional Court had defined for example. in
finding SP. zn. PL. ÚS 30/06 of 22 March. 5.2007 (N 87/45 SbNU 279;
190/2007 Coll.) under which separate the sphere of competence of the municipality
regulated by generally binding regulations within the meaning of the constitutional order
guaranteed local self-government authorities fall matters that are predominantly
local or regional impact and whose edit is in the interests of the municipality and
of its citizens. For such matters has marked, in particular, assurance
local matters of public order, maintain the cleanliness of streets and other
public areas, environmental protection, green development
and other public green spaces, use of the facilities of the municipality serving the needs of
public, territorial development of the municipality, etc.
32. According to (here in points 4 and 30 cited) hit SP. zn. PL. ÚS 56/10
It is then decided whether and where they can in their territory
present the establishment of lotteries and other similar games (including
Interactive VLT), a matter of local policy and
as such, falls within the scope of the separate municipalities, the regulation of these
matters is constitutionally guaranteed to municipalities. In connection with the given
The Constitutional Court then stated [find SP. zn. PL. ÚS 22/11 of 27 July.
9.2011 (N 170/62 SbNU 489; 328/2011)] that is in the context of the legal
editing regulation of gambling duties of the Finance Ministry to ensure
respect for the constitutionally guaranteed right to self-government.
33. Thus, it follows from the above that included in the law of self-government within the meaning of
the provisions of article. 8, art. 100 paragraph 1. 1 and article. paragraph 104. 3 of the Constitution and within the meaning of
now settled case-law of the Constitutional Court is also an option of municipalities
through the issuance of generally binding decrees regulate the operation of the
Interactive VLT in its territory. To do this,
appropriate to point out that the constitutional dimension of the right to self-government, of course,
You cannot change the ordinary law (cf. the provisions of article 9, paragraph 1, of the Constitution);
as a completely odd, therefore, must be rejected the argument that the
the ability to regulate within its territory the operation of interactive videoloterijních
terminals municipalities entrusted to (given) to the adoption of Act No. 300/Sb.
34. Therefore, if the contested provisions of the municipalities to regulate the traffic option
Interactive VLT even if only temporarily, but after
time not insignificant, excludes (suspended), this is an interference with the
constitutionally guaranteed rights to self-government.
35. The Constitutional Court is aware of the existence of variations of interpretation, according to which
the contested provision does not constitute an obstacle to the interference of permits issued to
the operation of interactive (cf. VLT observations
the Ombudsman), however, the administrative practice of the Ministry of finance
(připomenutá and in the comments of the Ombudsman) shows that this
interpretation in practice by the Ministry of not completely accepted, and
the application of the contested provisions therefore leads to extensive and continuous
the self-government of municipalities. The same evidence and the fact that the proposal on the
annulment of the contested provisions not only the town of Klatovy, but in other
proceedings conducted by the Constitutional Court (under SP. zn. II. TC 2335/12 and III. TC
2336/12) whether or not the town of Frýdlant nad Ostravicí and Židlochovice.
36. In this context, the Constitutional Court stepped up to the assessment of the question whether the
interference with the right of municipalities to the Government invoked the contested legal
the provisions of the souladný with the principle of proportionality; in this context,
focused initially on the question of whether a temporary restriction on the ability of municipalities
regulate the operation of interactive VLT tracks
37. The Test of proportionality, clearly inspired by the case-law of the Federal
the Constitutional Court, the Constitutional Court was formulated already in the award SP. zn.
PL. ÚS 4/94 of 12 April. 10.1994 (N 46/2 57 SbNU; 214/1994 Coll.) as
Cascade review according to three criteria. The first is the criterion of suitability, IE.
answer to the question whether restrictive certain Basic Law Institute
to achieve the objective pursued. The second criterion of measurement
fundamental rights and freedoms is the criterion of necessity, consisting in the
comparison of resource restricting the fundamental right of legislative, respectively.
freedom with other measures that allow you to achieve the same goal, but
nedotýkajícími the fundamental rights and freedoms. The third criterion is then
comparison of the severity of the two standing in a collision of fundamental rights.
38. However, as from this finding, as well as from many other findings [cf..
find SP. zn. IV. TC 1770/07 of 1 July. 11.2007 (N 181/47 SbNU 391) or
SP. zn. PL. ÚS 7/09 dated March 4. 5.2010 (N 102/57 SbNU 315; 226/2010
Coll.), paragraph 34] it can be seen that an obvious prerequisite review criteria
Fitness (the first step of the test) is to answer the question, if the destination
pursued by the normative modification under consideration by the Constitutional Court is legitimate. With
in view of the fact that the very essence of the proportionality test is
the effort to strike a balance between competing constitutional principles, it may
the suitability of the criteria to be taken into account only if the review of the
edit that a constitutionally protected interest (usually a fundamental right)
Suppresses or weakens in the protection of constitutionally protected in another
interest. If they did not follow any adjustment considered normative
appreciable objective rationally (i.e. If it was completely arbitrary) or would
monitor only the goal was illegitimate (which would not be possible to provide
constitutional protection), there would be a limitation of a constitutionally protected interest without
the appropriate counterweights. For this reason, it is therefore in the application of the test
proportionality (more precisely, before its application) necessary to resolve,
If you edit the legitimate aim pursued drew; assessing whether
only the appropriate adjustment to achieve the objective of a non-existent or
illegitimate, would naturally lacked any sense of.
39. in the course of the proceedings on constitutional complaints (see resolutions from 16 June 2003. 1.
2013 SP. zn. IV. TC 2315/12, by which the proceedings on constitutional complaints
broken and which annulment of the contested provisions of the proposal was referred to the
the plenum of the Constitutional Court), the Finance Ministry said that the contested
transitional provisions legitimately addresses intertemporální problem related
with balancing conflicting interests constitutionally protected (i.e., the right to
Self-Government and the protection of property rights and rights to do business) and at the same time
protects the legitimate expectations of the operators of interactive
VLT; in this context, the Ministry of
highlighted the threat of the emergence of disputes (initiated by the operator
Interactive VLT) relating to the protection of the rights of
According to international agreements for the promotion and protection of investments.
40. The Constitutional Court notes, however, that none of the presented the objectives of the
the contested provisions cannot be considered legitimate in the sense of qualification
above described intervention in the rights of communities to self-government. Another legitimate purpose
capable of weighing with constitutional law on self-government of municipalities in nevyjevily
proceedings before the Constitutional Court or chambers of Parliament as parties to the proceedings
Neither the Government proposing the adoption of the standards now. Expressly
other objectives of this intertemporální standards could not find even the Constitutional Court,
which also adds that it is not his duty to which perhaps
Yet other than the Ministry of finance, disclosed the purpose (communicated by the purposes)
the transitional provisions of Act No. 300/2011 Coll. (see here, section 38) there is a
41. in the context of the assessment of the purpose of the contested provisions charged in the first
a number of the Constitutional Court emphasises that the goal cannot be regarded as legitimate
the Ministry said the alleged efforts to solve intertemporálních
the issues associated with balancing conflicting constitutionally protected
interests. The allegation of the existence of the intertemporal problem is necessarily
based on the premise that the municipalities had the option to regulate the operation of interactive
VLT made on their territory as a result of
legislative changes to the Act, which is contested
transitional provision included. However, as is apparent from the above, the opposite
It is true, as the above cited case-law of the Constitutional Court this
constitutional law only to seal; Neither the findings nor the Constitutional Court
in parallel with the amending Act of the legislature implemented them already
the existing constitutional right to self-government.
42. For that reason cannot be for operators of interactive
VLT talk about the existence of the protection of legitimate expectations
(maybe it should be protected by the contested provision) of
hope that their activity will not be, at least for a certain period
regulated by generally binding decrees of municipalities.
Interactive VLT operators-as well as
every other body of law-in fact they could and should be aware of the risk that
their legal sphere may be affected as a result of the adoption, amendment or
repeal of legislation, not just laws, but also secondary
legislation (including the generally binding decrees). Indeed, it follows
even the settled case-law of the Constitutional Court; CF.. for example. find SP. zn. PL.
TC 21/96 of 4 March. 2.1997 [SbNU 13/7 N 87 (96) 63/1997], in which the
The Constitutional Court stated that the abolition of the old and the adoption of new legislation
It is necessarily related to the principles of equality and protection of the citizen
in the right. According to the applicant, then the Constitutional Court notes that, under the
legitimate expectation cannot be regarded as a prerequisite of the operators
Interactive VLT that administrative practice
the Ministry associated with neglect the rights of communities to self-government will be
43. For a legitimate purpose, the contested edits cannot be finally considered or alleged
concerns about the State of the impending Arbitration disputes. The claim that would
interference (or change) issued an authorization to operate interactive
VLT may result in the initiation of the disputes referred to in
international agreements on investment promotion and protection, is not substantiated
and this is a mere speculation. In addition, it should be noted that if the
should be an arbitration initiated pursuant to international agreements on the
investment protection, they could initiate proceedings only foreign
operators, which is, however, having regard to the provisions of § 4 para. 4
the Lotteries Act excluded.
The conclusion of the
44. the Constitutional Court thus concluded that the contested provision interferes with the
constitutionally guaranteed rights to self-government, and the intervention of the
did not follow the legitimate objective. The result of the said-without having to
access to the test of proportionality-the next steps is the finding of a violation of the
the contested provisions with the provisions of article. 8, art. 100 paragraph 1. 1 and article. 104
paragraph. 3 of the Constitution. For these reasons, the Constitutional Court article. (II) section 4 of Act No.
300/2011 Coll., amending Act No. 202/1990 Coll. on lotteries and
other similar games, as amended, and other
related acts, set aside, pursuant to section 70 para. 1 of law No.
182/1993 Coll., on the Constitutional Court, as amended by Act No. 48/2002 Coll.,
on the date of publication of the finding in the collection of laws, as for other destination
enforceability of the award the reasons did not find.
45. The objection of the plaintiff, according to which the unconstitutionality of the contested provisions
result from failure to respect the conclusions of the Constitutional Court finding
The Parliament (and thus a breach of article 89, paragraph 2, of the Constitution), it was not to be when you
the findings of the substantive legal conflict with the constitutional laws adopted
policy in any deal.
The President of the Constitutional Court:
JUDr. Rychetský in r.