In The Matter Of The Application For Revocation Article. (Ii) Section 4 Of Act No. 300/sb.

Original Language Title: ve věci návrhu na zrušení čl. II bodu 4 zákona č. 300/2011 Sb.

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=79874&nr=112~2F2013~20Sb.&ft=txt

112/Sb.



FIND



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,



as follows:



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.



Justification



(I).



The former course of the proceedings before the Constitutional Court



I.)



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.



I. (b))



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.



I (c))



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.



I (d))



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

Express.



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.



II.



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.



III.



Your own review



III. a)



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:



Article. (II)



Transitional provisions



(-)



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.

January 2012.



III. b)



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,

145/2002 Coll.).



18. On the basis of the following reasons could have landed the Constitutional Court to proceed to the

a review of the contested provisions.



III. c)



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

against.



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

against.



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

against.



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.



III. (d))



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.

140-141).



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

legitimate objective.



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

(there are).



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

continue.



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.



IV.



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.