In The Matter Of An Application For Annulment Of Certain Provisions Of The Act. 290/2002 Sb.

Original Language Title: ve věci návrhu na zrušení některých ustanovení zák. 290/2002 Sb.

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=55729&nr=211~2F2003~20Sb.&ft=txt

211/2003 Coll.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 9 April. July 2003 in plenary on the draft group

members of the Chamber of deputies of the Parliament of the United Kingdom for annulment of

the provisions of § 1 (1). 2 (a). (b)), section 2 (2). 2 the second sentence, § 3, section 4, paragraph 4.

2 (a). (b)) § 5 para. 2 the second sentence and article 6 of law no 289/2002 Coll., on

the transition of certain other things, rights and obligations of the Czech Republic

regions and municipalities, civil associations working in the field of physical education and sport

and related changes and amending Act No. 157/2000 Coll., on the transition

some of the things, rights and obligations of the assets of the United States, as amended by

Act No. 10/2001 Coll., and Act No. 20/1966 Coll., on the health care of the people,

as amended,



as follows:



The provisions of § 3 and § 6 of the law no 289/2002 Coll., on the passing of some of the

other things, rights and obligations of the Czech Republic in the regions and municipalities, civil

associations working in the field of physical education and sport and related

changing and amending Act No. 155/2000 Coll., on the passing of some of the things

the rights and obligations of the assets of the United States, as amended by Act No. 10/2001

Coll., and Act No. 20/1966 Coll., on the health care of the people, as amended

regulations are repealed on the date of 31 December 2003.



In the rest of the application is rejected.



Justification



(I).



A group of 45 members of the Chamber of deputies of the Parliament of the Czech Republic

filed the day the Constitutional Court referred to in article 24.2.2003. 87 para. 1 (b). and)

The Constitution of the Czech Republic (hereinafter referred to as "the Constitution") proposal to repeal the provisions of the

§ 1 (1). 2 (a). (b)), section 2 (2). 2 the second sentence, § 3, section 4, paragraph 4. 2 (a).

(b)) § 5 para. 2 the second sentence and article 6 of law no 289/2002 Coll., on the transition

some of the other things, rights and obligations of the Czech Republic in the regions and municipalities,

civil associations working in the field of physical education and sport and the

related changes and amending Act No. 155/2000 Coll., on the transition

some of the things, rights and obligations of the assets of the United States, as amended by

Act No. 10/2001 Coll., and Act No. 20/1966 Coll., on the health care of the people,

as amended, (hereinafter referred to as the "Act" or "Act No 291/2002

SB. ").



After a recap of the various provisions of the contested act, the appellants

in support of its proposal, argue that the statutory provisions unilaterally,

without the ability of regions and municipalities concerned to express its relevantly

matched or contradicting the will determine that these authorities

passes from the State of the selected things, rights and commitments not yet belonging to the State

at the same time determine the defined organizational components of the State and

the State contributory organizations become the organizational units or

contributory organisation of the relevant authorities. The appellants

the law that does not address such fundamental issues as the question of payment of the

obligations of the State incurred to 31.12.2002, which pass on the date of 1 January 2003

on the county or municipality. The question is not dealt with settlement of the liabilities of the State

organizations that make up the 1 January 2003 became a contributory

Organization of regions and municipalities; in case of cancellation of such contribution

organisations would not have moved on the obligations of the founder, after 1 January 2003, therefore, on the edge of

or a municipality (§ 27 (3) of law no 250/2000 Coll., on the budget

the rules of the local budgets). This law draftsmen

impermissibly burdens the financial position of territorial self-governing units (hereinafter

also referred to as "TSU"), which are separate legal entities, different

from the State, and against which it can intervene only for reasons of State protection

the law. The County had to reimburse such undertakings will be forced to take advantage of the

own financial means, and so the situation occurs, when the autonomous

units are out of funds intended for government activities

pay State commitments or liabilities incurred by the organizations in the

a time when the State was their founder. The undesirable result

It may be the fact that the self-governing activity of TERRITORIAL SELF-GOVERNING UNITS will be issued

for significantly less money than they were originally intended, and it would be released in

If the State of its obligations or the obligations of its contribution

organisations on the TSU did not endorse. In this connection, the appellants

They point out that the main part of the acquired property-real estate-cannot

After a period of 10 years, be used for any purpose other than for which it was

used on the date of 1 January 2003. According to them, the situation cannot be solved on the basis of

the legal opinion is backed by some of the representatives of the State, namely

the view that the State is liable for the obligations of the former State contribution

organizations that have arisen to 31 December 2002. It is a question of whether, in the

the case of conversion of these organisations on the contributory organization of regions or

municipalities to 1.1.2003 nezaniklo that date of the guarantee of the State, that existed

pursuant to section 74 of the Act No. 218/2000 Coll. on budgetary rules and amending

certain related acts (budgetary rules). However, even if

such liability of the State after that date, there were, he would not have this solved

the problem of unlawful debt units local self-government authorities. If

the State as a guarantor State, responsibility for the liabilities of the former contribution

the Organization was founded by State-with regard to the legal consequences of liability-

claim against budget organisation of the county or municipality, or directly

against the county or municipality, and the relative financial independence of these

authorities in the State, in particular the Executive, would be in your

content basically negated, as it would depend on the will of the State to apply

your claim against them or not. Such status is based on

plaintiffs in breach of the constitutional concept of self-government, as

the Constitution provides in article. 99, art. 100 paragraph 1. 1 and article. 8. The appellants

They point out that part of the law of TERRITORIAL SELF-GOVERNING UNITS of self-government is also entitled to reasonable

financial security for the activities carried out by those entities in the public

the interest that the legislature Act entrusts to them. This conception of the right to

Government also corresponds to the provisions of article. 3 (2). 1 of the European Charter of local

authorities (hereinafter "Charter"), which indicates for the local government

not only the right, but also the ability of local communities within the limits of the

the law on responsibility and in the interests of the local population to edit and

to manage a substantial part of public affairs. One of the prerequisites

ability to realize its self-governing TERRITORIAL SELF-GOVERNING UNITS activity is also their

adequate financial security. Naturally things Act,

How will organise a system of taxes, fees and other revenue of the State and

TSU, however, as a result, this system must guarantee the long-term financial

stability referred to public bodies. Otherwise, it would be

the relative autonomy of these units has become an empty concept.



As the appellants further argue, transition, the rights and obligations of the State in the

the county or municipality of the law would be in line with the Constitution, if the

accompanied by such a system of financial security tasks associated with the

the previous property, which would ensure the long term financial

the balance of regions and municipalities even after following completion of the transition. The legislature, however,

in particular the region transforms in hospitals and other health

equipment for the most part such organizational folders or contributory

organizations that are burdened with large debts. The loans not only for

the current system of financing of health care cannot be new

the licensee paid in the foreseeable future, but on the contrary can expect their

steady increase, to the extent that can seriously undermine the financial

the stability of the region. The proof that the system of financing health care

not currently financially self-sufficient, as well as to the fact that a number of

hospitals, which are transferred to the region, has long been deeply in debt, have suggested

appellants evidence to report to the Ministry of Government or

health and the opinion of the Association of regions of the Czech Republic.

The appellants also point out that the contested legislation occurs

not only an undue interference with the autonomy of local authorities, but

There is a risk the deterioration in the position of the creditors of these commitments, go to

contractual relations with the State or with State contributory organization with

knowing that their debtor is directly or indirectly to the State, and as a result

adoption of the law, however, the borrower becomes another economic entity.

Also point out that Act No. 172/1991 Coll., on the passing of some of the

things out of the assets of the Czech Republic to the ownership of municipalities, which dealt with the

a comparable problem-the material base of the newly established municipalities-declare

What sort of things out of the assets of the State are transferred to the municipality, without, however, these municipalities

in the meantime, incurred over stressing the obligations of the State or government organizations.



Finally, with reference to the article. 11 (1) 1 of the Charter of fundamental rights and

freedoms ("the Charter"), having regard to what has already been transferred to the

assets, the appellants, it was stated that the right of counties as owners

assets free to decide about your ownership is significantly

put in context, and on the basis of the decision of the State purged. According to their

opinion, it is also a question of whether the contested provisions do not infringe the constitutional

the principle of equality of ownership and ownership of freedom, forcing other

people owning something, when there was actually a law to effect the commandments

ownership-law commanded the edges of the ownership of certain things and


the position of the debtor in certain private-law contractual relations,

which would surely be against other persons do. The FRO

the appellants are a serious violation of the principle that the right of ownership of all

owners has the same content and enjoy the same protection. In addition to this

violation of then goes and the severe limitation of freedom of ownership, respectively.

the constitutional postulátu that ownership is seen as a right, not as a

the obligation, the obligation of ownership may subsequently

arise. An obligation to hold well enough, and the County cannot be saved as

a person governed by private law lost permission to decide whether certain

things will take. For these reasons, the appellants are therefore considered that there

violation of the right to self-government, guaranteed by article. 8 and 10(1). 100 paragraph 1. 1

The Constitution, violation of the right to property, guaranteed by article. 11 (1) 1

Of the Charter, as well as a breach of the principles on the basis of which it was adopted

The European Charter of local self-government, and proposed to the Constitutional Court

the top marked with provision of law findings set aside.



The Constitutional Court has requested in accordance with § 69 para. 1 Act No. 182/1993 Coll., on the

The Constitutional Court, as amended, the expression of both Chambers

Parliament of the Czech Republic.



The Chamber of deputies of the Parliament of the United Kingdom in its observations,

signed by its President, after a recap of the content of the proposal and

each of the contested provisions States that law no 289/2002 Sb.

prepared in the implementation of the second phase of the reform of public administration and

resulted from the need to deal with the assets of the State, which ran

organizational units of the State and the State of the Organization of a regional nature, for

which performed by a zřizovatelskou function and the district offices.

This is not a delegation of State administration to the TSU, but a change

the owner and the related change in the legal position of the mentioned

State institutions. The law is the law of transformation of a one-time

the character with the purpose of equipping the TSU other asset files that should

used to provide services to the citizens of the regions and municipalities. Assets in accordance with the

This Act went to the individual counties and municipalities on the day

1 January 2003, and it can therefore be concluded that the law has already been consumed.



The appellants ' argument that the law was violated the rights of self-government,

forced to the will and there was an undue financial burden on counties and municipalities,

expression refers to the findings of the Constitutional Court, SP. zn. PL. ÚS 1/96

[declared under no. 294/1996 Coll.; published in the collection of the findings and resolutions of the

The Constitutional Court (hereinafter referred to as "the decision"), volume 6, finding no 120]

and SP. zn. PL. ÚS 34/02 (promulgated under no. 53/2003 Coll.; will be made public in the

European Court reports, volume 29, finding no. 18) and the reasons listed there.



Of the provisions of the Constitution and the Charter can be inferred that legal restrictions for

the action of local and regional authorities are admissible and can be quite strict and

binding, if there are important reasons. Such a law, and the law

No 291/2002 Coll., and under this rationale can be assigned even challenged

the provisions of § 3 and § 6 of the law, when the State took advantage of the permission given to him when

the applicable provisions of section 19 of Act No. 129/2000 Coll., on regions (the regional

establishment), and if applicable the provisions of section 40 of Act No. 128/2000 Coll., on the

municipalities (municipal establishment), and to set the conditions for the management of free of charge

acquired immovable property and determine the retention for the purpose

the property served. Similar edit protecting the purpose of the present

use of immovable property was used already in the Act No 137/1991 Coll.,

which varied and complementary law No. 403/1990 Coll. on mitigation

some property-related injustices, as amended by law No. 458/1990 Coll.



For these reasons, the House of Commons concludes that the contested provisions

they cannot be in contradiction with the Constitution, the rule of law, nor by the Charter of local

self-government. In conclusion, the representation is then expressed the opinion that the

the legislature acted when discussing this law in conformity with the

the legal procedure and in the belief that the law is adopted in accordance with the

the constitutional order and laws of the United States.



Senate of the Parliament of the Czech Republic in its statement, signed by its

Chairman, recalls that the draft Bill, the Senate returned the Chamber of Deputies

with amendments, the Chamber of Deputies, however, the Bill was approved by the

the date of 13.6.2002, as amended by the Senate transferred. In the general debate.

There was the transition of a property which had, together with the institutions

go to the village, was not discussed with the competent local authorities, and those in their

the essence of the transition do not match. It was further noted that the transition

libraries in the village location on the edge of the village concerned will impose high costs,

that they get to experience financial problems, which could lead to

unwanted abolition of libraries. The idea that the library should go rather

the region, which is then reflected in one of the amendments. In General

the debate also featured criticism of non-system procedure during the transition

medical facilities and emergency services for the County, however, the plenary

The Senate is to consider that in a situation where it is necessary to count on

the abolition of the district offices, a better solution is to adopt the necessary technical

the proposed changes to the law before editing the gradient of health facilities from

the draft completely ruled out.



Moreover, in its observations on the objection of plaintiffs, that already in the past switched

assets from the State to localities, without burdening their commitments the State municipalities,

States that it is common ground that Act No. 172/1991 only dealt with the transition

ownership of the things from the State to localities, but eg. on the basis of § 68 of the Act

No. 367/1990 Coll., on municipalities (municipal establishment), as well as all the rights and

obligations of the local national committees and national committees of the State

the villages were the effective date of this Act, these national

committees established. A similar process was also in the district national committees

some of the cities. Furthermore, according to section 67 para. 1 of the Act function

the founder and the power to establish, manage and cancel or modify the Organization, that

carry out local and national committees, the city passed to the municipality in which the

the organization is located. Universal transfer of rights and obligations

organisations and facilities in the event of public administration reform is a standard

the procedure, which ensures a certain degree of legal certainty as well as the substantive

continuity. Without the option of a universal transfer of rights and obligations and

transfer of the ownership of the things of the law would not have been any reform

public administration possible. It is true that not all assets

national committees has been based on the rules in force at that time municipalities "commanded by"

by law. Pursuant to section 67 para. 2 Act 367/1990 Coll., the municipality could ask the State

on the delegation of functions and powers of the founder to establish, to cancel or modify and control

the Organization and equipment of the district national committees and regional national

of the committees. If requested, these organizations have been converted as units

including commitments. This procedure was given the former system of State

the Administration, since they were set up at the district offices, which could

seamlessly and with substantive knowledge of the local situation, assets of the former

national committees to take over and run with it. In the assessment of the

the problem is the need to take into account that the completion of the second stage of the reform of the public

Administration cancellation meant the district offices, and the State does not currently

the time available to an organizational structure that could with the knowledge

local conditions effectively, not from the Center, manage assets

a State that does not have a regional importance. State for the approval of the concept

transition property on the regions and municipalities was undoubtedly kept the idea to equip

regions and municipalities an essential property that is required for the performance of their

scope, whether delegated or separate. The provisions of § 3 and § 6

the contested Law was to them in the first place because of the State after the transition

assets had ensured the use of property for public benefit purposes, i.e.

in particular in the areas of activities where State, regions or municipalities is stored

the obligation to provide any of its powers. On the other hand, it is

on the Constitutional Court to consider whether the restrictions applied in these

the provisions are "still" comply with the constitutional order of the Czech

States, in particular with the provisions of article 8(1). 1 and 4, of the Charter. In this context,

the statement reflects on the consequences of the eventual repeal of certain

provisions, and in this regard stresses that the contested act is a law of

transformation and that the proposed provisions to cancel has already been filled.

The commitments that the regions and municipalities on the basis of the contested provisions,

the "naked" part of the Act by repealing the Constitutional Court will not switch automatically

without further to the State. The Constitutional Court referred to in article. 87 para. 1 (b). and) of the Constitution

decide on the repeal of laws or their individual provisions if they are

in conflict with the constitutional order, and thus creates a space for the new adjustment with

the constitutional order Conformal. If the State after any cancellation

the provisions in question does not take the above obligations on the basis of the Treaty

or other fact or TSU beats differently, can only be

to speculate about how these units chooses to domohly

satisfaction. There is no doubt that the State has an obligation to provide the TSU

certain financial resources, in order to carry out both the scope of the


the State transferred to them, as well as a separate application. As already noted

The Constitutional Court in the grounds of the award No 53/2003 Coll., legal provisions on

the contributions of the performance by the State are stark, however, can be

is still interpreted as constitutionally and internationally Conformal manner. The amount of the

contribution to the performance by the TSU sets namely Executive,

It may, in particular as to the amount of the contributions, to move only within

the law on the State budget. In addition, Act No. 242/2000 Coll., on the

financial destination of the proceeds of certain taxes to the territorial entities and

some State funds (law on budgetary determine taxes), as amended by

amended, guarantees to these authorities the proportion of income that

the State gets the choice of certain taxes, and this guarantees to a large extent

stability of the financial status of municipalities and regions. The whole issue needs to be

viewed comprehensively, since the amount of funds which may happen to spend

the activities of territorial self-governing units, is limited to the economic

performance and the economic situation of the State, or the State budget.

Public budgets should be seen to some extent as the United system.

State may expend funds not subject to the requirements of TERRITORIAL SELF-GOVERNING UNITS, but according to the

options, according to the amount of their income. From this point of view can be rather

agree that the problem is primarily economic,

a political, not a legal problem.



In accordance with the provisions of § 49 paragraph 1. 1 Act No. 182/1993 Coll. was

It also requested the opinion of the Ministry of health and the Association of counties

Of the Czech Republic.



In the representation of the Ministry of health, it is stated that the adoption of the

the contested act was completed the second phase of reform of the public administration

related to the termination of the activities of the district offices and their transfer

the scope of the TSU. In the framework of the implementation of the procedure of this reform was necessary to

deal also state that each of the organizational units

State and Government of the Organization of a regional nature, for which the district

the authorities carry out the founding or zřizovatelské function. This was not

a delegation of State administration to the TSU, but about changing the owner and with

This change in legal status referred to related State institutions.

Resolution of the Government No. 765 of 25.7.2001 was approved for this purpose

The timetable for the preparation of the second phase of the legislative security reform

the public administration and the Ministry of finance in cooperation with the competent

Resorts has been saved to prepare a draft law on the transition of property to the State and

on the transfer of functions from the zřizovatelských district offices to the allowance

organizations and organizing folders of the State. On the day of 1.7.2002 so acquired

the effectiveness of the contested Law, on the basis of the date of 1 January 2003 has become

the State contributory organization, which feature the founder engaged to

date district offices, příspěvkovými organizations. These

the organization remain carriers of all obligations existing on the date decisive

and remain carriers of the rights and obligations of employment relations. On

each region on the same day she went all rights and other property

the values of the State with which these organizations have been the decisive day

the farm. By changing the governing body not to interrupt the

the activities of the organizations, as they did not crumble, but changed

only their legal status from State to non-State. Therefore, do not arise

or their successors in title and the Organization continues to operate under a different

the founder with the same ID in the contracting and labour unchanged

relationships.



The Ministry of health according to the provisions of § 10 of the Act No. 2/1969 Coll.,

on the establishment of ministries and other central bodies of the State administration of the Czech

Socialist Republic, as amended, and in accordance with the law

No. 20/1966 Coll., on the health care of the people, as amended,

mainly the provision of health care in accordance with the

needs of society and sets out the main directions of the development of the health sector.

The Ministry of health is not and was not in accordance with the applicable legislation,

[Act No. 218/2000 SB., as amended; the Act No. 320/2001

Coll., on financial control in the public administration and on amendments to certain laws

(Act on financial control), as amended; Act No.

147/2000 Coll., on district offices, as amended by Act No. 320/2001 Coll.]

authorised to tackle financing or otherwise interfere

in the management of medical equipment in the case that is not their

the founder. The management of State-owned health care facilities as a

contributory organizations govern the applicable law in General, which

by the end of 2002 affect devices in the scope of the district

authorities. Entry into force of Act No. 218/2000 SB. district offices and were

they owned and controlled entities included in the relevant budget chapter

-380 in the scope of the Ministry of finance. In this regard, the Ministry of

health care in the notes that it cannot be held responsible for

individual concrete economic results of health facilities in

the scope of the other founders.



From on-demand representation of the Association of regions of the United States of 22.5.2003

It can be seen that the Association agrees with the opinion of the proposal and confirmed

the fact that the debts of the medical facilities for the existing system

health care financing in the region cannot be recovered any time soon.

On the financial recovery of those debts would have to use the County financial

the resources intended for the financing of other legally stored them

obligations in the field of for example. education, transport, culture, life

environment, Social Affairs, etc. Nevyřešení long-underrated

the situation in the area of health can seriously compromise any time soon

the financial stability of the regions or the availability of healthcare.



Whereas, in its proposal, that the appellants issue liabilities

accentuate, in particular in the context of healthcare in transition

devices, the Constitutional Court also requested "the Government's message about the status of

indebtedness of State hospitals, about how to resolve these debts and legal

transfer of hospitals in the region "of 5.12.2002, which the Government

5.12.2002, discussed and took note of it in the Chamber of Deputies on

its 8. a meeting on 10.12.2002. In this report, after the initial finding of the

the change, which brings the law no 289/2002 Coll., mj. States that "the question of the

the position of the medical device should be settled by Act No. 219/2000

Coll. on the assets of the United States and its representation in legal relations,

which did not occur. Long was discussed in the wake of the financial

the ailment on the future legal status of hospitals medical

equipment, in particular about whether medical devices are devices

by State or non-State. In the end, she was elected a variant called.

preservation organizations, and health care

the device until the special legislation, thereby limiting

any zřizovatelských positions. Inpatient medical debt

the device, whose founder is the District Office, it is not an issue that should

rose up to the moment of transfer to the region. Some hospitals are in the aggregate, in the

a certain level of debt moving throughout the existence of the system

reimbursement from health insurance resources. At each stage there was

to try to resolve this condition, for example. in 1995, a partial change

the real way of health insurance companies to cover transition

laid down by flat rate, which was designed for a specific reference

period in 1997, while several large loans

hospitals and individual health insurance bodies, most recently in

1997. across-the-Board debt relief. With a two-year separation is realized

specific comprehensive program that responded to the oldest liabilities

due date medical facilities that meet established

criteria. The source of this program was to partially limit the investment

the development proposed in the budget for the year. In the General

conviction and certainty that fails to significantly increase the resources of the GDP for

health care, have been repeatedly during the past period presented

proposals for changes to the way health care financing larger or smaller

the range. Most of them have not been implemented ". Furthermore, in this report,

that "the State budget for the year 2002 and the draft budget for the year 2003

does not have the resources for settlement balances of the individual being transferred

hospitals. It is therefore necessary to proceed in accordance with the law No. 290/2002

Coll., which specifies the schedule for these transfers, with the result that there are significant

difference in the status of the management of individual health care facilities,

where the former is irreplaceable founder who had

immediate influence on management, and thus the management of hospitals ". Message

notes that the value of the transferred assets far exceeds the existing

the degree of indebtedness, to 30.9.2002 amounted to claim any of these devices

approximately 3.1 billion dollars, commitments, then 3.8 billion. The value of the

fixed assets represents a volume roughly equal to 42.2 billion

Crowns, which are transferred to the region. A specific solution to the problems of debt


burdensome transitioning healthcare facilities report lacks. From

its annexes then what is perceptible in the text stated, namely, that

There are significant differences in the status of the management of the individual

health care facilities. Reflected in the situation in individual regions

commitments are hospitals (after deduction of claims) the following: Main

the city of Prague-6 875 0000 Czk, Stredocesky kraj-213 013 0000 CZK

Region of South Bohemia-60 001 0000 Czk, Plzeňský kraj-47 579 0000 CZK

Karlovy Vary region-87 100 0000 Czk, Ústí nad Labem region-131 186 0000 CZK

Liberec Region-13 741 0000 Czk, Královehradecký kraj 151 312 0000 CZK

Pardubice region-100 951 0000 Czk, Vysočina region-88 708 0000 CZK

South Moravian region-66 852 0000 Czk, Olomouc region-0, Zlín region 146

909 000 CZK, Moravian-Silesian region 154 600 0000 CZK.



II.



The Constitutional Court in proceedings for the annulment of laws and other legal regulations

It assesses the contents of the Act in accordance with the criteria contained in the provisions of § 68 para.

2 Act No. 182/1993 Coll., as amended, that is, in terms of

its compliance with constitutional law. Before he went up to his own

meritornímu review of the draft, reviewed also in line with its

obligations arising out of the cited provision (in fine), have been complied with

formal conditions of acceptance of the law, and the contested Law was adopted within the limits of

The Constitution laid down the competence and constitutionally prescribed way.



In this direction from the těsnopisecké report on 43. and 47. the meeting of the

the Chamber of Deputies, 3. the electoral period, found that the Chamber of Deputies Act No.

290/2002 Coll., approved after due consideration at its 47. meeting held

27.3.2002 (resolution No. 2208), when present 159 members of them,

for proposal voted 85 and 69 against. From the těsnopisecké news from 17. meeting

The Chamber, 3. the term of Office, it was further established that on 14.5.2002

(resolution No. 384) for the proposal, as amended by this Chamber of Parliament

amendments of the present 64 senators voted 55,

against the proposal were the 2 senators. On the proposal by the Senate (as returned by the

amendments) then the Chamber of Deputies voted on its 51.

a meeting on 13.6.2002, from 188 members present voted in favor, 91

for, and 80 were against. This vote, so as not to adopt

in his proposal, the Senate modified form. In a subsequent vote on the proposal,

in accordance with article 6(1). paragraph 47. 3 of the Constitution, this time in the version in which it was

referred to the Senate for the present proposal (resolution No. 2317) have expressed their

for the same number of legislators present 108 for, and 65 were against. He was then

law no 289/2002 Coll., signed by the competent constitutional factors and properly

published in collection of laws, 106 amount that was sent out the day

28.6.2002. The Act came into force on 1.7.2002.



Based on these findings, it is possible to conclude that law no 289/2002

Coll. has been duly adopted and published within the limits of the Constitution laid down the competence and

constitutionally prescribed manner (section 68, paragraph 2, of Act No. 182/1993 Coll., on

last amended), with the result that the proposal is capable of right in rem

consultation within the meaning of the assessment of its conformity with the constitutional requirements, respectively.

the constitutional order [article 83 and article 87, paragraph 1 (a)) of the Constitution].



(For completeness must be added that law no 289/2002 Coll. was amended

Law No. 150/2003 Coll., which came into force the date of 23.5.2003, this

the amendment is, however, not one of a group of MPs of the contested design

the provisions touch).



III.



The project under the law no 290/2002 Coll., is by law the transformational nature of that

was adopted in the context of the implementation of the II. public administration reform phase. On

the basis of the wording of paragraph 1 (1). 1 were transferred on 1 January 2000. January 2003 to ownership of the

The Czech Republic into the ownership of the lands of things to 31. December

2002 were competent to manage organizational units of the State and the State

contribution of the Organization for which the function of the founder engaged to

the last time that day, the district authorities. These departments and the State

subsidized organizations are at the same time on 1 January 2002. January 2003 have become legally

departments and organizations of the respective counties příspěvkovými

(article 2, paragraphs 1 and 2 of law no 289/2002 Coll.). On 1 January 2004. January 2003 were transferred to the

among other things, the County and State commitments, which set out the organizational

units of the State on the date of 31st December 2002, ensure the tasks under Act No.

219/2000 Coll. (on property of the Czech Republic and its representation in legal

relations), and subsidized organizations of counties by law

transformed from State contributory organizations remained ex lege

holders of obligations, including the rights and obligations arising from employment relations,

the carriers have been designated by that date the former State

contributory Organization [section 1, paragraph 2 (b)), section 2 (2). 2 of law No.

290/2002.]. A similar transition occurred also in relation to municipalities [§ 4

paragraph. 2 (a). (b)) § 5 para. 1 and 2 of law no 289/2002.].



According to the plaintiffs, these provisions are experiencing undue intervention

the constitutional law on the territorial Government, violates the constitutionally guaranteed

relations between the State and TERRITORIAL SELF-GOVERNING UNITS, unacceptably interfere with private

the position of third parties, and also violate the right to property,

guaranteed by the Charter. The primary reason that the appellant has led to

submission of the proposal to specifically mention-is that, as a result of the law

are transferred to the regions, municipalities and their contributory organization without further

the obligations of the State, yet when pertaining to State as follows while avoiding resolves

their debt and their organisations, in particular in the area of health care.



The Constitutional Court first assessed the provisions of § 1 (1). 2 (a). (b)), section 2

paragraph. 2 the second sentence of § 4, paragraph 4. 2 (a). (b)) and § 5 para. 2 the second sentence of

the law.



Already in its previous decision-making practice gave the Constitutional Court found that the

Local Government considers indispensable component of democracy and

repeatedly found that the local government is an expression of the rights and

the ability of local authorities, within the limits of the law, in the context of its

responsibility and in the interests of the local population to regulate and control part

Public Affairs [findings SP. zn. PL. ÚS 1/96 (see above), SP. zn.

PL. ÚS 17/98 (promulgated under no. 28/1999 Coll.; published in the collection of

the decision, Volume 13, no. 6)].



To the legal representation of the public administration reform, related to its

decentralization and deconcentration, United with the konstituováním regions,

an extension of the exercise of State power by the regions and municipalities and

the abolition of the district authorities, then the Constitutional Court expressed in finding SP. zn.

PL. ÚS 34/02, which was rejected a proposal from a group of Senators of the Parliament of the Czech

States to abolish sections 2, 5, 6, 7, 8, 9 and 11 of article. Act CXVII.

320/2002 Coll., amending and repealing certain acts in connection with the

the termination of the activities of the district offices. In the preamble of this finding of the constitutional

the Court found that the constitutional guarantee of the territorial Government under the Constitution, is

the laconic. The Constitution establishes the legal status of TERRITORIAL SELF-GOVERNING UNITS and is counting on the fact that

self-regulatory bodies have their own property and operate according to their own

budget (article 101, paragraph 3, of the Constitution). Counts also explicitly with a share of TSU

the exercise of State authority on the basis of legal authorization (article 105 of the Constitution).

The latter judgment also pointed out that the Czech constitutional standard

local and regional authorities is supplemented and enriched with standard, which results from the

the international commitments of the Czech Republic, namely the Charter of local

Self-Government, agreed that 15.10.1985 came into force for the Czech

Republic 1.9.1999 publications in the Czech Republic under no. 181/1999 Sb.

by law, the Charter of the territorial self-government zaručovaná Contracting Parties are

the framework. Also, the Charter itself in a number of its provisions, provides for the detailed

national law and does not guarantee full freedom of territorial

self-government. Laws, respectively. other regulations, according to the choice and traditions

the Contracting Parties may, therefore, to define in more detail the content of the matters

the territorial Government-managed, including those municipalities has a

obligation to monitor, its organization, and also to determine the framework for

management, allocate the property and its financial resources, however, if

as to the financial resources provided for in article. 9. 1 of the Charter, that the local

the community within the framework of the economic policy of the State of the right to adequate

own financial resources with which they can within their respective powers freely

to dispose of, and these should be proportionate to the liability provided for by the Constitution and

by law (article 9, paragraph 2, of the Charter). Already in that finding the Constitutional Court

noted that the framework for financing of TERRITORIAL SELF-GOVERNING UNITS (as well as the definition of their

Task) may not result in the conservation of economy to their financial

collapse. (He also said that the sight of an authoritative reallocation and operations

delimitovaných workers, namely district offices within the regions

in charge of cities and towns in the light of the Charter and the Constitution must, therefore, from odviset

How to finance the exercise by the State, with the conclusion that

insufficient financing of the exercise of State power by the

threatens the very existence of the territorial self-government functions.) These considerations

can the argumentačního basis, with regard to the assessed

material, similarly to establish even now the case.



By default the proposition on which the concept of self-government is the basis for

the free State of the free municipality, then from the perspective of meaning


regional higher territorial self-governing hierarchy

the community of citizens, which is based on the Constitution of the region. When this concept

public administration built from below must be self-government, as a significant

element of the democratic rule of law, the immanent postulate according to which the TSU

You must have the real possibility of matters and issues of local importance, and even

those for their nature extend beyond the regional framework and for which decides

in its separate scope, addressed on the basis of their free

discretion, when it is implemented in the form of representative democracy will

represented at local and regional level and the responsibility to

voters and on the basis of the legal and constitutional framework in your particular

speech at length limited (article 101, paragraph 4, of the Constitution). Local Government

units representing the territorial community citizens must have-

through autonomous decision-making of their representative bodies-

free to decide how to dispose of the financial

the means by which they are to carry out the tasks of self-government. Just

management of their property separately for its own account and a private

responsibility is an attribute of self-government. A prerequisite for the fulfillment of

the effective performance of the functions of the territorial Government is therefore the existence of

custom and sufficient financial or proprietary sources.



The scope of the issues discussed below under consideration is the need to be aware

in particular, the status of those organisations, which are part of the nepominutelné

health care facilities. For those prevail-as is apparent from the observations and

Association of regions of the Czech Republic-significant debts in the

individual cases and in the order of tens or hundreds of millions of Crowns, which

eligible budget of the local government unit significantly

affect, in particular, where there is so loaded with debt

health care facilities in the greater number of TERRITORIAL SELF-GOVERNING UNITS. Act No.

250/2000 Coll. on budgetary rules of territorial budgets, as

amended, specifies rules for financial management

resources, whose income in the future is the TSU other laws provided by the

-in particular by Act No. 242/2000 Coll., on the budgetary revenue determination

certain taxes to the territorial entities and certain State funds

(the law on budgetary determine taxes), as amended-to

However, it does not change the fact that in the very beginning of the activities of these bodies

These bodies are loaded with the load, which had been initiated activities

State or its organization, and it is so obvious that this fact may significantly

way affect the autonomous activity and to prevent land use

municipalities spend funds earmarked for their own

Government activities so as to serve the purpose of the EIB (article 101

paragraph. 3 of the Constitution). However, the merits of the step where the State within the framework of the reform of the

public administration transferred to the TSU, however, call into question certain assets cannot be,

as this is determined by the reasons, which are based on historically confirmed

belief, on the basis of which mainly just those concerned with the Affairs of the

associated with it apply and to which the assets in their functions

immediately, they are able to and from the nature of things and willing and

motivated to manage it with due diligence, and it

often better than centrally organised state power, and much more

a full way. The decentralisation of tasks and associated conversion

the property is also not something constitutionally unacceptable. Join this step with

then transfer or further commitments associated with this property

However, another solution, following a system of taxes, subsidies

and similar benefits. The State would in fact not-without any further-stripping

liability for debts incurred during his management of the transferred

the property and that are the result of the previous loss of realization

of property rights, and, where non-compliance with the legislation of the

[the provisions of § 53 et seq. of Act No. 218/2000 Coll., on the budget

rules and amending certain related laws (budget

rules)]. Certainly should do so not in relation to such bodies,

through which should be carried out its tasks of

provision of basic rights deriving from article. 31 of the Charter, the guarantor of the

which he is. Such conduct the sovereign no longer evokes

Reflections on the abused State power at the expense of TERRITORIAL SELF-GOVERNING UNITS. Although it is a very

a different situation is in a given context and a voucher to the horizontal

the plane in the private law of the expressed and generally fair premise, according to

for the debts of the slow-moving things-even if not of the transfer-

essentially corresponds to the alienator (article 500, paragraph 2, of the Civil Code), even from

the perspective of the argument, and minori ad maius.



With the view of the Chamber, that the problem of the deficit of the previous management, need to be

addressed comprehensively, it is possible to agree, if he does not, however, continue

inertia in the debt of the property, must be from the State

aim to eliminate this unwanted condition. His other duration

would no longer be eligible to put both the performance of the functions of self-government, as well as

the position of creditors whose rights security in legal State should

be a matter of course.



The intervention of the Constitutional Court of the cancellation of the above

However, this provision should not removed the unwanted State. Pursuant to § 71 para. 4

Act No. 182/1993 Coll., which regulates the legal effects of the breach of the findings

The Constitutional Court (and which is the Constitutional Court within the meaning of the provisions of article 88

paragraph. 2 of the Constitution bound) remain the rights and obligations of the legal relation,

incurred prior to the cancellation of the legislation intact. The Constitutional Court therefore

He had to take into account that, as already pointed out above, the contested law is

the law of transformation, a one-time nature. The legal consequences under consideration

the legal provisions and this Act anticipated arose ex

lege already to 1 January 2003, and the ability to invoke these standards in the future

legal consequences is fully exhausted. Complying with the constitutional

the Court, having effect ex nunc, would no longer had the ability to on the

State and having regard to the provisions of § 71 paragraph quoted. 4 of law No.

182/1993 Coll., nothing changed. Because of this, so the Constitutional Court

had the appellants ' in this part of the proposal should be rejected.



IV.



Somewhat different, however, in accordance with the Constitutional Court, in assessing the situation

the provisions of § 3 and § 6 of the law no 289/2002 Coll., which is the new owner of the

(town, country) in relation to the immovable things restricted in their use,

for a period of 10 years from the date of their acquisition, only for the purpose for which the

the changeover date to have been taken with the fact that if they become before the expiry of this

time for the municipality (region) according to local assumptions and practices for this

the purpose of the unnecessary and that (he) is not made to the social, educational, or

medical purposes, must be offered on free transfer to

the ownership of the State.



As is evident from the construction of this legislation, as well as from the explanatory memorandum

report on the draft law no 289/2002 Coll., the restriction aims to

the need to maintain a minimum target to reflect on for a certain period of use

authorities acquired immovable property for the purposes of which the date

the transition served, or allow their use only for the purpose of serving

the others exhaustively listed to the public interest.



This disclaimer is to be regarded, according to the belief of the Constitutional Court

(excluding the following outlets) as well as in the context of the previously referred to the conclusions and

also from the perspective of article. 11 (1) 3 of the Charter, under which ownership committed to

and must not be misused to the detriment of the rights of others, or in violation of the law

protected public interests.



Restriction of ownership rights, in this case provided by law, with the

an accurate, specifically defined and specific determination of the purpose of this restriction

in the aforementioned public interest does not show when it is determining the elements

arbitrariness and taking account of the arguments on which it relies, does not populate the characters

unconstitutionality (as opposed to the State in the matter of SP. zn. PL. ÚS 1/02, finding

published under no. 404/2002 Coll. and published in the ECR,

Volume 27, finding no. 104). Thus the conclusion is to be understood in

the context of the ongoing transformations carried out in the framework of the reform

the public administration. In this process, can be attributed to the public interest

the capacity to be generally acceptable, reasonably ospravedlnitelným

the reason for this restriction of ownership rights of territorial self-governing units.



From the decisional practice of the Constitutional Court, it follows that the limitation of fundamental rights

and freedoms may occur in the event of a collision with other constitutionally protected

value, which does not have the nature of a fundamental right or freedom, even in the case of

urgent public interest. The restrictions under consideration must be assessed from the

the perspective of the principle of proportionality-findings of the Constitutional Court in matters of sp.

Zn. PL. ÚS 4/94 (promulgated under no. 214/1994 Coll.; published in the collection of

the decision, volume 2, finding no. 46), SP. zn. PL. ÚS 15/96 (promulgated under the

No 280/1996 Coll.; published in the ECR, volume 6, finding no.

99), SP. zn. PL. ÚS 24/97 (declared under no. 159/1998 Coll.; published in

European Court reports, Volume 11, finding no. 53), SP. zn. PL-16/98

(promulgated under no. 68/1999 Coll.; published in the ECR, volume


13, finding no 25), SP. zn. PL. ÚS 3/02 (promulgated under no. 405/2002 Sb.;

published in the ECR, Volume 27, finding no. 105) of which find

SP. zn. PL. ÚS 15/96 is also dealt with the limitation of property ústavností

the rights of self-government, with the conclusions in that the award received

You can bind even now the case.



Thus it must be said that the restrictions of ownership enables you to

to achieve the objective pursued, which is to respect the legitimate public

interest in the existence of social, educational and health care facilities

(the criterion of suitability or eligibility fulfill the purpose principle).

The criterion of necessity as the other components of the principle of proportionality

then it follows from the need for continuous preservation (after

specific period of time) the existence of these devices, even taking into account the

a fundamental right enshrined in article. 31 of the Charter. Also, when assessing the

the severity of both the protected values are then given restriction does not appear

disproportionate in the light of the content and generally acceptable and shared

the hierarchy of values is not possible in given contexts reject absolutely.

Its limitation in time should, however, be determined only a relatively

short transient time section, which should be to obtain the

the necessary knowledge allowing responsibly with the acquired assets deal

in a manner of their own free discretion of the owner, i.e. of the competent

TERRITORIAL SELF-GOVERNING UNITS. Its period of limited damage on the Basic Law of the zaručovaném

article. 11 (1) 1 of the Charter, however, seems manifestly disproportionate in relation to the

to the intended destination, as this law no longer limits so much that its

negative consequences for its from the perspective of the time highly constructed

"temporariness"-exceeds the positives, which represent the public

interest. It is not so clearly from the perspective of the principle of proportionality in

the contested provisions filled in with the proportionality test in the strict sense.

In relation to the constitutional requirement of the investigation, the nature and the meaning of omezovaného

of property rights (article 4, paragraph 4, of the Charter) is in the present case from the

the underlying ownership of the triad (ius possidendi, the ius utendi et ius fruendi,

IUS disponendi) without prejudice to the right to enjoy property and to dispose of it in the

the meaning of its disposal, for a period of ten years, when referring to the above

listed cannot be adopted, to the time aspect, for

corresponding to the principle of proportionality, and that therefore the hallmarks

unconstitutionality. The legal framework of § 3 and § 6 of the law no 289/2002 Coll., in this

the direction clearly stray from the limits and perspectives of the admissibility of the intervention in

of ownership, since the ten-year period of this restriction in the

context, taking account of all aspects of the issues under consideration,

This does not seem adequate.



In relation to the contested (temporary) restriction of property rights is not

possible, on the one hand, therefore, disregard of its clearly defined, specific,

equal and therefore constitutionally acceptable conditions (article 11, paragraph 1, of the Charter,

article. 1 (1). 1 of the Constitution), the Constitutional Court, however, on the other hand, believes

about the fact that with the requirement arising from article. 4 (4). 4 of the Charter may

correspond to only such legislation that this restriction was based

only in very necessary time range, which can be understood as merely

the minimum time, and clearly the prima facie "transitional" period.



The Constitutional Court thus concluded that the restriction of ownership rights in

the provisions of § 3 and § 6 of the law no 289/2002 Coll. does not satisfy in respect of all

principle of proportionality required constraint components

the basic law, and therefore the following provisions for their conflict with the article. 4

paragraph. 4 in conjunction with article. 11 (1) 1 of the Charter has cancelled (section 70 (1) of the Act

No. 182/1993 Coll., as amended). The enforceability of the award in

This section, however, postponed to 31 December 2003, so that the Parliament of the Czech

States should have sufficient space for the establishment of a new period.



The President of the Constitutional Court:



JUDr. Haboob in r.