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regulations are repealed on the date of 31 December 2003.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.
