The Proposal To Repeal The Provisions Of § 19 Paragraph. 1 The Act On Regions

Original Language Title: návrh na zrušení ustanovení § 19 odst. 1 zákona o krajích

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=53832&nr=404~2F2002~20Sb.&ft=txt

404/2002 Sb.



FIND



The Constitutional Court



On behalf of the Czech Republic



The Constitutional Court ruled June 13. August 2002 in plenary on the proposal of the High Court

in Prague to repeal the provisions of § 19 paragraph. 1 Act No. 129/2000 Coll., on the

counties (County establishment),



as follows:



The provisions of § 19 paragraph. 1 Act No. 129/2000 Coll., on the regions (regional

the establishment of a), shall be repealed on the date of publication of this finding in the collection of laws.



Justification



Day 2. in January 2002, the Constitutional Court delivered a draft of the Senate 5 and the high

a court in Prague, which the applicant with reference to the article. paragraph 95. 2 of the Constitution

The Czech Republic (hereinafter referred to as "the Constitution") seeks the annulment of the provisions of section 19 of the

paragraph. 1 Act No. 129/2000 Coll., on the regions (regional establishment),

expressed by the words "the State has the right to respect of the transfer or gradient

chattels, rights and real estate on the region and on financial participation

the acquisition of such assets of the region's establishment of conditions for

other management and the management of this property. ".



The appellant stated that under the SP. zn. 5 and 73/01 of the administrative procedures of the

the application of the Pilsen region ("kraj") the Ministry against the defendant

education, youth and sports ("the Ministry"). Referred to

the present action seeks the annulment of the Pilsen region the administrative act issued in accordance with

the provisions of § 1 (1). 1 and 2 of law No 157/2000 Coll., on the transition of certain

things, rights and obligations of the property of the Czech Republic into the assets of regions, which

the Ministry has transferred into the scope of the Pilsen region things, rights and

the obligations with which runs pre-school establishments, schools and education

equipment specified in annex A1 to that decision, including the following

preschools, schools and educational institutions, and with effect from the

April 1, 2001. This decision at the same time they were transferred to the ownership of the

The Pilsen region real property referred to in Annex B, part I and part

B/1 and B/1 b thereof and movables listed in Annex B of part

And (B) of the decision. Plzeň region in the application, in particular, argued that the Ministry of

with reference to section 19 of the Act on regions in that decision laid down the

the four conditions for further management and disposal of the immovable to be migrated.

the property, which it as owner of the limit and which it considers illegal.

The conditions laid down by the Ministry are so broad and restrictive that

exceed the capabilities of the Ministry of law, as in the rights

as the owner of the County so that paralyze performance proprietary full

rights. At the same time it is challenged and the Constitution guaranteed the right to

Self-Government of higher territorial self-governing region as a whole.

The Ministry, in its answer to the lawsuit argued that the conditions laid down

based on the provisions of section 19 of the Act on regions and that the Ministry of

altering the law or exceed its framework. Recognises that the conditions are

restrictive, but the State has responsibility for creating appropriate conditions

for the fulfilment of the constitutional right to an education, and change in use of property

intended to training could cause serious problems.



The High Court in Prague took into account the resolutions of the Constitutional Court of 21 June.

8.2001, SP. zn. II. the TC 326/01, which was rejected as inadmissible

the complaint of the Pilsen region, since the complainant has not exhausted all as

remedies which act to protect the rights granted or filed

the constitutional complaint of a situation, when at the same time, the applicant seeks the review

the decision of the Ministry of the procedure under section 244 et seq.. Act No. 99/1963

Coll., the civil procedure code, as amended, (hereinafter referred to as "about.

with the line "). When discussing administrative actions in the case reached the High Court

considers that the provisions of section 19, paragraph. 1 the Act on regions in conflict with

the constitutional order of the Czech Republic, if it provides that "the State has the right to

in respect of the transfer or gradient of movables and real estate, rights on the

region and in the funding of the acquisition of such assets of the region

check out the determination of conditions for further management and handling

This property "without the law at the same time to determine the substantive content of this

the permission of the State, i.e.,. the scope and method of determining the conditions governing the

the State (public authority) is bound. Therefore, the proceedings on the merits pursuant to § 109 paragraph. 1

(a). (c)) of the s. l. said, and the matter to the Constitutional Court with a proposal on the

cancellation provisions.



The applicant, with reference to the article. 2 (2). 3, article. 8 article. 99. paragraph 101. 3

and (4) of the Constitution and article. 2 (2). 2 of the Charter of fundamental rights and freedoms (hereinafter referred to as

"The Charter") argues that the region of the managed assets

separately and on their own account management and their own responsibility is

attribute of self-government. The Government can therefore state intervention,

only if required by the protection of the law, and only in the manner prescribed by law.

The law of the regions lays down the obligations of the County management with him and

the way to control management in the provisions of § 17 et seq..

Moreover, compared with the provisions on the control of management, law

the provisions of section 19 of the Act the law of the State reserve in the

in respect of the transfer or gradient of movables and real estate, rights on the

region and in the funding of the acquisition of such assets of the region

the conditions for further management and handling. The appellant concedes

the interest of the State to ensure the education and the need for substantive and financial

ensure the abovementioned interest and also the possibility that the State intervened in the

Self-Government of municipalities and regions and committed obligations is pointing to

ensuring the right to education. It must, however, determine the cases, limits and

the ways of this intervention. The provisions of section 19 of the Act on regions determined by

navrhovatelova only considers cases where the State may reserve the

the determination of the terms and conditions, unless, of course, limits or ways for such

the determination. The State may undertake any of the conditions of the region and their

Moreover, failure to penalize. The applicant considers this status for

inconsistent with the constitutional order, in particular, with article. 2 (2). 3 of the Constitution, according to the

which State power serves all citizens and can apply only in

cases, the limits and the methods which are prescribed by law, and with the article. paragraph 101. 4

The Constitution, under which the State may interfere with the activity of the territorial

authorities only if required by the protection of the law, and in a manner

laid down by law.



Further, with reference to the appellant referred to the decision of the Constitutional Court sp.

Zn. II. the TC 326/01 stated that he belongs in the matter of legality

action, the contested decision within the defined action, i.e., whether the

conditions no. 2-4 [2. the need for prior written consent

the Ministry to change the purpose of the use of real estate or their parts or

part of the outside the framework of the first conditions for their sale, the inning, the donation,

the transfer to another person's property or a lien, or load.

loan or lease of real estate or their parts or components on time

more than one year; 3. the obligation of the State, i.e. the donation back. When

the impossibility of use of the immovable property according to the terms of no. 1 and the denial of consent to

a change of their use or for sale, donation or shift, the deposit to the

the assets of the other person's obligation to submit to the Ministry of the County within 90 days from the

refusal of consent, the draft Treaty on the donation of such property to the

State ownership; 4. not giving consent to the loan or lease according to

conditions no. 2 the obligation to submit to the County within 90 days after the refusal of consent

the draft Treaty confirmed the region as půjčovatelem of loan of such

real estate in favor of the Ministry or other designated person, by him] are

established in accordance with the law. With regard to the wording of § 19 paragraph referred. 1

the Act on regions concluded the appellant concluded that the statutory provisions,

According to which the Court could specifically set out the conditions for the legality of the

decide, is missing. For a given situation does not have the Administrative Office of any legal

the definition for the determination of the conditions, and does not violate the law by logically

It lays down the conditions, except in terms of absurd,

beyond the logic of things, etc. Thus understood the absolute freedom of

the administrative authority is under the navrhovatelova opinion in conflict with the Constitution.

However, should the applicant as a judicial body stepped up for the State

the absence of legal limits and the way of setting the conditions for the review

the legality of the decision, assessed her only in relation to the General

the provisions of the Act, the purpose and meaning of the establishment of the regions and the reasons for the transfer or

the transition of the State assets to the public corporation and the interpretation of the

tried to replace what the legislature into law explicitly nevtělil and the

the power of the Executive, asserted himself would in this case, the role of which he

It does not belong, namely, the role of the legislature, and thus violated the principle of separation and

to be able to.



The applicant finally submits that the current treatment, which allows any

the setting completely different conditions for waste to be migrated.

property or in connection with the transition of the property or financial participation

the acquisition of such assets, it is not only in conflict with the "predictability

the decision ", but above all in violation of the principle of equality. With regard to the

article. paragraph 100. 1 and article. paragraph 101. 3 and 4 of the Constitution, legislation must not

to create the possibility of inconsistent, unlimited State interference or

arbitrariness in determining conditions, but must be given the statutory framework of the limits and

how such interventions, which will be valid for all instances of the same
kind of the same, shall ensure the same terms for the management of the said

property for all counties and all counties, with regard to limitation of their

the activities of the State, they will be equal.



The Constitutional Court under section 69, paragraph. 1 of law No. 182/1993 Coll., on the constitutional

the Court, in the wording of later regulations, requests from the Chamber of Deputies and

Senate of the Parliament of the Czech Republic as participants representation to the proposal.



The President of the Chamber of deputies of the Parliament of the Czech Republic (hereinafter also

"Chamber of Deputies"), Václav Klaus, the draft stated that the legislature

He acted in the belief that the law is adopted in accordance with the Constitution, the constitutional

policy and law. Also refer to the explanatory memorandum to the Government

the draft law on regions, according to which the law lays down the conditions under which

the property can be obtained with the participation of the State to dispose of. The scope of the

The Ministry of finance to carry out and control the treatment resources

the State provided by the regions on the performance of State administration. Navrhovatelův interpretation of the

considered to be special. The applicant shall state in the area to tasks

ensuring education or to the fact that the State must take care of the physical and

financial security law on education. It is therefore authorized by law

intervene in the sphere of decision-making authorities of municipalities and regions. The State is also

obliged to take account of the specific conditions and needs of the individual

counties. The original Government proposal tied to the acquisition of the property in the previous

the consent of the State. The version adopted by the Chamber of Deputies gives regions a guarantee,

that, in fulfilling the conditions for the approval of the State are no more

the management and disposal of assets is not required. Notes at the same time,

the proposal to repeal section 19, paragraph. 1 of the law of the regions should be considered as

unfounded and, therefore, that the provisions of section 19, paragraph. 2 and 3 are on it

explicitly bound and in practice would be ineffective. Considers that the legal status of the

with the abolition of that provision would be improved. In conclusion, adding that the law

of the regions has been approved, signed by the competent constitutional factors and properly

declared.



The President of the Senate of the Parliament of the Czech Republic (hereinafter the "Board"), Peter

Pithart in its opinion described the progress of the approval of the Act on regions

on the soil of the Senate. The content of the proposal then said that the provisions of section 19, paragraph. 1

the Act on regions was to act in the first place, to the State in respect of the

transfer or gradient property to ensure that the use of property for "publicly

beneficial purposes, i.e. ". in particular, where there State imposes an obligation to

to provide one of its scope. The State in the implementation of these

its permissions should, however, ensure that the constraint has not been applied in

contrary to the article. 1 and 4, of the Charter, i.e. that it was investigated the nature and meaning of

ownership and restrictions has not been abused for purposes other than

for which it was established. He reminded that the licensee of

a unilateral act which the purchaser cannot affect his will. In conclusion, the

the President of the Senate, from the application to the High Court in

Prague, Pilsen region, shows that handed the proposal to abolish the "entire"

decision. In the case of the abolition of the State takes ownership again to

the assets referred to in the decision and cannot be ruled out that

contribution of the Organization of the County have become as a result of section 2 (2). 1 of law No.

157/2000 Coll., as amended, the Government again

příspěvkovými organisations with all the consequences that this entails.



The Constitutional Court as soon as possible in accordance with section 68, paragraph. 2 Act No. 182/1993 Coll.,

in the wording of later regulations, examined whether the Act for which the applicant

argues the unconstitutionality of its provisions, was accepted and published in the limits of the

The Constitution laid down the competence and the constitutionally prescribed way. From

representation of the Chamber of Deputies and the Senate, as well as of the sent

the relevant Council publications and further information on the progress of the constitutional vote

the Court found that the Chamber of Deputies approved the draft law on regions

on their 22. the meeting of 8 June. in March 2000, when for him from the present 183

MPs and MEPs spoke and 118 against them was 59. The Senate approved

the draft law on its 18. the meeting on 12 June 2006. April 2000. Of the 73

senátorek and senators voted 45 and 22 against. The law on the

regions signed on 4 July 2003. in May 2000, the President of the Czech Republic. Law

was declared on 15. in May 2000, in the amount of the collection of laws under no 38.

129/2000 Coll., the Act on regions was adopted and issued a constitutionally prescribed

in the manner and within the limits of the Constitution laid down the competence in compliance with the rules

laid down in article 4(1). paragraph 39. 1 and 2 of the Constitution.



The applicant seeks the annulment of the provisions of the proposal for the examination of the § 19 paragraph. 1

the Act on regions. According to the provisions of the State has the right to

in respect of the transfer or gradient of movables and real estate, rights on the

region and in the funding of the acquisition of such assets of the region

check out the determination of conditions for further management and handling

This property.



When making a decision pursuant to article. paragraph 87. 1 (a). and the Constitutional Court) of the Constitution

checks-the kind-whether the challenged provisions in accordance with the

the constitutional order (so their cancellation is not necessary), or whether this

the provisions are constitutionally Conformal. The proposal to repeal the law, another

the law or their individual provisions, however factually

deals only, provided that the law, other legal regulations or their

do not lose the validity of individual provisions before the end of the proceedings before the

The Constitutional Court. If this occurs and the law, other legal

prescription or their individual provisions, the constitutional validity of the affidavit

the Court, in accordance with section 67, paragraph. 1 of the law on the Constitutional Court to stop the proceedings.



The Constitutional Court verified that the law of the regions has been repeatedly amended.

For the proposal under consideration is essential, in particular, the amendment made by Act

No 231/2002 Coll., This amendment was, inter alia, abolished the whole of section 19 (point

30. The cancellation of the first paragraph) § 19 is seeking an applicant received

the proposal. This Act has been duly approved by the Chamber of Deputies the day 26.

March 2002. The Senate Bill is not. 17 May. May 2002 was the

the law received the President of the Czech Republic and 23 July. may

2002. In the collection of laws was promulgated in the amount sent out 87 day

June 4, 2002 with the provisions that take effect 1. January 2003

the exception of 26 points and 79, which, however, the contested provisions do not apply.



In this situation, the Constitutional Court was forced to ask the question, whether in the

things to decide, or whether it comes in the account of the procedure under section 67, paragraph. 1

Act No. 182/1993 Coll., thus stopping the proceedings, i.e., whether the provisions of the

the Act, whose cancellation is proposed, expired before the end of

proceedings before the Constitutional Court.



The reason for inadmissibility in proceedings for the control of design standards, respectively

to stop such a procedure is in accordance with the applicable arrangements of the absence of validity of

to cancel the proposed legislation, not the lack of

efficiency. From this point of view should be seen on the contested provisions § 19

paragraph. 1 Act No. 129/2000 Coll. as the provisions, which is to date

decisions of the Constitutional Court are valid and effective, and to which the grant is to be

1. January 2003. The design of the High Court is therefore to be regarded as

permissible, rather, that the finding of 10 June. January 2001, SP. zn.

PL. ÚS 33/2000 (promulgated under no. 78/2001 Coll. and published in the collection of

the findings and resolutions of the Constitutional Court, volume 21, finding no. 5) expressed

The Constitutional Court is of the opinion that if the Court shall submit to the procedure laid down in article 4(1). paragraph 95. 2

The Constitution and the law for the assessment no longer valid, is adequate voicing opinion

on the constitutionality of such a law.



One of the basic attributes of self-government is the right of self-governing units

independently manage his assets, and on its own account and own

the responsibility. Table of contents ownership form the owner permissions thing

keep, use it, enjoy its fruits and benefits, as well as the permissions with the things

to dispose of. While the ability to dispose of the goods is considered to be the core. How

However, results from a specific case, during the consideration of the Chief

the court interrupted the proceedings in Prague and submit the provisions of § 19 paragraph. 1 of the law

of the regions to assess the Constitutional Court, on the basis of this provision, the

in some cases, or some ministries unilaterally this

the right to nabývanému of property restricted in such a way, that makes

self-governing regions rather than fiduciary owner. Is

přisvědčit must be the claimant, that State, where the State feels entitled to be

commit the autonomous region by any conditions, which

In addition, with hard-hitting sanctions fines is contrary to article. paragraph 101. 4

The Constitution, pursuant to which the State may interfere with the activity of the territorial

authorities only if required by the protection of the law, and only

in the manner prescribed by law. The contested texts of the force and effect of section 19, paragraph.

1 of the law on regions, however, there are no statutory definition for the determination

the terms of the management of the acquired assets and thus the absolute based

freedom, or rather the possibility of arbitrariness of the authorities of the State in their determination.

Such a State, in the same cases may not proceed

as well, the possible future decisions of the authorities of the State is unpredictable, and in

its consequences can seriously violate the equality of self-governing
bodies to which the asset is transferred or which passes. The procedure of the State

in this case is fundamentally different from the procedure for the transfer of assets

municipalities that have acquired the assets of transition directly from Act No. 172/1991 Coll.,

on the transition of some of the things from the ownership of assets of the Czech Republic

municipalities, as amended, the law has provided for the

management of municipalities with the property thus obtained no other conditions or

nepodmiňoval this transition any decision of the central authorities of the State

management with the possibility of reservation conditions.



In addition to these reservations raises valid and effective wording of § 19 paragraph. 1

the Act on regions and doubts in terms of legal theory and a common legal

terminology, when under the same regime as the transfer of assets, ranks and

his transition. To move assets on the basis of legal fact

in this case, the Act No 157/2000 Coll., as amended,

or independently of the will of the body. In such a case, the conditions

the handling of such property to establish the law, and not only the administrative

the Office. This law, however, any of the conditions associated with this transition

does not provide. Modifies only the formal requirements of future administrative

the decision and the only provision which ex lege to some extent limits the

future owners, can be considered only by the provisions of section 4, according to which the

where there was or will be pursued restitution claim, becoming a region

liable person under special legislation. On the other hand, to transfer

of ownership occurs in this bilateral agreement and the Act can be

no doubt negotiate other terms. On this fudge then follow

(I) the provisions of § 19 paragraph. 2 and 3 of the Act on regions, which sankcionují

violation of the obligations imposed under paragraph 1, without distinction, although

such a penalty would be felt in the account only for breach of obligations or

the conditions laid down in the transition of ownership of ex lege, while hard to

such sanctions can succeed, if the closed region as a public

Corporation with the State of the Treaty on the transfer of assets. In this case, you can

the penalties only to negotiate the Treaty.



These problems may have been aware of the Government, which in the draft

amendments to the law of the regions proposed by the other text of § 19, which, however,

Finally, the legislature was not accepted, and this section was in the

final version of the law launched (with effect from 1 January 2003). From

the General section of the explanatory memorandum, however, shows that the purpose of the amendment to the law on the

(no 231/2002 Coll.) is, inter alia, to extend the scope of the regions, which

It is necessary to ensure that the region can fully meet their mission, which

to them under the Constitution as an important authorities of the territorial Government. If

the legislature by law no 231/2002 Coll., the whole of section 19 of the Act on the lands set aside,

This can be considered in the circumstances for the manifestation of his knowledge, that

the provisions of section 19 do not comply with the requirements of its constitutional structure

resulting from the article. paragraph 101. 4 of the Constitution, and that his obecností and uncertainty

meet the characters of predictability, sufficient precision and clarity,

which is characterized by the concept of "law" in the legal State. By § 19

has referred to the characters, apparently did not allow the addressees (regions)

adequate protection against arbitrariness and discretion of State power. The contested

the provisions so allow, that the new owners were in their rights

resulting from the article. 11 of the Charter limited in a way that does not spare the meaning and

the nature of these rights, and is therefore in breach of article. 4 (4). 4 of the Charter.

Listed status would not be in accordance neither with the European Charter of local

Government, which has been in the legal order of the Czech Republic incorporated

communication from the Ministry of Foreign Affairs No. 181/1999 with effect from

September 1, 1999. According to the article. 8 of the European Charter of local self-government can be

any administrative supervision of the self-governing communities exercise only

so, as determined by the Constitution or the law.



Of all of the above reasons, the Constitutional Court upheld the High Court's proposal in

Prague and the provisions of § 19 paragraph. 1 of the law on lands set aside the day of its publication in the

This award is in the collection of laws.



The Constitutional Court considered the follow-up and the repeal of paragraphs 2 and 3 of section 19 of the Act on

regions, aware of the fact that in the award of 31 July. October 2001, SP. zn. PL.

ÚS 15/01, published under no. 424/2001 Coll. and published in the collection of

the findings and resolutions of the Constitutional Court, volume 24, finding no. 164, delivered

opinion that such a procedure would allow for even without the proposal. In this award

The Constitutional Court said that, in a situation where as a result of the cancellation of a

statutory provisions the other provisions from the repealed its content depends on

losing reasonable sense, IE. losing the merits of its normative

the existence of, and the reason is given for the repeal of this provision, without

It was about how ultra petitum. Due to the fact that this actually

technical amendment has been referred to the derogation of the regions, which

takes effect 1. in January 2003, the Constitutional Court in this case

only on the cancellation of a key provision that expressly was challenged by,

Thus, § 19 paragraph. 1 the Act on regions.



The President of the Constitutional Court:



in the z.. Haboob in r.



Vice-Chairman of the