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the establishment of a), shall be repealed on the date of publication of this finding in the collection of laws.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