69/2009 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court ruled on 16. December 2008 in the plenary in the composition of František

Duchoň, Vlasta Formankova, Turgut Güttler, Pavel Holländer, Ivana Janů,

Vladimir Crust, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým,

Pavel Rychetský (reporter judge), Miloslav Výborný, Elisabeth Wagner

and Michael April on the proposal for a group of MPs of the House

Parliament of the Czech Republic, for which this is Petr Rafaj, on

the cancellation of the Decree of the Ministry of the environment no. 352/2005 Coll. on

details of the disposal of electronic equipment and electronic waste management and

detailed conditions for the financing of the waste management (Decree on the management of

electrical and electronic equipment), with the participation of the Ministry of the

environment, such as a party, and a group of Senators of the Senate

The United States as a secondary party to the proceedings,



as follows:



The proposal is rejected.



Justification



(I).



Recap of the proposal and the arguments of the applicant



1. The Constitutional Court has received a proposal from a group of 27 members of the Chamber of Deputies

Parliament of the Czech Republic (hereinafter the "appellant"), which requires

the cancellation of the Decree of the Ministry of the environment no. 352/2005 Coll. on

details of the disposal of electronic equipment and electronic waste management and

detailed conditions for the financing of the waste management (Decree on the management of

electrical and electronic equipment). The appellant, according to the article. 87 para.

1 (b). (b)) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") and § 64 para. 2

(a). b) Act No. 182/1993 Coll., on the Constitutional Court, as amended

regulations, seeks the annulment of the decree for its non-compliance with the constitutional

policy and Act No. 185/2001 Coll., on waste, as amended

Regulations ("the law on waste").



2. the applicant submits that the Act No. 7/2005 Coll., amending Act No.

185/2001 Coll., on waste, as amended, was in the Czech

the rule of law transposed Directive of the European Parliament and of the Council

The European Union no 2002/96/EC, relating to the enforcement of community

environmental policy in the field of electrical and electronic waste

(hereinafter referred to as "the directive"). This amendment in part four of the law on

the waste piece the eighth, in which imposed obligations in connection with the

isolated collection, by collecting, processing, using and removing the

electrical and electronic waste not only manufacturers of electrical and

electronic equipment, but also to distributors, resellers, and the last

processors of Eee, which has become a waste. Appellant

notes that according to section 37 h of paragraph 1. 1 of the law on waste, the manufacturer can these

the obligation to perform alone or jointly with others, or through other

legal entities to ensure the common implementation of the obligations of the producers. The manufacturer of the

electrical and electronic equipment, which is subject to the obligations referred to in part four of

the eighth piece of the law on waste, is obliged to submit an application for entry into the

list of manufacturers of electrical and electronic equipment, which must contain the information set out section

37i para. 3 of the same Act.



3. significant by the appellant is that the obligations of the financing

waste electronic equipment originating from households vary according to the

the date of placing on the market of electrical equipment. If the electrical equipment is placed on the

market after the date 13. in August 2005, is the manufacturer of the electrical equipment required to

finance the collection, processing, utilisation and deletion

electrical and electronic equipment produced by households (§ 37n, paragraph 1, of the law on

waste). If the electrical equipment was put on the market to day 13. August

2005, in order to ensure the take-back, treatment, recovery and

removal of electrical and electronic equipment produced by households, which was

backward taken under § 37k and § 38 of the law on waste, manufacturers shall

to create a system in which, in particular on an adequate scale by

of market share, all persons who are actively

active in the time when the relevant costs, and this system is not

specified in the Act.



4. The contested Decree distinguishes the management of electronic equipment

(coming from households) placed on the market after a day of 13. August 2005 and

prior to that date. In the former case, the manufacturer has the option to choose between

the three systems (sub 2), i.e.. and when an individual) under section 12 of the

the Decree shall establish the fenced bank account and stores on this account

funds or enters into an insurance contract; b) solidarity, which

run by two or more manufacturers, or c) collective, which is

operated by a person different from the manufacturer. For the historic WEEE section

in article 13(3). 1 of the Decree provides that for each group of electrical and electronic equipment

provides a common implementation of financing the management of historical

electronic equipment a collective system.



5. According to the applicant the Decree clearly goes beyond the mandate,

that she was the law on waste is given by the fact that he commands use

only a single system ensuring the financing of the management of historical

electronic equipment. The Environment Ministry has under § 37n

paragraph. 5 of the Act on waste, establish, after consultation with the Ministry of

finance an implementing regulation further financing conditions,

in particular, the method for calculating the minimum amount of stored funds

the ring-fenced the bank account and the minimum amount of indemnity.

By Ordinance violates articles. paragraph 79. 3 of the Constitution, according to which the

the Ministry on the basis of and within the limits of the law to issue legislation

If they are to be empowered by law to do so. The provisions of section 13 of the Ordinance at the same time

violates articles. 2 (2). 4 of the Constitution and article. 4 (4). 1 and 2 of the Charter of fundamental

rights and freedoms ("the Charter"), as it imposes obligations which

does not arise from the law and that restrict the exercise of fundamental rights and freedoms.



6. In addition, the Decree imposes obligations, contrary to the article. 26 paragraph 2. 1

Of the Charter, according to which everyone has the right to do business or engage in other

economic activity. The Decree creates a monopoly in the field of the common

fulfillment of obligations for financing the management of historical

electronic equipment. This prevents the pluralism engaged subjects in the field of

disposal of electrical and electronic equipment, significantly interferes with their freedom

a business in the area, or the business

makes it impossible. The appellant in support of its claims, put his opinion

The Office for protection of competition, from which in his opinion

It appears that as a result of such legislation, moreover, there was a significant

violation of the rules of competition in the market for services dealing with

electronic waste management, but also by electronic equipment. The limitations of those

fundamental rights of self-employed persons is not economically necessary, as

shown by the situation in the Slovak Republic, where it is possible, in addition to

themselves were more collective systems that manage the funding

the management of historical electrical equipment. The introduction of the second

the operator would lead even to reduce the fees, which are manufacturers of

required to pay into this system.



7. In conclusion, the applicant notes that his complaints are directed primarily

against section 13 of the Decree No. 352/2005 Coll., however, believes that the individual

the provisions of the Ordinance are so interdependent that the effective remedy might

only be achieved by repealing the entire Ordinance. For these reasons requires

that Decree was abolished.



8. in the course of the proceedings, the Constitutional Court received a text and the stylization of the almost

identical to the proposal made by the Group of 18 Senators of the Senate of the Czech

of the Republic. The Constitutional Court concluded that both proposals are substantively

are the same, and on the proposal submitted by a group of Senators decided

by order of 14 June. December 2006, SP. zn. PL. ÚS 49/06 (in the collection of

the findings and resolutions of the Constitutional Court published, available at

http://nalus.usoud.cz so that was rejected as inadmissible pursuant to § 43

paragraph. 2 (a). (b)) in conjunction with § 43 para. 1 (b). (e)) of the Constitutional

the Court. A group of senators (hereinafter referred to as "the intervener") as an authorized

the appellant has therefore in the present proceedings, the position of the intervener

According to § 35 para. 2 of the Act on the Constitutional Court. With regard to the identity of the two

proposals are given only the arguments of the appellant.



II.



Observations of the parties and the interveners and the conduct of the proceedings



9. The Constitutional Court asked for the representation of a party, i.e.. The Ministry of

the environment, which stated that satisfactory fulfillment of characters or

one of the complaints of conflicts with constitutional law or another law, and

proposes rejection of the application. This participant stated that the Decree was

released on the basis of the mandate contained in the law on waste,

legislative process in accordance with legislative rules of the Government and was

published in collection of laws.



10. a participant stated that the proposal from the attacks solely to section 13 of the Ordinance, which

modifies more financing conditions dealing with electronic equipment

originating in households listed on the market to day 13. August 2005

(historic WEEE). In § 37n para. 5 of the law on waste is

Ministry of the environment, shall be entitled to lay down after consultation with the

Ministry of Finance of the implementing regulation further conditions


the financing, in particular, the method for calculating the minimum amount of stored financial

resources on the ring-fenced the bank account and the minimum amount of

insurance benefits. "More financing conditions" is the Ministry of

the environment required to provide for all methods of financing

waste electrical equipment coming from households under § 37n

paragraph. 1 to 4 of the law on waste. Two examples of near-terms and conditions

the empowering provisions in that funding is in his opinion

only demonstrative.



11. the party further pointed out § 37n para. 3 of the law on waste, which

provides that, to ensure the management of historical electrical equipment are

manufacturers shall create a system. As to the transposition of article 5(2). 8 point 3 of Directive

2002/96/EC, which lays down the obligation for Member States to ensure

the financing of the management of historical electrical equipment "one or more of the

systems to which all producers shall contribute in proportion to

the market, in proportion to their share of the market by type of equipment ".

The cited provisions of the directive does not give you the option to choose a different kind of

funding for example. the way of the market, or is it the manufacturer not to migrate.

Czech Republic the obligation to establish a system in section 13

the implementing decrees, so that for each group of electrical and electronic equipment provides

joint financing of the management of historical electrical equipment one

the collective system. The Decree further in § 2 (b). g) specifies who

means the collective system operator, in § 13 para. 2 States

obligation to evacuate the contribution in the manner prescribed by the operator

the collective system and in section 2 (a). j) specifies what is meant by

contribution. According the law placed limits for section 13 of the Ordinance,

It must provide more funding conditions for dealing with the historical

electrical equipment, respecting the legal obligations of manufacturers

to create a system in which they will contribute, on an adequate scale.

The decree by the participant shall respect those limits by laying down as a

further condition that the financing for each group of electrical and electronic equipment

will be registered a collective system that has the obligation to ensure

the financing of all historical electrical equipment for the

the Group of. This is how the law is respected, so article. 8 point 3 of the directive, which

expressly provides that the financing was provided by one or

more systems.



12. According to section 13 of the Decree does not mandate the use of only one

the collective system, but gives producers in the context of § 5 para. 7 and § 15

paragraph. 3 and 4 of the Decree, in order to ensure the possibility of funding created

one or more systems that apply for entry on the list. Collective

system that meets the formal criteria and in which the Association

the manufacturer with the largest share of the market for the group, electrical equipment,

will be written to the list and will be required to ensure the financing of the

the handling of all historical electrical equipment in that group.

In theory, so could be written up to nine operators of collective

systems. A participant considered the chosen solution for reasonable. He pointed out while

the like, usually a voluntary process in some States of the European

Union (eg. Belgium).



13. Similarly, he refused the plea of participant (see sub 5) the imposition of obligations,

which does not provide for any law, but section 13 of the Ordinance. The obligation to

to create a system to ensure the collection, treatment, recovery and

removal of electrical and electronic equipment put on the market to 13. in August 2005 the §

37n para. 3 of the law on waste. It is clear from that provision that the

producers created the system will have to fulfil the obligations related to

by providing funding for the management of historical electrical equipment.

At the same time producers by law obliged to create the system

to contribute; the obligations are laid down by law.



14. the restrictions on the right to the pursuit of an economic activity (sub 6)

a participant stated that this is a misunderstanding of "management" in the

the field of historical electronic equipment and financing of this

management on the part of some collective systems,

professional associations (for example. Confederation of industry and transport of the Czech Republic) and

The Office for protection of competition. On the infringement of article 81(1). 26 paragraph 2. 1

The Charter cannot go already because it is not a business. Additionally, you can

the law lay down the conditions and limitations for the exercise of certain professions or

activities. The right to do business and engage in other economic activities is not

"boundless" and the State is entitled to regulate the way the law is. A participant in the

this context pointed to section 37n para. 3 of the law on waste, of

which implies the obligation to establish a system for the management of the historic

electrical equipment and contribute to it. On the basis of the authorization in § 37n para.

5 of the same law the implementing decree, issued by the participant that has selected

Variant, when for each group of EEE shall ensure a common

the financing of the management of historical electrical equipment one collective

system that will be required to ensure appropriate financing for

all the historic WEEE in that group. This solution

motivated by the fact that the directive to national treatment, whether

ensure you create one or more collective bargaining systems. System

such funding was necessary to create in a short time and without

exceptions in each group of electronic waste. Because the law on waste

established as the basic criterion for contributing to system manufacturers

"market share", the solution that was chosen for each group

electrical and electronic equipment will be registered in a collective system with the largest

market share, that will be required to ensure the financing of the

the management of historical electrical equipment in that group. A prerequisite for

was that this system will not only provide financing passively

disposal of old electrical and electronic equipment, but it will also be actively

take care of the fulfilment of obligations by the other manufacturers who are not

for whatever reason, involved in the registered system. This will be the

According to participant funding management streamlines the handling of historical

electrical equipment, and at the same time ensuring a certain degree of "self-government"

These manufacturers with the highest proportion of Finance on the market. Such a system shall ensure

protection of the economic rights of the producers, business entities with

the largest share of the market, when they will be allowed to participate in the "making of

the rules ".



15. a participant also stressed that in any case is not regulated

business entities in the area of disposal of electrical and electronic equipment and electronic waste

(e.g. logistics or waste treatment), only are specified

financing conditions for the relevant market in the area of their liquidation.

Targeted exploit Decree also does not interfere with the economic activity of entities in the

the field of waste disposal, only implies the creation of one or more

collective systems. The directive and the law on waste, enable manufacturers

indicate the cost of dealing with historical electronic equipment; These

However, costs shall not exceed the costs actually incurred, which means

It is not expected that the operator of a collective system of writing

profit. From this it can be inferred that the legislature did not anticipate the business or

the emergence of a market in the area of finance dealing with the historical

electrical equipment and as well as the right of the European communities wondered

just about cover the cost of that collective system actually arise.

The State, through the law lays down the conditions for the exercise of activities,

i.e.. the financing of the management of historical electrical equipment.



16. In addition, the participant said, that the immediate cancellation of the entire Ordinance would

make it impossible to carry out the implementation of the directive, including the tasks of achieving annual

much of the collection and reuse of electrical and electronic equipment. In the list of manufacturers

Eee is 2600 of the obliged entities, which properly fulfils its

obligations. The cancellation of the decree would affect their legal certainty and

It would also create a problem, how to deal with already selected resources

designed to ensure that all obligations of the manufacturers.



17. Furthermore, the Constitutional Court received unsolicited expressions of the body of European

manufacturers of household appliances CECED CZ, which essentially characterizes the

the activities of the operators of collective systems and is intended to provide a "different"

view of the management of historical waste (electrical equipment).

Observations that through to the file will be presented to the participant

as evidence of the analysis of the activities of collecting systems with numbers and

facts. The Constitutional Court did not receive this analysis. Due to the fact that

It was a private initiative, this submission was based on the files, which

However, it does not mean that the person acquiring the goods obtains any procedural privileges

in the present proceedings.



18. the Ministry of the environment, the Constitutional Court stated that their

the original filing further extend and make up. This happened 8. September 2008 in the form of

comprehensive observations, which was prepared in cooperation with the

The Ministry of finance. In it, a participant explained the basic differences in the

understanding of the obligations of the producers, depending on whether it is a


electrical and electronic equipment produced by households (BtoC) and electrical equipment

others, especially coming from a business (BtoB). To

sphere of business, the European and domestic legislation extends at least

and it leaves its separate collection on the contractual freedom of the parties (the manufacturer and

customer-entrepreneur). In the case of historic WEEE

coming from households, the primary responsibility is determined solely

on the manufacturer. In this case, it is considered that in accordance with the principle of

the polluter pays principle is "polluter" manufacturer and are the responsibility of

for the take-back and handling, respectively. for the disposal of this

electrical equipment. Within this category, however, there is one more

the resolution, on the electrical equipment coming from households listed on the

market to 13. August 2005 (old electrical and electronic equipment) and the electrical equipment

placed on the market after that date. Old electrical and electronic equipment does not meet the

"modern requirements" and could not be applied the normal rules laid down

the law (e.g. labelling). For only this narrow group are laid down

Special rules, which consist in the obligation of manufacturers to create

the collective system to ensure the financing of all

historic EEE. At European Union level has been established,

that the responsibility for this historic burden will be borne by all producers,

at that point, markets its products on the market in a given territory. The liability of the

It is therefore a collective and collective is also a way of ensuring the management of

This historical electrical equipment. Czech Republic had the opportunity to

manufacturers have an obligation to create one or more

collective systems. Chosen was a variant of the more collective systems.

In the interest of substantive rationality, effectiveness and the satisfiability of the obligations of manufacturers

After consulting the professional public (in particular manufacturers) established

that for each group of electrical and electronic equipment, which has its own specificities,

will ensure the financing of the management of historical electrical equipment

a collective system. The creation of a collective system was left

on the products. A collective system that created the manufacturers with the most

market share in the Czech Republic, was entered in the list maintained by the

the Ministry and transferred to it all the duties associated with

This fact.



19. the argument of the applicant the opinions of the Office for the protection of

competition (hereinafter referred to as "the authority"), the participant said, that this Office received in

2005 and 2006 several initiatives to begin proceedings against the collective

systems that manage one of the categories of historical

electrical and electronic equipment. No administrative proceedings for abuse of a dominant

the position of the collective systems, however, has commenced. Always request

the opinion of the participant, the participant showed correspondence between him and

By the authority. Due to this fact, therefore, in his opinion,

misleading any argument any "letters" of the Office of "violation of

General competition law principles ". The reality is that the Office provisionally

reviewed the collective behavior of systems that behave according to the valid

and effective legislation, the Act and the implementing Decree of the contested

(including section 13 of this Ordinance) and did not find these infringements of the legal

legislation in the area of competition. Therefore, if the behavior of the collective

system according to the contested legislation was found to be

permitted by the legislation in the field of competition, cannot be

the conclusion that such legislation and regulations in the field of competition

violates. Either it is therefore this Ordinance from the perspective of legislation in the

perfect competition or legal relations governed by this

the Decree does not fall into the area of competition.



20. Finally, a participant said some of the knowledge from the perspective of comparison

some European countries access to the issues and results of the collection

in the Czech Republic. He pointed out that the difference between the responsibilities

individual in ensuring the obligations and the financing of

new electronic equipment from private households of their brand (put on the market

Member State after 13. August 2005) and collective responsibility in

ensuring the obligations and the financing of the management of historical

electronic equipment from private households, regardless of the tag (put on the market

a Member State before 1 pm. August 2005) establishes in its legal

adjustments to the 12 Member States (Czech Republic, Austria, Cyprus, Germany,

Ireland, Italy, Luxembourg, The Netherlands, Portugal, Slovakia, Spain

and Sweden). 8 additional Member States (Belgium, Estonia, Finland, Greece,

Lithuania, Malta, Slovenia and the United Kingdom) in legislation only

alludes to the need for joint financing of historical electrical equipment in

based on market share. In contrast, Hungary and Latvia at all

do not distinguish between methods of financing, while Denmark, France and Poland

provides for collective responsibility for the historical and new electric equipment.

A collective system that ensures all obligations of producers, it is

created in Belgium, Estonia, Ireland, Italy, Latvia, Luxembourg,

Hungary, Norway, Poland, Portugal, Greece and Switzerland. More

collective systems works not only in the Czech Republic (6), but also in the

Finland (2), Netherlands (2 non-competitive, for distinct groups), Slovakia

(13), United Kingdom (4), Spain (5 regions).



21. Finally, the Ministry of the environment reported that a proposal is

draws attention to the violation of article. 26 of the Charter, and the right to entrepreneurship and

the operation of other economic activities. The affected section 13 of the Decree No.

352/2005 Coll. lays down detailed conditions only to the financing of

historic Eee; the basic duties of the § 37n law

No. 185/2001 Coll., on waste. From the above it is clear that at the level of

European and national was the manufacturer of the electrical equipment transferred

responsibility for take-back, treatment, recovery and disposal

electrical and electronic equipment originating in the household (BtoC). At the same time are by law

established manufacturers, who place their products on the market in the Czech Republic,

specific requirements (conditions and restrictions-including the labelling of products and

his evidence). In cases where this is possible and achievable, it has

manufacturer a choice between duties individually,

jointly or collectively. Only in the case of historical burdens

(the old electrical and electronic equipment) is not possible and achievable performance

individual or solidarity, and therefore is legally provided for the fulfilment of

the primary obligations of the manufacturers collectively (section 37n Act). (I)

If in proceedings before the Constitutional Court found that the financing

the management of historical electrical equipment is covered by the provisions of article. 26

Of the Charter, there is no doubt that under art. 26 paragraph 2. 2 of the Charter, the law may

lay down the conditions and limitations for the exercise of certain professions or activities.

Manufacture of electrical and electronic equipment and its related to the financing of

electrical equipment after their useful life is one of such

the activities, for which the law provides for a considerable amount of waste and the conditions

the restrictions.



22. These observations on the participant accompany the comprehensive legal

analysis (annex # 2) called the "reasons for disagreeing with the proposal on the

the cancellation of the Decree ". In this analysis of the participant on the one hand reiterates its

the arguments from the previous observations, but in a much more sophisticated

form and submit new arguments. In particular, it emphasised that the

According to the directive, may be a historical burden to deal with elektroodpadovou

through one or more of the collective systems (paragraph 20 of the reasons

directive, article. 8 (2). 3 of the directive). The law expressly states that the historical

elektroodpadovou burden to manufacturers to resolve through one

they created a system that will be jointly financed. In the following

the organized sector of the economy comes into account elektroodpadového

the performance of the elektroodpadových obligations through only one

the collective system, or a maximum of one collective scheme

for each of the categories of EEE. This is the law of

waste and the Decree does not change anything on it. Aware of the needs closer to edit

some aspects of the functioning of the Czech economy, which in elektroodpadového

the law modified the only basic features, the legislature of the participant

to control edited by more conditions in particular) and methods for implementing

elektroodpadových obligations of the manufacturers (self-solidarity-

collectively, including further details of performance, section 37 h of paragraph 1. 3 and § 38

paragraph. 11 of the Act on waste), b) of entries in the list of manufacturers

electrical equipment (§ 37i 7 Act), and (c)) financing

sampling/collection and processing of electrical and electronic equipment and the elektroodpadů (§ 37n para.

5, § 37o para. 2 of the Act on waste).



23. a participant also detailed elaborate why his Decree corresponds to

the requirements of the article. paragraph 79. 3 of the Constitution, and the case-law of the Constitutional Court

the implementing regulations [here such conclusions from the findings of the SP. zn. Pl. ÚS

45/2000 of 14.2.2001 (N 30/21 SbNU 261; 96/2001 Coll.) and SP. zn.

PL. ÚS 52/03 20.10.2004 (N 152/35 SbNU 117; 568/2004 Sb.)]. According to the


the party was released by the body authorized to do so, within the framework of its

specifically, the competency of § 38 paragraph 1(a). 11, section 37 h of paragraph 1. 3, § 37i para. 7,

§ 37n para. 5 and § 37o para. 2 of the Act on waste, as well as section 37f para. 2,

§ 37j para. 5, § 37k para. 7 and § 37l para. 7 of the law on waste. In

relationship to historical electrical equipment coming from households (and

only in relation to them) the Ordinance stipulates that for each of the ten groups

electrical and electronic equipment will be running through which producers

meet their joint obligation to resolve historical elektroodpadovou

burden, a collective system (section 13 of the Ordinance), such that

represents the producer whose market share on the fulfilment of this obligation is

the largest, which are involved with the highest proportion of producers on

market with new electronic equipment (section 5 of the Decree). By a decree of the Ministry of

Furthermore, the law does not interfere with things reserved (this participant closer to getting divorced

Sub 26). Finally, the legislature in the law clearly defined the scope for

podzákonnou modification, which follows from its clear decisions to deal with the area

historic WEEE originating in households through

one created by the system, which will be jointly financed. In

this context, a participant noted the related provisions § 19

paragraph. 1 (b). ZC) of the Act on income taxes, which is topped by the idea

the legislature on the adjustment of the functioning of the collective systems and entries in the

list of manufacturers of electrical and electronic equipment.



24. the Special Rapporteur has devoted attention to the problem of establishing closer

the conditions for the realization of the primary statutory duties in accordance with the law

and in the framework of its mandate. The release of the elektroodpadové order under their

opinion space set aside by the legislature not to exceed. Fully respected

implicitly and explicitly expressed the will of the legislator, to make common

solution load was taken by means of the historic elektroodpadové

one system set up by the producers, in which after his

create (in a second phase) have to contribute all current manufacturers. From

the provisions of § 37n para. 3 and § 37 h of paragraph 1. 1 (b). (c)) of the Act on waste

It is clear that the Act of the collective system ensuring

fulfilment of the obligations of producers of electrical and electronic equipment. The petitioner in this

context pointed to the fact that 21 out of 27 members who

submitted the present proposal to repeal the Decree, voted for an amendment

the law on waste, defining the main parameters of the Czech elektroodpadového

economy, no votes against. Completely within its mandate and under the

to create a workable system for the historic WEEE

coming from households was based on participant set out the way in which

to resolve the situation, if the manufacturers have agreed on the creation of a single

system for the solution of the historical elektroodpadové of the load. This method of

the solution fully respects the will of the legislature and the breadth of the mandate for the adoption of

subordinate legislation (closer to customize the way the performance of the duties

entries in the list, and financing): the system to address the historical

elektroodpadové load is created by all the manufacturers and in the absence of

agreement between all producers is a system involving producers with

the largest share of the solution of this burden.



25. As a further aspect of the constitutionality and legality of the publication of a notice, to assess

the applicant conditions for realization of the determination of the detailed primary legal

the obligation, while respecting the principle of proportionality, as set out

Constitutional Court No. 229/2000 Coll. [URpozn.red.: SP. zn. PL CS 3/2000

dated 21.6.2000 (N93/18 SbNU 287)] in this context, he pointed out these

circumstances:



and even the waste) law directive envisaged for dealing with obligations

producers of Eee to households exclusively historic collective

the solution, in particular due to the nature of the Eee and the impossibility of

to specify a particular person;



(b)) the realization of the legitimate expectations of the largest manufacturers of

involved in one collective scheme have the greatest influence on the solution

the historical elektroodpadové of the burden in accordance with the principle of responsibility

producers (recitals 5, 12, 19 and 20 of the reasons of the directive);



c) determining the system through which manufacturers have to deal with

historical elektroodpadovou burden, represents the smallest possible

ingerenci State to a "self-governing" area producers (any other solution

a situation where manufacturers fail to agree on the operation of a single system, for example.

the selection of the collective system, depending on how thick the collector network,

agrees to create within a specified period, would mean the laying of new obligations,

that have no support in the law);



(d)) the obligation to join the most represented a collective system in

the case of the above-described the stalemate affects only the smaller part of the manufacturers

(manufacturers on the market only a smaller amount of electrical and electronic equipment);



(e)) position of this minority of manufacturers was affected only in strictly

need to fully (by specifying a system, through which they have to perform their duty,

not defining any new obligations), since it was provided

equal status of all producers within the majority of the collective system

(cf. also article 20 reasons the directive). Regardless, if this is about

manufacturer-founder, manufacturer-manufacturer or voluntary participant-

allocated by the participant, the operator carries out collective for all

elektroodpadové obligations of the system under the same conditions, by the same

the standard contract and for the contribution calculated according to the same methodology. Sample

the methodology for calculating the contribution agreement, as well as other aspects of collective management

of the system are presented to the Ministry for consideration before writing to the

list of manufacturers of electrical equipment;



(f)) of the chosen solution is based on a non-profit principle that protects

the manufacturer (especially a minority) and the consumer [see 20 reasons the directive,

§ 37n para. 3 of the law on waste and article. 8 (2). 3 of the directive,

understanding the costs, § 19 para. 1 (b). ZC) of the income tax Act,

§ 5 para. 3];



(g)) referred to the solution was adopted with regard to the fact that this is a

the issue of a temporary, since the historic WEEE from private households in

a few years after the entry into force of the Decree either completely disappear,

or will they fundamentally marginal.



26. A comprehensive discussion of the party has also expressed opposition to the establishment of new

the primary obligations contrary to article. 2 (2). 4 of the Constitution and article. 4 (4). 1 and

2 of the Charter. The law on waste establishes the obligation to resolve the primary producers

the historical burden of the elektroodpadovou households in the form of how the obligations of the

participate in the collective system and obligations to this system

to contribute to the costs associated with the removal of this burden. Decree

does not bring any additional duty, which would not have been a mere illustration of the

the obligations laid down by law. The same is true for the solution of the situation where a

producers on the functioning of the single system do not agree. Adjustment contained in the

the provisions of section 13 of the Ordinance and other adjoining provisions

does not establish any new obligation on producers or obligation

the law not only expands the logically possible to regain control and fixes

situation, but which is caused by the necessity to implement the primary obligation

provided by law. It is therefore solely on the technical and organisational

measures taken to ensure the realization of the primary obligations of the

laid down by law in real life. It is the job of the Executive Branch, where it

the legislature, in more detail to adjust the solution to this and other situations, which

the existence of reasonably can be expected in real life (following on the

Congressmen). The opposite interpretation would lead to the absurd conclusion that

participant of the Decree, in principle, cannot edit anything, because any

instantiating the statutory obligations necessarily elektroodpadových

shall be borne by defining what in law is not modified (e.g., the obligation to

to submit an application for registration in the list of manufacturers of electrical equipment and the annual report

the prescribed forms). In the case of the Act of the legislature

set clear limits on what and in what aspects of my Decree in more detail

adjust and Decree is certainly located within these limits. The reason for this

the existence of the State is defining and enforcing the basic rules of behavior

allowing for the functioning of society, which includes the activities of the type of solution

the historical elektroodpadové of the load. State to this function cannot

resign and rely on it, it always concerned to "somehow agree". By

would deny the meaning of its existence. Producers and the company legitimately

they expect the State defines and enforces compliance with the basic rules of the

cohabitation in the areas in which it can be logically need for such

rules expected. Therefore, if it can be expected that the producers in the

the functioning of a single system to agree, was the duty of a participant in the

the legal authorization to establish the way to deal with such situations, as well

as other aspects that the functioning of the economy and elektroodpadového

producers might compromise. The Ministry when the publication of a notice

progressed



Secundum et intra legem

rather than outside the law (



praeter legem

) and fully when you issue this order comply with the principle of pregnantně

expressed by the Constitutional Court in finding pl. ÚS 7/03 of 18.8.2004 (N


113/34 SbNU 165; 512/2004 Coll.), according to which, "to put it simply, if the

According to the law to be X, it is for the ... (the competent authority).

identify that has be Xl, x 2, x 3, not whether or not it should be Y ". Cannot be

Yet the conclusion that would be demanded by the determination of any

obligations directly and exclusively by the law and who clearly hold

the complainants (Editor's Note: sic-correctly: the petitioner), since it would clearly

led to the absurd, and the denial of the meaning of a secondary (and in the

some cases, even primary) standardisation, since the conceptual part of the

each legal standards is the definition of certain rights and obligations of the addressees

standards [find SP. zn. PL. ÚS 5/01 of 16 June. 10 2001 (N 149/24 SbNU 79;

410/2001 Coll.)].



27. Likewise, the participant said, and expanded its argument concerning the

the complaint of the applicant, the contested deal with the situation, when the producers

agree on the operation of a single system, restricts the right to do business. This

the claim is indicative of the lack of understanding of the fundamental premise of the functioning of the

elektroodpadového holding by the promoters of the proposal on

the cancellation of the decree and the Office for the protection of competition. The proper

the functioning of the economy allows many operators elektroodpadového

(in particular transport and processing companies), thus

separately, on their own behalf and on their own responsibility to perform

continuous activity for profit. The more electrical equipment and

electronic waste producers collect, the greater the opens a space for

services for transport and processing companies. Greater demand for

transport and processing services allows multiple providers

services operate to the market and encourages competition between these

the provider. Larger quantities of waste to processing allows

processing companies to take and develop costly processing

technologies that are becoming efficient manner by only after reaching a certain

the quantity of the processed material. The reason for taking these

technologies is that they lead to the reduction of the cost of processed drive

which again encourages competition in the market. The purpose of the provisions of section 13 of the

ensure the functioning of the Czech economy and elektroodpadového for a double

the situation, when the producers (either intentionally or unintentionally) do not agree on the functioning of the

a single system through which they will be removed from households and

handle the historic WEEE. The system ensures higher

peace collection, thus the repletion of processing capacity and the ability to

investment in technologically more demanding operations.



28. According to the applicant the same can be applied to the operator

collective systems, where there is no restriction of business already

because the performance of the elektroodpadových duty is for the manufacturer exclusively

fulfilment of legal obligations, not a business; the financing of the costs of

the fulfilment of obligations to historical electrical equipment from private households is not

gainful activity [§ 37n, paragraph 3, of the Act and article 8, paragraph 3, of the directive,

Emphasizing the principle of costs, § 19 para. 1 (b). ZC) of the

income tax Act and § 5 para. 3 Decree]. Performance elektroodpadových

obligations for the producers it represents a condition for the exercise of their

business activity within the meaning of the provisions of article. 26 paragraph 2. 2 of the Charter,

not a business activity (that is the production and sale of the new

electrical and electronic equipment). An entrepreneur involved in the manufacture of new

electrical and electronic equipment cannot do business in accordance with the law, if

care about their products at the end of their life cycle, and at the same time

actively help to solve the historical burden elektroodpadové

accumulated in the period preceding the adoption of the directive and the law No.

7/2005 Coll., the manufacturer is obliged to logically will try to do with what

the least cost and each of the producers may have a different idea about

How to enforce this obligation. The obligation to resolve historical

elektroodpadovou load through one system, however, provides for the

(see attendee's argument above), the law, which received collective solutions

follows the Edit contained in the directive. The collective system is based

to do this, and only this, that will be elektroodpadové for their participants

the obligation to carry out (to ensure their fulfilment). Neziskovost

collective systems follows not only from the logical interpretation of the provisions of section

37 h of paragraph 1. 1 (b). (c)) of the Act on waste, but also by the provisions of the section explicitly

5 (3). 3 elektroodpadové of the Decree. Collective systems are not, and according to the

legislation, nor can they be, a means to make a profit, but

only non-profit platform created by the manufacturers to carry out its statutory

duties. Although they may have different approaches to filling elektroodpadových

the duty of its participants, however, it shall not carry out in order to

to make a profit, but manufacturers choose posts required to

ensuring the performance of legal duties. Possible reserves are not

paid to any of the partners, but used for the performance of elektroodpadových

duties. As a participant pointed out, if today some

collective systems of larger or smaller reserves, these are not

other than the result of a time discrepancy between the volume of resources

selected today based on the amount of EEE placed on the market and

the volume of money spent tomorrow following the quantity

electrical/electronic waste, which the home gradually shedding.

A reflection of this fact, among other things, that the funds collected by the

collective schemes are not subject to income taxes — a collective

systems from the logic of things do not exercise their activities in order to achieve

profit and tax contributions would become even more onerous burden on the illogical,

fulfilment of legal obligations on the part of producers. Neziskovost collective

systems, in particular, the manufacturer then protects the minority who are not shareholders

collective system (a requirement that each manufacturer of pool

created by the system, taking into account the range and variability of a set of

manufacturers were not reachable). Participant of your extensive additions to the

the observations he concluded by stating that the majority producers, therefore, in the light of

on the uniformity of the terms and conditions for the manufacturer involved in the system and the neziskovost

the system does not confer any competitive advantage, and that a solution that provided

for a situation where producers do not agree on the operation of a single system,

so neither the right to entrepreneurship not for collective systems operators

It does not limit. These operators do not undertake, but for producers operating

strictly a non-profit platform for the performance of their legal duties.

The solution applies only to the historic WEEE

from households where the special nature of determining individual

the responsibility of manufacturers and where the share of the total electronic waste will be with

diminish over time.



29. On 24 March 2006. September 2008 the Judge-Rapporteur received extensive solicitation

the material of the Consumer Electronics Association and the Czech Association of importers and

manufacturers of lighting equipment in which it is explained extensively and in the opinion of the

its promoters to ensure the financing of the management of electronic waste management, to

its possible models (concentrated and dekoncentrovaný), and in particular to

negative consequences and risks of the cancellation of the decrees in question in terms of

risk for society and the environment for collective systems,

manufacturers, municipalities, regions, transport and processing companies and the State. What is

as regards the legal page (a contradiction of the decree law, limitations on the right

a business), authors of this expert opinion pointed to

complement representation of a Subscriber (sub 18 to 28). This material was

also attached a letter of the President of the Union of towns and municipalities, that is addressed

Minister for the environment and dealing with the shortcomings of the proposal

the amendment to the waste framework directive with regard to the new directive on waste, which

approved by 17. in June 2008 the European Parliament. Due to the fact that

It was a private initiative, it was also this Administration based in the

the file, which, however, does not mean that the person acquiring the goods obtains any

procedural privileges in the present proceedings.



30. January 3. 11.2008 received a further expression of the judge-rapporteur group

the senators, in which occupy the opinion referred to above, the filing of

Subscriber (sub 18-28) and the Consumer Electronics Association and the United

Association of importers and manufacturers of lighting equipment. In the opinion of the

notes that, on many sides of the Court sent materials

unilaterally, and often very distorted and incorrectly described the current

status, and the opinions of the various governmental authorities and other persons (e.g..

opinion of the authority for the protection of competition on the issue

It is, in fact, quite the opposite, than it is in user submissions

suggested). The intervener also pointed out the fact that

The Ministry of environment as a participant in the proceedings in the explanatory memorandum

the upcoming amendment to the Act on waste earlier this year identified

current status (existing monopoly of collective systems)

unsatisfactory if the proposal has based, inter alia, that "the proposed

the amendment mainly seeks to set transparent rules in the

practice of individual collective bargaining systems in each group

electronic waste that for a manufacturer of EEE shall ensure the return


subscription, separate collection, recovery and disposal of electronic equipment and more

electronic waste, as the existing mode of operation of these systems within the

the historic electronic waste after legal and factual page showed up as

unsatisfactory, leading to the risk of non-compliance with the international obligations of the United

of the Republic. Having regard to the applications lodged a constitutional complaint had been raised and

doubts about the constitutionality of the current concept. In accordance with the recommendations of

The Office for protection of competition, it is assumed to

the collective system, even within the same group of electrical equipment ". Side

the participant is suspended over the fact that the Court provided in the newly

materials Decree (monopoly) Conversely, the Ministry again.



31. the intervener further pointed out that, in its opinion addressed to the

representation of the Ministry of the environment and the consumer Association

Electronics and the Czech Association of importers and manufacturers of lighting equipment

is not related to the examination of the proposal for the repeal of the Ordinance, that is,. with what things

that should Ustavní the Court to decide. In the framework of the management has Ustavní

Court decisions only and exclusively on the question of whether Regulation No. 352/2005 Sb.

modified duties beyond the scope of the authorization referred to in Act No. 185/2001

Coll., and thus whether this Decree has been adopted in accordance with the constitutional

the laws of the United States. As stated in the application for revocation of the order, this

Decree (see, in particular, section 13, paragraph 1, dealing with monopoly

selected collective systems) goes beyond the mandate of the law, and is

Therefore, unconstitutional. The intervener also (as the applicant)

He pointed out an attempt to take advantage of the amendment to the law on waste, of March of the year

2006 additional legalization decrees that this rule introduced in section

in article 13(3). 1 in 2005. However, the above mentioned experiment Chamber

were rejected by the Chamber of Deputies and is therefore not legally relevant.



32. For completeness, adding that the judge-rapporteur in the sense of § 69 para. 2

the law on the Constitutional Court sent a petition to the public also

the Ombudsman. Within the prescribed period the Ombudsman has not communicated that

intends to enter into the control.



33. The Constitutional Court has turned to the participants and intervention with

requests for a statement whether it agrees with the abandonment of the oral proceedings.

The participant and the intervener expressed according to § 44 para. 2 of the law on

The Constitutional Court consent. The plaintiffs ' group, no-one within the prescribed

the time limit to respond to the consent was departing from the oral proceedings according to the

§ 101 paragraph. 4 of the ZPO in conjunction with section 44 para. 2 and § 63

the law on the Constitutional Court expressed in silence.



34. According to the current schedule of the work of the Constitutional Court for the year 2006 was a proposal from the

assigned Judge George Muchovi as a judge-rapporteur. However, because the

his proposal was not accepted, the award procedure according to § 55 of the law on the constitutional

the Court has appointed the President of the Constitutional Court, Pavel Rychetský himself judge,

drawn up by the award and its justification.



III.



Formal conditions of discussing the proposal and the constitutionality of the legislative

procedure



35. The Constitutional Court notes that legislation was adopted, and

issued in accordance with the Constitution and published in accordance with the Act No. 309/1999

Coll. on the collection of laws and the collection of international treaties, as amended

regulations. Discuss the condition has been met with the Ministry of finance.

According to the provisions of § 68 para. 2 of the Act on the constitutional court assesses the Constitutional

the Court, in deciding the content of the Act or other legislation of the

for their compliance with constitutional law, and in the case of other legal

prescription, whether or not the laws, to determine whether they have been accepted and issued within the limits of

The Constitution laid down the competence and constitutionally prescribed way. The provisions of the

article. paragraph 79. 3 of the Constitution provides that the Ministry may, on the basis of and in

the limits of the law, legislate if they are empowered by law to do so.

The contested Decree No. 352/2005 Coll. was released on the basis of a mandate

contained in the following provisions of the Act on waste:



and section 37f) para. 2-"the Ministry shall determine the implementing regulation

list of products which fall into the Group of electrical and electronic

the device referred to in Appendix 7 to this Act ",



(b)) § 37 h of paragraph 1. 3-"the Ministry shall determine the implementing regulation

detailed conditions for the various means of fulfilling the obligations of manufacturers under the

paragraph 1 and the contents of the annual reports referred to in paragraph 2 ",



(c)) § 37i para. 7-"for the purposes of entry in the List, the Ministry provides

an implementing regulation further conditions how to carry out the duties

and ensure the funding referred to in paragraph 3 (b). (d)), and (e)) "



(d)) § 37j para. 5-"the Ministry shall determine the implementing regulation

means of identification of the electrical equipment referred to in paragraph 2 and the list of substances

that the conditions laid down in the Decree does not apply the provisions of § 37j

paragraph 3 ",



(e)) § 37k para. 7-"the Ministry shall determine the implementing regulation

the pattern of the graphic symbol for the marking of electrical and electronic equipment for the purpose of

the take-back of waste electrical and electronic equipment and separate collection ",



(f)) § 37l para. 7-"the Ministry shall determine the implementing regulation

technical requirements for removal of priority substances and components from the

electronic waste, storage and processing of electronic waste, scope and method

keeping records about arriving at the electronic waste and ways of its processing and

the use and method of reporting facilities for the collection, processing and use

electronic waste ",



g) § 37n para. 5-"the Ministry shall determine, after consultation with the Ministry of

finance an implementing regulation further financing conditions,

in particular, the method for calculating the minimum amount of stored funds

the ring-fenced the bank account and the minimum amount of indemnity "



h) § 37o para. 2-"the Ministry shall determine, after consultation with the Ministry of

finance an implementing regulation further financing conditions under

paragraph 1 ",



ch) § 39 para. 12-"the Ministry shall issue a decree and) management

continuous registration of waste and for archiving this evidence for some

types of waste, (b)) the way of reporting waste, waste

waste, hazardous waste sites, muster sběrových posts

waste, waste, waste carriers, warehouses, waste of persistent

organic pollutants, PCB, PCB wastes and equipment

containing PCBs and the method of reporting changes in their records, the number and

the State taken over by car wrecks and the ways of their processing, the type,

the amount of electronic waste and ways of its processing, use or

delete, and (c)) the way of keeping records of consents issued and other

decision issued under this Act ".



It is apparent that the subject-matter of the proceedings is concerned primarily with the mandate contained in section

37n para. 5, and in section 37 h of paragraph 1. 3 of the Act on waste (see below), in the case of §

37i para. 7 this is a link to the Edit contained in § 37n this Act.



36. The contested Decree was promulgated in the collection of laws on 15 December. September 2005

and became effective on the same day. Has not yet been amended, as well as not

amended or repealed the provisions of the law on waste, which are a measure of the

for the abstract control of constitutionality and legality of this order. A proposal from the

It was therefore found to be admissible.



IV.



The assessment of the constitutionality of the existence of a single collective editing system for

historic WEEE in accordance with § 13 of the Decree No. 352/2005 Sb.



37. By Act No. 7/2005 Coll., amending Act No. 185/2001 Coll., on the

waste framework directive, as amended, was in the Czech legal order

transposed the directive of the European Parliament and of the Council of the European Union.

2002/96/EC on the enforcement of Community environmental policy

in the field of electric and electronic waste equipment. Member

States is established by this directive the obligation to take the appropriate measures

for the disposal of waste electronic equipment. Member States should

to ensure that manufacturers when placing their products on the market to provide sufficient

guarantees the financing of waste electronic equipment and their

properly label their products. Manufacturers must provide guarantees for the

the financing of the costs associated with the treatment of used

electronic equipment to 13. August 2005. Member States was further saved

the obligation to ensure the creation of lists of producers and

Furthermore, the collection and regular disclosure of information about the quantity and

categories of electrical and electronic equipment produced and processed.



38. The contested Decree on waste electrical and electronic equipment

performs the appropriate enabling provisions of the Act on waste, which generally

allows manufacturers to carry out their duties through the so-called.

the system, which means the network devices to collect elektroodpadů, places

taking back Eee, installations for the treatment, recovery and

delete elektroodpadů and electrical equipment and contractual relations between their

operators and manufacturers of electrical equipment, whose aim is to ensure

processing and use of electrical appliances and recovered separately

collected elektroodpadů [section 2 (b) (c)) Decree]. These systems are in

the meaning of section 37 h of paragraph 1. 1 of the law on waste a total of three. The individual system

is created and operated independently and at their own expense one


by the manufacturer. In this case, under section 12 of the Ordinance shall establish an assigned

bank account-bound and stores on this account funds or

enters into an insurance contract. Solidarity-based system is being created and maintained by

two or more producers and, finally, the collective system is created

manufacturers or producers responsible legal entity and operated by

legal person other than the manufacturer or producer, in charge of legal

persons [section 2 (c) (d)) to (f)) Decree]. The Decree distinguishes the management of

electronic equipment originating in households listed on the market after the date of

August 13, 2005 (section 12) and before that date (section 13). While in the former case

the manufacturer is not in the selection of one of the above three systems

the financing Decree limited (see article 4, paragraph 1, of the Decree), for historical

electrical equipment, electrical and electronic equipment produced by households,

put on the market to day 13. August 2005 and intended to back [§ 2

(a). and) Decree], the § 13 para. 1 decree that for each

a group of electrical and electronic equipment provides joint financing of the management of

historic electrical one collective system, not

more collective system or individual systems or solidarity.

Just pointing to this provision the petitioner's complaint, which, moreover,

claims that taking into account the interdependence of this provision with other text

You must cancel the entire Ordinance.



39. the contested provisions of the Decree:



section 13 of the



More detailed conditions for financing the management of electronic equipment originating in

from homes placed on the market to day 13. August 2005



(1) for each group of electrical and electronic equipment provides a common implementation

the financing of historical waste electrical one collective

the system.



(2) the producers pay contributions to old electrical and electronic equipment into the

collective system in the manner prescribed by the operator of a collective

system referred to in section 5 of the assessing Department before writing it to the list.



Of the above and cited provisions of the law on waste zmocňovacích

with this provision, excluding § 37n para. 5, referred to

the appellant, as a participant, to the still section 37 h of paragraph 1. 3, according to which the

"The Ministry of the implementing regulation lays down the detailed conditions

the various means of fulfilling the obligations of the producers referred to in paragraph 1 and the contents of the

the annual report referred to in paragraph "and § 37i para. 7, which provides that

"for the purposes of entry in the List, the Ministry shall determine the implementing

a prescription for more terms and conditions how to carry out the duties and ensure

financing referred to in paragraph 3 (b). (d)), and (e)). "



40. The dispute is therefore kept as to whether:



and anchoring options only one) of the collective management system

historical electronic waste in accordance with § 13 para. 1 of the Decree does not exceed

the authorisation under paragraph § 37n 5 of the Act on waste and this is not contrary to

the requirements of the article. paragraph 79. 3 of the Constitution,



(b)) if not, whether they are not how this Decree, so the limits of

authorization to release it in breach of article. 2 (2). 4 and article. 4 (4). 1 and 2

Of the Charter, as it imposes the obligation with which the Act does not count, and finally



(c)) that they are not under claim of the applicant in breach of article 88(3). 26 paragraph 2. 1

Of the Charter, which enshrines the freedom of business and other economic activities.



41. the task of the Constitutional Court reviews arguments relating to the

efficiency, economy and other such aspects of the legislation

the handling of the so-called. historic, although he is aware that the way

abstract checks in this case resolves the dispute business

subjects. Nor is his immediate task to deal with the possible

the risks of cancellation of the decree for the functioning of the entities to which its

the provisions of the fall, since there is no doubt that a party in the

conjunction with the parts involved compulsory subjects managed to

to create a functioning system of waste electronic equipment. The Constitutional Court, however,

does not have the instruments for the assessment of such a system, and it's not even his

the Mission of the. Substantial in terms of the criteria contained in the article. 87 para. 1

(a). (b)) of the Constitution is whether this provision is not in conflict with the constitutional

policy or law. Also, it should be noted that neither the appellant,

not a party to any neargumentují home with Community legislation

the law, which leaves the organisation of financing the management of the historic

electronic waste in the Member States, which are progressing in this direction

According to its terms at the level of secondary legislation (the law or to the

baseline, see Implementation of the Waste Electric and Electronic

Equipment Directive in the EU. European Commission. The Institute for

Technological Prospective Research. EUR 22231 EN. Luxemburg 2006 with.

59-83), and the opposite claim of the applicant and the intervener, compared

the claim of the participant was not therefore assessed. Similarly, it was not possible from the

procedural grounds immediately evaluate the content of the Act itself

waste. For the same reason there was no need to deal with the objection of the participant

regarding the claimant's permission (sub-24). The fact that the vast majority of

Members who review the decrees in question have signed,

voted for a Bill, not taking into account the importance of the subject,

No matter that this is in our constitutional law has not yet

irrelevant.



42. The claim of the applicant is directed primarily against the provisions of § 13 para.

1 decree that establishes the existence of only one collective scheme

dealing with historical electronic equipment, which the rapporteur sees the

exceeding the legal authorization. The Constitutional Court in its present case-law

He explained the basic principles in relation to the subordinate, normotvorbě

impact on the assessment of the contested Decree. The State's authority, which is

authorized to issue the podzákonného legislation, must do

"secundum et intra legem", not "praeter legem". Podzákonný legal

the prescription must be generic and therefore turn out for an indeterminate group of recipients.

Additionally, this legislation must be issued by an authorized body, cannot

to intervene in the Affairs of the reserved Act, which include the primary rights and

obligations, and it must be evident the legislature to modify the above will legal

standard, therefore, must be open space for the realm podzákonného

prescription. [cf. findings SP. zn. PL. ÚS 45/2000 of 14 February 2000. February 2001 (N

30/21 SbNU 261; 96/2001 Coll., SP. zn. PL. ÚS 5/01 of 16 June. October 2001

(N 149/24 SbNU 79; 410/2001 Coll. and SP. zn. PL. ÚS 7/03 of 18 May. August

2004 (N 113/34 165 SbNU; 512/2004 Sb.)].



43. The contested Decree specifies the system to ensure the take-back,

processing, recovery and disposal of historic WEEE that is contained

in § 37n para. 3 of the law on waste. Although that provision

only mentions about the system, it cannot be considered as exhaustive of

the perspective of the statutory definition of its form. The subject of the objection of the plaintiff

While it is not a form of collective system, i.e. a system within the meaning of § 37 h

paragraph. 1 (b). (c)) of the Act on waste and § 2 (b). f) Decree, but

the fact that this is only on a single system.



44. paragraph 37n para. 3 Act transposes into our

the rule of law § 8 para. 3 of the directive, according to which financing the costs

associated with the management of waste electrical and electronic

devices from products put on the market before 13. August 2005 (historical

waste-



historical waste, historische Altsgeräte

) must be provided by one or more systems to which all

producers who operate on the market when the respective costs

occur, contribute proportionately, e.g. in. in proportion to their shares in the market in accordance with

type of device (shall be provided by one or more systems to which all

producers, existing on the market when the respective costs occur,

contribute proportionately, e.g. in proportion to their respective

share of the market by type of equipment). The directive so

optional for the Member State, within the framework of their national legal systems identified

whether for historical equipment there will only be one or more

systems management. As pointed out by the appellant, the approach chosen in the

each Member State is to admit the plurality system

diverse (sub 20).



45. With regard to the assessment of the contested Decree, however, it is immaterial whether

the definition of a single system for the management of historic facilities for

each group follows from the very electrical statutory and

Therefore, whether the decree only specifies that system within the meaning of the statutory modifications

or whether the authorisation to issue the Decree included also determine the number of

systems.



46. The very concept of "system" under § 37n para. 3 of the law on waste, which

the legal definition is contained in paragraph 2 (a). (c)) of the Decree,

It is not clear from this point of view, whether it only includes one or more

systems as they are defined by Decree. For a more detailed definition of its

the content is, therefore, necessary to be based on the purpose of the obligation to establish a system to

ensure the management of historical electronic equipment, which

identification, it is necessary to rely on the basis of this obligation in the law

Of the European communities. In this context, the directive in its recital Milan Svoboda presents

20 specifically provides that the responsibility for financing the management of

historical waste should be shared by all existing producers in the


framework of collective financing schemes ("the responsibility for the

financing of the management of historical waste should be shared by all

existing producers in collective financing schemes ") to which

contribute in proportion to all producers, existing on the market at the moment

costs occur. The collective responsibility of all manufacturers for

referred to the historical burden is reflected in foregoing § 8 paragraph. 3

directive, it cannot be excluded even in the interpretation of the obligations of the

create a system pursuant to § 37n para. 3 of the law on waste. The purpose of this

the obligation is the existence of such a management system, with

regard to the collective responsibility presupposes the participation of all manufacturers

the functioning of such a system, and in particular on its funding. A measure of the

responsibility of the individual producers, in particular as regards financing

of the system, it is dependent, in particular, of the market share.



47. Furthermore, it should be noted that the collective responsibility of manufacturers for

with historical electronic equipment is reflected, in particular, to the obligations of the

producers create the system, as well as to the obligations of manufacturers

to fund this system. Both obligations have their basis in § 37n para.

3 of the law on waste. In relation to the first obligation, the law assumes that the

the system will have one of the forms referred to in section 37 h of paragraph 1. 1

the law on waste; in this provision is defined in compliance with one of the

forms of the system as a prerequisite to comply with obligations, under which can be

subsumovat i return the collection, processing, utilisation and deletion

historic WEEE. It is also necessary to point out that the

the law provides for the obligation to contribute to this system in the corresponding

the range, while the criterion determining the scope is defined only

exhaustive market share. The obligation to create the system

not to be confused for the obligation to all producers to agree on one

management system with electronic equipment, which not even the parties do not claim

and which prevents the section 37 h of paragraph 1. 1 of the law on waste, setting for manufacturers

choice of one of the forms of the system. Loading system with historical

electronic equipment within the meaning of § 37n para. 3 of the Act on waste must

reflect on the one hand the right of producers to choose the system that will be

perform their duties in connection with the treatment of waste electrical and

electronic waste, on the other, but at the same time it must reflect the liability

current manufacturers for disposal of electronic waste management and historical burden with

the related obligation of all producers to participate in the financing of the

This system.



48. paragraph 37n para. 5 of the Act on waste authorizes to modify

detailed funding conditions. historical management system

electronic equipment, with the demonstrativním enumeration defines some of the

These terms and conditions. Also § 37i para. 7 of the law on waste authorizes a

the purpose of writing to the list of producers of Eee to the definition

terms of how the obligations set out in the eighth episode of the of the law on

waste and ensure the financing of the management system

historical electronic equipment. In terms of the assessment of whether the determination of the

one collective scheme fulfils the conditions laid down in article 4(1). paragraph 79. 3

The Constitution, in view of the above basic principles in relation to the

Bye-normotvorbě necessary to deal with the question whether in this range

the contested Decree was issued within the limits of the law, whether it is clear from the mandate

will the legislature to modify the above the legal standard and finally whether as a result of

It does not occur to the determination of primary rights or obligations.



49. in relation to the first question, the Constitutional Court concluded that the contested

the Decree does not exceed the space set aside by the legislature, a closer definition of the

waste management system does not deviate from the framework of the statutory modifications to the system

contained in the law on waste.



50. Central to the assessment of the application for revocation of the decree is

the question of whether the provisions of the law of zmocňovacích on waste can be

to infer the will of the legislator to modify the above the legal standard, i.e., whether the law

opens up the space for such a specification of the management of historical

electronic equipment in the podzákonném code, which is contained in § 13 para.

1 Decree. In this context, the Constitutional Court notes that permission

to lay down the detailed conditions of funding strictly for this purpose

assumes even more detailed specification of the system. The law assumes that the

obligations associated with the historic electronic waste will perform system

created by the producers, whose costs will be funded by all

manufacturers. From this perspective, the definition of the detailed conditions necessarily involves

and determine which of the waste electronic equipment will be in the case of

the absence of the agreement of all producers to ensure the management of historical

electronic equipment, whose costs will be met from the contributions of all

manufacturers. The provisions of § 37n para. 5 of the Act on waste contains

also the mandate to determine the podzákonným legislation, whether dealing with

historical electronic equipment will ensure a pluralist system,

who was the more collective action systems, or

only one collective scheme. If section 13 paragraph 1. 1 of Decree stipulated that

for each group of electrical and electronic equipment provides a common implementation

the financing of historical waste electrical only one

the collective system, did so in accordance with the statutory mandate under section

37n para. 5 of the law on waste.



51. In relation to the assessment of compliance of the contested Decree, with art. paragraph 79. 3

Constitution, the Constitutional Court finally assess the question of whether the determination of a single

collective system has not been established, the primary obligation of the manufacturers, which

may be established only by law, and that as a result of the determination of the

duties beyond the scope of legal provisions, it does not breach article. 2 (2). 4

Of the Constitution and article. 4 (4). 1 and 2 of the Charter. The appellant exceeded this

sees in the determination of the obligation of only one collective

the system. The provisions of § 37n para. 3 of the law on waste, while other

the producers does not give the right to choose the system to which they will contribute and

at the same time use, regardless of whether it was set only

one or more of the collective systems. In contrast, the obligation to participate in

the financing of the system, without itself, Nikos ganos participated on a collective

historical electronic equipment management system. From this perspective,

Thus, § 13 para. 1 of Decree No new obligation. Also

such an obligation could not be found in the limitations of other collective systems

in the exercise of that activity, since, as mentioned above, the participant

management is empowered under section 37n para. 5 of the Act on waste, lay down by Decree

the existence of only one collective management system with historical

electronic equipment, so it cannot be a determination of the primary

obligations in podzákonném legislation.



52. the Constitutional Court considered the plea of breach of § 13 para. 1 of Decree

with the article. 26 paragraph 2. 1 of the Charter. According to the article. paragraph 41. 1 of the Charter can be rights

enshrined in article. 26 of the Charter claim only within the limits of the laws, that this

the provisions are carried out. From this point of view is to be understood and legal

the regulation of the management of historical electronic equipment, which has its

basis both in the aforementioned provisions of the Act on waste and the law

Of the European communities, which was national in question by editing the

transposed. The mere possibility of a collective system is

places and the article. 8 (2). 3 of the directive. Because the regulation of waste

historical electronic equipment was provided for by law, and also the definition of

one collective scheme has been carried out on the basis of the law and in its

the limits of the Constitutional Court cannot regard to the alleged infringement of article 81(1). 26 paragraph 2.

1 of the Charter.



53. the Constitutional Court thus did not conflict with the constitutional, the contested Decree

policy or the law, therefore the proposal to repeal the contested order under

§ 70 para. 2 of the Act on the Constitutional Court rejected.



The President of the Constitutional Court:



JUDr. Rychetský in r.



Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, a decision of the plenary, the judges adopted a Vlasta

Formankova, Dagmar Lastovecká, Jiří Mucha and Elisabeth Wagner.