The Constitutional Court of the Czech Republic
On behalf of the Czech Republic
The Constitutional Court of the Czech Republic decided in plenary session on 4 July 2003. October 1994 on the draft
the head of the District Office in Trutnov to repeal generally binding decrees
the municipality of Jivka of 14 June March 1994 on the financing of the costs of children in kind,
attending elementary school,
The Decree of the Municipal Council of the municipality for the financing of the substantive Jivka
the costs of children who attend elementary school, of 14 July. March 1994
shall be repealed on the date of publication of this finding in the collection of laws.
4 March. 7.1994 was the Constitutional Court delivered a draft of the district
Office in Trutnov to repeal generally binding decrees, by day 14. 3.
1994 published by the Municipal Council in Jívce and which bears the name "Decree
The municipal authority in Jívce on the financing of the costs of children in kind, which
attending the primary school ".
The text of the decree is as follows:
The Municipal Council, the municipal authority in Jívce, issued on the basis of the law
the municipalities no 367/1990 Coll., as amended, and in the laws, regulations and
decrees, this generally binding Decree:
Municipal Office in Jívce ensures the operation of the primary school in Jívce in the range
1. to 4. vintage. From the school. the year 1994/95 in the range of 1. up to 4. vintage.
For the children who attend the 1. up to 4. year of the ELEMENTARY SCHOOL is therefore locally appropriate
the school. Parents who choose to give their child to another school, however,
must reckon with the fact that they bear the costs incurred by the municipality where the child
Article II. This order does not apply to children with permanent residence in the foreward.
Jivka. These children attend school for them because of the traffic, the better.
The Decree shall apply from the 1994/95 school year.
It was approved by the municipal authority in the Jívce of the day: March 7, 1994, approved by the
The municipal government: 14. March 1994 posted on the Municipal Board:
March 16, 1994, Captured from the Board: April 1, 1994.
In the opinion of the appellant, this decree that imposes on parents of children,
attending elementary school in other municipalities than their permanent
stay, the obligation to pay the related substantive costs, contrary to the
by the law. For this reason, the district authority said the letter of 21 April. 3. the 1994
the Mayor of the municipality, that Decree was issued without authorization in a generally binding
legislation and that contradicts the provisions of § 14 paragraph in particular. 2 of the Act
No. 564/1990 Coll. on State administration and self-government in education, as amended by
Act No. 190/1993 Coll. Under this provision is to cover the
financial base cost substantially bound to the municipality, in which the child has a permanent
stay and this obligation cannot be transmitted to the parents of children.
The draft also notes that the Municipal Council adopted at the meeting on
28.3. 1994 resolution, which remained in force, the decree in question
on the grounds that it considered good, addressing the lack of children in the
the local school. District Office in Trutnov therefore 20 March. 5. the 1994 suspended
within the meaning of the Act on municipalities the performance of this order, with the caveat that
If the Council fails to remedy, will be brought to the constitutional
of the Court. Whereas, in the legal time limit of 30 days to remedy the
There, he handed the head of the District Office proposal to repeal generally
binding decrees. The Constitutional Court notes that the proposal meets the requirements
prescribed by Act No. 182/1993 Coll., on the Constitutional Court.
The Municipal Council has expressed to the proposal on the basis of the constitutional challenges
of the Court. In the representation of 8. 8.1994, signed by the Mayor of the village, in the
basically repeated the arguments previously communicated to the District Office, IE. that
the Decree was issued in order to encourage parents to give children in the local
school and not to schools in surrounding communities. If the village was paid by the
non-investment costs for children who may attend the local school,
She would have the funds to actually twice and neúčelně would
increased costs on the municipal budget. The observations also contains
the requirement that the decision was made after oral proceedings, which they want to
For an opinion on the present issue also has been applied for
The Ministry of education, youth and sports. In the expression of this
Ministry of 7 July. 9.1994, States that the legislation does not provide for
the obligation that the learner must perform compulsory education in its place
regular stay and that citizens have at basic and secondary schools
the right to free education. Transfer the obligation payment of financial base
the cost to parents of children considered to be clear violations of the law No.
According to the article. paragraph 79. 3 of the Constitution, the local authorities may, on the basis of, and
within the limits of the law to issue legislation if they are to do so by law
empowered. In his article. paragraph 104. 3 then the Constitution authorizes the municipal
the City Government to issue generally binding decrees. These decrees, however,
must be in accordance with the laws and generally binding legal regulations
issued by the central State administration bodies for their implementation. Enumeration
the autonomous scope of municipalities included in the provisions of § 14 paragraph. 1 of the law
The CZECH NATIONAL COUNCIL No. 367/1990 Coll., on municipalities, as amended, contains
under the letter n) among other tasks in the field of education, with the exception of the performance
the State administration. The CZECH NATIONAL COUNCIL Act No. 564/1990 Coll. on State administration and self-government
in education, as amended by Act No 190/1993 Coll., section 2 provides that
Self-Government in education perform municipality and School Board. The performance of the Government
the third part is modified (§ 14-17) of the Act. For the assessment of the contested
generally binding decrees, it is then important to particular provisions of § 14 paragraph.
2, according to which a municipality with the approval of the school authority and shall be repealed;
pre-school establishments, primary schools and educational facilities serving them.
This provision was the law No. 190/1993 Coll. amended so that, if the
the child holds the school attendance in a school set up by different municipalities, agree with both
the village on the conditions of the implementation of compulsory schooling. In this case,
the municipality of residence of the child shall be borne by the municipality where the child attends school, her
non-capital costs attributable to the child. For the case under consideration is also
the essential provisions of § 14 paragraph. 3, according to which the municipality manages the basic
the school, in particular, that secures the investment expenditure and non-investment
costs in addition to salary, textbooks, educational AIDS and the needs of the
financed by the State, unless otherwise provided by law.
After examining the content of the decrees in question and other evidence submitted, the
and the opinions of the Constitutional Court stated that the municipality, with the will to apply Jivka
their self-governing responsibilities in the area of basic education, the Act released
tagged as a decree. This Decree is decided, the Municipal Council of the municipality
in the prescribed manner. After the page was in accordance with the procedural
UST. section 16 of the Act on municipalities, though the Decree, approved by the municipal
the Municipal Board on 14 July. 3. in 1994, was posted on the official notice board from 16.
3. in 1994 to 1. 4. the 1994 that pays for the school year 1994/95. From
the formal aspects of the decree is missing the signature of the Deputy Mayor or
Another Councilor, as prescribed by the ust. § 52 paragraph. 3 of the Act on municipalities (this
the fact, however, the proposal I can think of).
According to the article. paragraph 87. 1 (a) (b)) of the Constitution the Constitutional Court decides on the abolition
other legal regulations or their individual provisions. It must be
Therefore, the Act of law not by name, but such an act of State
Administration or Government, in which they are contained mandatory rules
the behavior of, i.e.. the Act of a normative nature. The Constitutional Court therefore dealt with the
First, the question of whether the Decree of the Municipal Assembly of such a nature
has. It is common ground that some of the provisions of the decree are rather a kind of
Notice that in the school year 1994/95 will be in the village works 1. up to
4. year of elementary school. At the same time, however, lays down the rules for the
the operation of the schools, which have a normative character. Primarily
is in conflict with applicable law introduced the concept of "locally
the appropriate school ". Such a concept of Act No. 29/1984 Coll. on the system of
primary and secondary schools (the School Act). Parents is then given by
information, which is not in accordance with the law, and that would not
different municipalities could not be realized, i.e.,. parents who decide to
put your child to another school "... must reckon with the fact that the benefits in kind shall be borne
the costs incurred by the municipality where the child attends school. If you would
such a practice was implemented, it would be inconsistent not only with Act No.
564/1990 Coll. (with ust. section 14 (2) of this law), but broken,
the provisions of section 4 of the Education Act, as amended, and in the
the text of the finding of the Constitutional Court of the CZECH REPUBLIC, published under no. 49/1994 Coll.
Such a practice is made for a particular group of citizens required
schooling partly pecuniary interest and would violate one of the basic
the rights guaranteed to citizens-the right to free education in the basic
schools (article 33, paragraph 2, of the Charter of fundamental rights and freedoms).
However, you can understand the reasons for which the Municipal Council to issue
the contested act, must be concluded that the funds, which the municipality
used in order to keep the school in the village, are illegal and unconstitutional.
Therefore, regardless of the fact that not all the provisions of the decree can be
considered the provisions of the normative nature of the Constitutional Court
the conclusion that in the interests of legal certainty, it is necessary to repeal a decree throughout
The President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.