In The Matter Of The Application For Revocation Is Generally Binding Decrees Of The Municipality Tehov

Original Language Title: ve věci návrhu na zrušení obecně závazné vyhlášky obce Tehov

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=42892&nr=80~2F1995~20Sb.&ft=txt

80/1995 Sb.



FIND



The Constitutional Court of the Czech Republic



On behalf of the United States



The Constitutional Court of the Czech Republic decided in plenary on 11 March. April 1995 on

the design of the head of the district authority in Benešov on cancellation of generally binding

Ordinance of the municipality Tehov on local fees



as follows:



Date of publication of this finding in the journal of laws shall be repealed provisions

contained in the article. 3 generally binding decrees of the municipality Tehov on local

the fees received by the municipal government in Tehově on 5 December. March

1991, as amended by the generally binding decrees of the municipality Tehov of 26 March. January

1993, and expressed by the term "Forest Park".



The remainder of the proposal is rejected.



Justification



On 21 February 2006. October 1994, the Constitutional Court of the Czech Republic received a proposal from the head of the

District Office in benesov on the repeal of the generally binding decrees of the village

Tehov on local charges, received the municipal government in Tehově

on 5 July 2004. March 1991, as amended by the generally binding decrees of the municipality Tehov dated

January 26, 1993. The text of the decree is as follows:



"References in the Tehově approved on 26 April. January 1993 change and

supplements to generally binding Decree on local fees, resulting

of Act No. 337/1992 Coll. and Act No 565/1990 Coll., on

local fees. The decree is issued according to the provisions. Cust. No.

565/1990 Coll., as amended by the changes and additions, and Act No. 418/1992 Coll., on the

municipalities, in full, as is apparent from the amendments to the Act. No 367/1990

SB.



The original Decree, effective from 20. March 1991, remains in force in the

the text of the amendments contained in the Decree approved on 26 April. January

1993.



Section I.



Basic provisions



Article. 1



The municipality Tehov selects these fees:



and fees of the dogs,)



b) fee for the use of public ground,



c) fee from the advertising device



(d) admission fee,)



e) fee from accommodation in recreational and educational

devices,



f) fee from the sale of alcoholic beverages and tobacco products,



g) the fee for a permit for a motor vehicle entrance into selected locations

in the village.



Section II.



Charge of the dogs



Article. 2



Charge of the dogs charged a natural person and a legal entity that is

the owner of the dog, the village in the place of their permanent residence (Cust.

No. 135/1982 Coll.).



Charge of the dogs out of dogs aged 6 months, except dogs taken

the accompanying persons or the protection of the blind, helpless and holders

of a ZTP/P (particularly badly affected with a guide).



The rate of the fee per year: for the first dog-$ 30.0--for a second and

each additional dog € 30.0--.



The owner of the dog shall be obliged to submit an oral report to the permanent service. the fact that the

He became the owner of the dog, even if that still did not produce fee

duty. The owner of the dog shall pay the fee without the assessment to

March 31 of each year. If a fee obligation during the year,

you have to pay a fee of the dogs from the first day of the month following the date on which

fee obligation arose. Termination of the fee obligation, extinguishes

the obligation to pay the fee of the dogs to the expiry of the month in which this

the fact the taxpayer reported the village. Detected the excess returns, if the

more than £ 20.0--.



Section III.



Fee for the use of public spaces



Article. 3



Fee for the use of public spaces for special

the use of public spaces. This means the location of the device to the

the provision of services, the location of landfills, reserving a permanent parking

space, the use of this space for cultural and sporting events, and

the need of making film and television works. Of events organised at

public area without a ticket or whose proceeds is determined by the

charitable and public benefit purposes, the fee does not apply. Public

area under this Ordinance are, in particular, all the places in the village square,

the municipal communication, road, course, public green areas, forest park, public official.

Space Vol stp. 110, stp. 117.



In doubt is the Municipal Council shall be entitled to decide, whether in the

case of dispute, it is a public space.



Fee for the use of public ground is true natural or legal

people who use public space in this manner.



If the same part of public ground, several users,

responsible for the payment of the whole fee, jointly and severally. The municipality

payment of the fee may save any of them.



Article. 4



The fee shall be collected as from the date when the public began to use

the area, until the day when the taxpayer has reported that the use of Municipal Council

the public space is over, the device was removed, and the

the area indicated in the status of the communication and receipt (removed scaffolding,

taken away material, cancelled stand, zahlazen excavation, planted foliage, etc.).



From charges for the use of public ground, are exempt

the organizers of the events without the entrance fee, or actions whose proceeds is determined by the

charitable and public benefit purposes and exempt disability

the persons to whom it was allocated a permanent parking space to the public.

open space.



Article. 5



The rate of the fee shall be:



and-for the location of the stands, desks, kiosks for sales purposes, including

handling space, goods, merchandise £ 2.0-/m2/den



b-for the use of public ground to the location of the device, to the

the location of the landfill construction material in the construction of residential house (s), the

dump of all kinds that have not been allowed £ 10.0-/m2/den for the physical

and foreign legal persons (with no authorization of the municipality). For public use

the area on the authorization of the municipality is the rate of Eur 5.0--/m2/den. For the use of

public ground natural and legal persons engaged in

the permitted activity, permanently residing in the municipality, the rate of Eur 2.0--/m2/den.



Article. 6



Fee is due within 15 days of delivery of the decision on the assessment of the

the fee for the account of the village.



Section IV.



The charge of advertising equipment



Article. 7



The charge of advertising device is selected for the written, pictorial, light

and sound notifications, located or operating on public

spaces in the public rooms.



The charge of advertising devices apply natural or legal person,

that the notifications referred to in paragraph 1. 1 ranked or operates.



Public space in the village is addressed in the article. 3 of this order. Publicly

accessible rooms in the village are for example: school building, building.

the Armory, the building of the stp. dining room 117, RA, building on the No.

111/stp. 116/1, the building housing the waiting room, the building of the village. In

case of doubt, the local authority is entitled to decide whether, in the contested

If it is a publicly accessible rooms in the village.



Article. 8



From the charge from the advertising facilities are exempt operators of ads

followers of charitable and other humanitarian objectives.



A fee of ads does not apply, by law the location of markings

the scope of activities on its premises and for the location of the custom

Ad device inside their establishments. The charge of advertising

the device is not paying for political advertising device and

election party for the election campaign. Further advertising device

followers of charitable and other humanitarian objectives, where appropriate, of the other

exemption in accordance with local conditions.



Article. 9



The rate of the fee shall be:



The rate of the fee is 3% of the price for the implementation of the ads if the ad is

carried out without consideration, or if you cannot demonstrate its price, the basis for

the determination of price in the place of the usual fee. Fee is payable annually to the

30 September of the calendar year.



Section V.



Fee on admission



Article. 10



The admission fee is levied on admission to cultural, sporting and

sales events and actions of a similar nature. Of the action of which all proceeds

It is intended for charitable purposes and public benefit, with a fee

do not apply.



Admission fee applies the physical and legal persons that action

It hosts.



The rate of admission fee is 10% of the aggregate amount of the selected

admission. The municipality may, in agreement with the taxpayer a fee set

the annual flat-rate amount.



Fee is due within 15 days from the date of the arrangement of the events.



Section VI.



The charge of the accommodation capacity in the recreational and education facilities



Article. 11



The charge of the accommodation capacity in the recreational and education facilities

applies the legal entity that owns, or that they have

right management and individuals that do business according to the specific

legislation (Act No. 106/1990 Coll., on citizens ' private business).



Article. 12



The rate of the charge of the accommodation capacity in the recreational and educational

devices shall be $ 2.0--for each bed and day regardless of its

usage.



The fee shall be determined by multiplying the number of beds in the building by status to 1.

January of each year at the rate of the fee ($ 2.0) and the number of days in a year.



The total number of beds shall not include beds, addressed to property

workforce involved in the operation of the object.



Article. 13



The charge of the accommodation capacity in the recreational and education facilities

It is payable in a lump sum, and until 31 December 2007. July of each year. The taxpayer is

required to pay the fee without assessment.



Section VII.



Fee from the sale of alcoholic beverages and tobacco products




Article. 14



Fee from the sale of alcoholic beverages (alcoholic beverages within the meaning of

the law on the local charges are spirits, spirits, wine, beer, and

other beverages that contain more than 0.75 percent alcohol by volume)

and tobacco products applies natural and legal persons engaged in

Restaurant, café, accommodation or other hospitality services, in

which sell alcoholic beverages and tobacco products.



Article. 15



The rate of the fee is 5% of the selling price of alcoholic beverages and

tobacco products. Fee from the sale of alcoholic beverages and

manufactured tobacco is payable without assessment quarterly, no later than

15. the following month, after the end of the calendar quarter.



The taxpayer is required to keep the daily implementation of the sales of these products.



Section VIII.



The fee for a permit for a motor vehicle entrance into selected locations



The fee for a permit to the entrance of a motor vehicle in the village i

settlements in all places where it is otherwise the entrance prohibited traffic sign.

"Selected place" is, for example, kat. p. no 1569/1. "Forest Park"-

municipal forest.



Article. 16



The fee for a permit for a motor vehicle entrance into selected locations

apply natural or legal person that has been issued a permit to the entrance

motor vehicle in selected places. Charge of the natural person

having a permanent residence or owning a property in the selected site, the person

in them, the spouses of these people and their children. Furthermore, persons who

the location that you are taking property for economic activities of the municipality or

persons who are holders of a ZTP and their guide.



Article. 17



The rate of the fee for a permit to a motor vehicle entrance into selected

places is 20.0--/day.



Section IX.



Common and final provisions



Article. 18



If fees are not paid in due time or (paid) in the correct amount,

fee payment amount of the municipality assessment and may increase in time the unpaid

(evasion) charges of up to 50%. Assessed fees are rounded to the

the whole of the Crown on top.



Article. 19



Violation of the obligations laid down by this decree can affect as

offence under Act No. 200/1990 Coll. on offences.



Article. 20



Administration fees referred to in this Decree shall be exercised by the municipality Tehov and when

proceedings in matters of taxes and fees the process according to Act No. 337/1992

Coll. municipality can to reduce or eliminate the hardness in the individual

cases, reduce or waive the fees.



Article. 21



Fees cannot be applied, or recover after the expiration of three years from the end of

the calendar year in which the municipality learned of the fact, that is

the subject of the charges. From the end of the calendar year in which the taxpayer

from the village learned of the operation carried out to establish or enforce fees,

running a new three-year period.



Article. 22



Fees cannot be applied or enforced, it shall expire from the end of the calendar

year in which the occurrence of the event which is the subject of the charge, 10 years.



Article. 23



The full text of the Ordinance to invalidate the original Decree approved 5. 3.1991,

remains in force, as amended by the changes and additions (see article 1-24 complete

the text of the Decree, approved on 26 April. January 1993).



Article. 24



The others are hereby repealed the Decree on local fees issued after 20. 3.

1991.



Article. 25



This Decree shall take effect 15. on the day after posting, i.e.. 11.2. 1993.



The district authority in benešov, by decision of 20 April 2004. September 1994 no.

KP/199/1994 suspended pursuant to § 62 para. 1 of Act No. 367/1990 Coll., on

as amended, the performance of the said Decree.



In its application filed pursuant to § 64 para. 3 of Act No. 182/1993 Coll.

Head of the district authority in Benešov notes that the contested Decree

was released in individual municipalities within the meaning of § 14 para. 1 (b).

h) Act No. 367/1990 Coll., on municipalities, as amended,

While the article claims a contradiction 3 cited the decree to the Act No. 564/1990

Coll. on local fees, as subsequently amended. Referred to

the appellant sees the contradiction in the fact that the public

the Decree also orders the forest park area, for which there is no more

specification. According to the findings of the district authority in Benešov in the Decree, however,

Habitat for the forest park includes forest land, which, in the opinion

the applicant cannot be regarded as public spaces. In addition, the proposal

points out the inconsistency with Act No. 564/1990 Coll., on local charges,

as amended, as well as for other provisions, containing

the concept of public spaces (the rapporteur lists the sections I, IV, VI,

VII.), and in the remedies proposed to cancel the entire Ordinance.



In the expression of the Mayor of Slovakia has given the opinion that challenged

the decree is not contrary to the law on local charges. Argumentation

contained in the above opinion represents a retrospective of the dispute of the village

Slovakia and District Office in benešov, qualifications of the land no parc.

1569/56 in the cadastral territory of Slovakia.



In proceedings for annulment of the legislation is the Constitutional Court of the Czech Republic

pursuant to § 68 para. 2 Act No. 182/1993 Coll. must also examine whether the

legislation issued by the constitutionally prescribed way. From this

because of the Constitutional Court of the Czech Republic has requested from the municipal

the Municipal Council in Tehově send documents, certifying reception

the contested Decree (IE. the minutes of the Municipal Council,

confirming the necessary quorum and the required majority), as well as its proper

publication in the sense of Act No. 367/1990 Coll., on municipalities, as amended by

amended. Those facts were confirmed by the minutes of the

meetings of the College in Tehově, held on 5 December. March 1991

and on 26 April. January 1993, certifying law required quorum

the majority, as well as the confirmation of posting the decrees in question.



The Constitutional Court of the Czech Republic in the proceedings on the revocation of laws and other

legislation (therefore also in proceedings for cancellation of legal regulation of the municipality)

It assesses the contents of the Act or other legislation according to the aspects

contained in the provisions of § 68 enough. 2 Act No. 182/1993 Coll., which in

generally binding decrees of the village include the competences (legal warrant) and

compliance with the laws of a higher level of legal force.



Under the provisions of section 15 of Act No. 564/1990 Coll., on local charges in

as amended, upon the adoption of generally binding decrees of

local fees, governing the fee for the use of the public also

the area is also required to specify the references of the place

that are in the village of public space. The municipality is bound by the legal

definition of the concept of public ground, contained in section 4, paragraph 4. 2 of the Act

No 565/1990 Coll., on local fees, as subsequently amended.



Article. 3 generally binding decrees of the municipality Tehov, on local charges, one of the

public area also "Forest Park".



That concept is not defined in the Ordinance closer or intended designation

plots, which are considered in forest park.



The design of the head of the district authority in Benešov, as well as the observations of the

the Mayor of the municipality Tehov, it follows that under article forest park. 3 cited

the Decree means the parc. No 1569/56 cat. ú. Slovakia. According to the statement from the

land register the cadastral registry in benešov of 19 May.

November 1993 is referred to the land as forest. District

authority in benešov was submitted to the decision of the Ministry of

forestry and wood processing industry in the Czech Republic from

27 June 2002. April 1990 No. 826/OLH/90/274, which was established the legal

the nature of the land, situated in the parc. No 1569/56 cat. ú. Slovakia.

According to § 6 of the law No 96/1977 Col., on forestry and State administration

forestry, was referred to the land as forest

destination for the les in the vicinity of the hospital equipment preventive care [section 23

paragraph. 4 of law No. 61/1977 Coll., section 1 (1). 2 (a). (b)) Decree No. 13/1977

SB.].



Assessment of the legal nature of the land became part of the

the decision of the regional court in Prague from January 3. March 1994 no. 20 Ca

5/93-42 for annulment of decision in benešov District Office of 16 June.

July 1993 no Fin 754/93, which has changed the decision of the municipality

Tehov, payment Bill No. 4/1993 of 27 June. May 1993. After the carried out

the findings of the District Court in Prague to the question noted that

plot # parc. 1569/56 in the cat. OJ Tehov is a forest, according to the

characteristics of a kind land, conducted in all legally binding

documents. At the same time concluded, according to which an

enumeration of places that are regarded as public spaces (article 4, paragraph 2, of the law on

local charges), it is clear that public space is not les for

of the village.



The district authority in benešov was in addition to the Constitutional Court of the Czech

the Republic submitted to the opinion of the Ministry of the environment of the Czech

the Republic of 1. September 1994 no. 1922/80319/94, in which the

expressed the view to the possibility of the inclusion of dismissive of the forests between the special purpose

public spaces within the meaning of Act No. 564/1990 Coll., on local

fees, as subsequently amended. The opinion on that

conclusion on the basis of the interpretation of the provisions of § 4 para. 2 of the law on

local fees, which defines public spaces by listing


examples that even remotely resembling the character in question

land, i.e. Les, since all the other areas are under Act No.

344/1992 Coll., on the land register of the Czech Republic.



Non-exhaustive list of cases, which is defined in section 4, paragraph 4. 2 of the Act

No 565/1990 Coll., on local fees, as amended,

includes the concepts of ' parks and public green areas ". The contents of these concepts is defined

in the annex to Decree No. 127/1993 Coll., which "green buildings" (to which the

means an ornamental garden, street and settlement greenery) and "other public

Green "(which means the parks and other areas of functional and recreational green)

included in the framework of a broader concept of "other areas" [article 2, paragraph 1 (b))

Act No. 344/1992].



In the contested Decree contained the term "Forest Park" is a concept whose content

is not defined in the legal order; that concept is not included neither in law No.

61/1977 Col., on forests, as amended, or Act No.

96/1977 Col., on forestry and the State administration of forestry

the economy, nor in the Act No. 344/1992 Coll., on the real estate register,

or in the Decree No. 126/1993 Coll., and finally even in the Act No 114/1992

Coll., on nature and landscape protection.



The term "Forest Park" allows, therefore, two interpretations.



The first is understanding of this concept in the importance of the park or other functional areas

and recreational green space, and therefore, the importance of other areas (not in meaning

forest land). According to this interpretation is not possible to land in

land designated as forest land, subsumovat under the

public space-forest park. For this reason, it is necessary to this

interpretation of the excluded.



The other interpretation in the Decree the municipality Tehov contained the term "Forest Park"

is the "special-purpose forest", in accordance with the annex to Decree No. 127/1993 Coll., which

the type species is also "les special purpose" under § 23 para. 4 of law No.

61/1977 Coll., as amended, and in terms of § 4 para.

2 of the Act on local charges would be more space available

to everyone without restrictions and located in the village.



This interpretation, however, is not acceptable. The reason for this is the fact

pursuant to Act No. 96/1977 Col., on forestry and State administration

the forestry sector, in conjunction with § 20 para. 1 and annexes of the law

No. 425/1990 Coll., on district offices, modify their scope and

some of the other related measures, as amended

the laws of the State Forestry Administration, does not fall within a separate or

into by the municipality, but falls within the scope of the authorities of the State

Administration, and its mode of operation is governed by the said Act No. 96/1977 Sb.

as in the case of the Constitutional Court of the Czech Republic on the abolition of article. (III)

generally binding decrees of local municipalities Vraz user charge

public spaces, SP. zn. PL. ÚS 19/94, it must be stated that

interpretation of the concept of public ground, contained in section 4, paragraph 4. 2

the law on local charges, must respect the separate range, respectively.

workers by the municipality. The contested provisions of article. 3 generally binding

Ordinance of the municipality Tehov on local charges, is therefore contrary to section 13 and

14 and § 21 of Act No. 367/1990 Coll., on municipalities, as amended

regulations.



According to the article. 87 para. 1 (b). and the Constitution of the United States) shall be decided by the constitutional

the Court of the cancellation not only of laws and other legislation, but also

their individual provisions. The provisions must be understood

any part of the text of the legislation with a normative content. It is the

Therefore, an expression containing any language resources, whose purpose is to

representation of legal standards or one of the components of its factual

(e.g., obligations or sanctions). In this case, the expression

"Forest Park" expresses a range of the merits of the law indicates

one of the possible designátů of the concept of "public space", with the

using joins, involving the creation of legal obligations (Decree to pay

local charge).



Application for annulment of other parts of the referred Ordinance (sections I, IV, VI,

VII.) was dismissed, since they contained the notion of public

Likewise, the statement concerning the article. 3, getting into

pursuant to Act No. 367/1990 Coll., as amended.



In its proposal, the applicant the remedies demanded the cancellation of the Decree.

Since it did not substantiate the unconstitutionality of outlawry, respectively, of its

individual provisions, and because in the proceedings has not been demonstrated no

the link between the provision that was repealed and others

the provisions of the contested order, the proposal was dismissed as to the remainder.



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.