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Date of publication of this finding in the journal of laws shall be repealed provisions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