On The Proposal To Repeal Certain Provisions Of The Railway Act

Original Language Title: ve věci návrhu na zrušení některých ustanovení zákona o drahách

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=55427&nr=83~2F2003~20Sb.&ft=txt

83/2003 Coll.
Finding


Constitutional Court
On behalf of the Czech Republic


The Constitutional Court ruled February 19, 2003 in plenary session on the proposal of deputies
Chamber of Deputies of the Parliament of the Czech Republic and a group of senators
Czech Senate to repeal these provisions
Law no. 77/2002 Coll. a stock of Czech Railways, state
organization railway Infrastructure Administration and amending Act.
266/1994 Coll., on Railways, as amended, and Act no.
77/1997 Coll. a state enterprise, as amended:

After the semicolon in § 4 para. 1, as amended, "the government in a vote of approval
determining the date on which it is determined the carrying value of non-monetary
contribution to the stock of Czech Railways (hereinafter" the appointed day ")"

§ 4, paragraph. 4, second sentence,

After the semicolon in § 5 para. 2, as "non-cash valuation experts
deposit is required,"

§ 6 paragraph. 1 and 2, including footnote no. 7)

§ 7 paragraph. 1 and 2

§ 8 paragraph. 4

§ 38 par. 3,

Part of the sentence in § 42 para. 1 as follows: "With the exception of Title II and Title III and
Part III, which come into effect on formation of joint stock companies
Czech Railways'

§ 42 para. 2

Annex no. 1 (labeled "property constituting the railway transport
way")
as follows:

First Provisions after the semicolon in § 4 para. 1, as amended: "Government
when consent designate a date by which the book value down
non-monetary contribution to the stock of Czech Railways (hereinafter
'set day ")," § 4 para. 4, second sentence, after the semicolon in §
5, paragraph. 2, as "cash investment experts is required,"
§ 8 paragraph. 4, § 38 paragraph . 3 and Annex 1 of Law no. 77/2002 Coll., on
stock of Czech Railways, state organization railway Infrastructure Administration
road and amending Act no. 266/1994 Coll., on Railways, as amended | || regulations, and Act no. 77/1997 Coll., on state enterprise, as amended
, the day of 31 October 2003 repealed.

Second The remainder of the proposal is rejected.
Reason


I.

Constitutional Court received on 22 April 2002 proposal of 42 deputies
Chamber of Deputies of the Parliament of the Czech Republic and a group of 21 senators
Czech Senate to repeal specifically designated
provisions of Law no. 77/2002 Coll. on the Joint stock company Czech Railways,
state organization railway Infrastructure Administration and amending Act.
266/1994 Coll., on Railways, as amended, and Act no. 77/1997 Coll
. on state enterprises, as amended.

Petitioners introduction recapitulates the object and purpose of the Act no. 77/2002 Coll., Which
is to transform the state organization Czech Railways joint stock company
self-employed in the transport market in the Czech Republic and Europe.
The mission of this trading company is to fulfill the role
national railway carrier, which ensures the functioning of the railway system
throughout the state, while at the same time assumed exercise
and other railway operators, according to the explanatory memorandum to the given || | Testament, the "appropriate substantive and geographical segments of the market."
In order to achieve this objective, in addition to the law of Czech Railways
also establishes the state organization Railway Infrastructure Administration, which has
manage particular state property, which is the date of incorporation of Czech Railways
to farm state organization Czech Railways and
forming the railway routes and is set out in Annex no. 1
law, and the buildings of railway stations, land in their district
and information system Act are inserted into the capital || | stock of Czech Railways. Operation of the railway
routes and maintain its operability has yet to cost the state
Railway Infrastructure Administration to ensure through
Czech Railways At the same time, the newly formed state organization to decommission liabilities
state organization Czech Railways.

Based on the alleged specificity of the newly established position
stock of Czech Railways, as well as the extent of state property, with whom he previously farmed
state organization Czech Railways and to be inserted
into joint stock companies, especially in law the provisions of § 4-7 sets

Different conditions for the establishment and creation of trading companies
compared with the general rules contained in the Commercial Code.
Parallel, creates a special legal treatment effects in property
rights, especially the rights of ownership to the property, which they have to go
newly established trading company, as well as the state organization
Railway Infrastructure Administration, and it is completely different from the general legal
regulation contained in the Act no. 265/1992 Coll., on the registration of ownership and other property
property rights, as amended.
Applicants in the recapitulation of the basic aims and purposes of the Act
point, finally, of the intention expressed in the explanatory memorandum submitted by the petitioner
Act, according to which it is the task of the state to create a "harmonized
market environment in which the carriers of different traffic types
apply on the basis of a level playing field of competition. "

The content analysis of the Act no. 77/2002 Coll.
petitioners critically assesses some of its parts. They argue in particular that the law creates a completely lopsided
model in which the state organization manages the transport route
but the costs associated with the provision of its operability paid
trading company, which uses it for his own business.
Way of establishment of Czech Railways and the method of valuation of assets at
embodied in the Act no. 77/2002 Coll., Which establishes the design is different from the general design
contained in the Commercial Code, the petitioners
It means its indirect amendment. An unprecedented consider further derogation
§ 42 par. 2 of the Act, according to which the Act no.
9/1993 Coll., On Czech Railways and its amendment no. 212/1993 Coll., || | abolished on the date of incorporation of Czech Railways, which the legislator
repeal the legislation is dependent on the communication published in the Official Gazette
. Division of property state organization Czech Railways on both
successor organization by the petitioners, based on vague criteria
terms of their subject matter and purpose limitation. In this context
state that only argument a contrario be the Annex.
1 to Act no. 77/2002 Coll. conclude that the property of Czech Railways, and.
s., will be transferred to station buildings and land and access roads to them.
Further in its possession are according to Annex no. 1 of the Act also go
land located in the area of ​​stations and depots for rail vehicles
contrast, passages, platforms, canopies, ramps, paved areas, || | fencing and railings, as well as railway level crossings and land
or circuit paths become the property of the railway Infrastructure Administration,
they are listed in Annex no. 1 among the list of assets forming the railway infrastructure
.

According to § 19 para. 1 of Law no. 77/2002 Coll. the day of the
of Czech Railways establishing a state organization
Railway Infrastructure as a separate legal entity, with its origins
entered in the commercial register, registration but has
declaratory character (§ 19 paragraph. 3 of the Act).
State organization Railway Infrastructure Administration, which operate according to the provisions
§ 20 paragraph. 1 of Law no. 77/2002 Coll. State property.
The petitioners in this regard on the fact that the law in this organization
does not contain any provisions that would regulate her way
management of state property, which her according to § 20 para. 1 and § 38 paragraph .
2 of Law no. 77/2002 Coll. passes. In their opinion according to § 54 para. 1
Act no. 219/2000 Coll., On the property of the Czech Republic and its representation in
legal relations, as amended by Act no. 501/2001 Coll., Are in fact State | || organizations established by special legislation which are businesses
under § 2 of the Commercial Code, excluded from the scope of the Act no.
219/2000 Coll., when the management of state organizations that are
entrepreneurs, with a governed by specific legislation.
Given the absence of specific legislation, and is convinced that the petitioners
management of state organization Railway Infrastructure Administration with
state property finds itself in complete legal vacuum.

Petitioners in the provisions after the semicolon in § 4 para. 1
wording: "Government in consent will determine the date on which
down the carrying value of non-monetary contribution to the stock of Czech Railways

(Hereinafter the "appointed day") ", then after the semicolon in § 5.
2, as" cash investment experts is required, "§ 6
paragraph. 1 and 2, including footnote no. 7), § 7 para. 1 and 2 and § 8
par. 4 Act no. 77/2002 Coll., counter their contradiction with the principle of equality
according to Art. 1 of the Charter of fundamental rights and freedoms (
"Charter"), which according to them is determined to be unfounded and unjustified
advantage of Czech Railways before all other subjects
private law who are entrepreneurs and established according to the Commercial Code
legal form of the company. This inequality is given
different rules and conditions for their establishment, which in the view of the petitioners
incompatible with the principle of protecting the rights of third parties.
This circumstance is seen in the fact that no public offer of shares , approval
foundation deeds, for which he requires notarial (
§ 4 par. 4), the memorandum will include determining
non-monetary contribution, the valuation expert is not required (§ 5 para. 2) ,
and the memorandum of association shall be determined only carrying value of non-monetary contribution
(§ 4 para. 1), the Czech Railways joint stock company created
1 day. January of the calendar year following the calendar year in which
was founded, the company registration process will only
declaratory nature (§ 6 para. 1), as is seen in the fact that
situation the state assets to the company passes on the day of creation, while
transfer ownership of the property shall be entered in the cadastre
by a deed (§ 7 para. 1), the State property
contribution to the basic capital of the company
deemed paid the devolution of property by law (§ 7 para. 2) arises then
private entity that is not subject to administrative or judicial
control at its inception and which will be stated fictitious capital as basic
to the amount of its value, and in terms of its destination.

Purpose Commercial Code set out the formal and procedural conditions
emergence of trading companies petitioners see in
reviewability procedures and the establishment of the company, as well as
fair value of the share capital, which in their opinion is very important
economic impact on the role of business
company founded to market and other entities with such
companies enter into legal relations. Especially in this context
emphasized the importance of an independent valuation of in-kind contribution, even
due to European standards.

The inequality regulation contained in § 8 par. 4 of the Act no. 77/2002 Coll.
is pointed out with regard to the obligation of carriers other than equity
Czech Railways apply for a license to operate rail transport
Rail Administrative Authority (§ 24 of Act no. 266/1994 Coll., on Railways, as amended | || amended), as well as other obligations of the applicant (§ 11, 12 and 14a
Railway Act). This inequality would petitioners were
acceptable in a situation where the Czech Railways would set up a special
law as a public entity. Alert while on the fact that
according to previous arrangements, however, Czech Railways had to apply for a license to operate
transport on regional rail systems, as well as
official authorization for the operation of regional rail, which according to the existing regulation when it comes to
private entity no longer valid.
Discriminate against other operators of regional rail transport then the petitioner sees the exemption
Czech Railways from notification of spare capacity
Infrastructure according to § 23 para. 1 of the Railway Act, resulting in a joint stock company
Czech Railways can spare capacity transport route
preferentially occupy itself and as a license pursuant to § 25 point. d)
Railway Act is subject to the condition that the desired
rail transportation is available spare capacity transport route, the other carriers
prevent the granting of licenses rail administration authority. In this context
petitioners question the real possibility
rail administrative authority to decide any dispute, since this authority would have the assessment of the case
rely on information provided by the joint stock company Czech Railways
.

The petitioners alleged inequality in favor argue and opinion
Directorate-General for Energy and Transport of the European Commission dated

17th in May 2001, under which, given the necessary capacity
rail market, according to Act no. 77/2002 Coll.
determined by Czech Railways and new entrants can only apply for remaining free
capacity, the consequence of this is a state where the capacity is allocated
non-discriminatory manner and which leads to the application of the privileged
rights. For those was the opinion recommended that Czech Railways
also had to apply for a license.

Even with regard to the case law of the Constitutional Court to interpret the constitutional principle of equality
The petitioner states that the apparent baselessness privileged conditions
establishment and creation
stock of Czech Railways compared to the general legislation, and the exemption || | this private entity regime of the Railways Act regarding
granting of official permission to operate nationwide and regional tracks
a license to operate rail transport, are a manifestation of arbitrariness
legislature, violates the principle of equality under Art. 1 Charter, as well as
dotčením right to conduct business under Art. 26 of the Charter for those carriers who
decide to operate the rail service after having formed joint stock company
Czech Railways.

For the provisions of § 8 par. 4 and Annex no. 1 of Law no. 77/2002 Coll.
petitioners argue their conflict with Art. 3. 1 and Art. 4, paragraph. 3 of the Charter and Article
. 26 of the International Covenant on Civil and Political Rights (hereinafter
"Covenant") and Art. 14 of European Convention on Human Rights
(hereinafter the "Convention").

With reference to the provisions of § 20 para. 1 point. a) and § 4 para. 2 of Law no.
77/2002 Coll., according to which the state organization Railway Infrastructure Administration
routes manages state property, which is the date of incorporation of Czech Railways
to farm state Czech Railways organization, while
regards in particular the property constituting the railway infrastructure and
which is set out in Annex no. 1 of the law, and this
assets apply to joint stock company Czech Railways || | petitioners allege difference in those provisions contained
definition of "transit route" and the definition set out in Regulation Commission
EEC no. 2598/70 dated 18 December 1970 (Annex a), which determines
items to be included in the railway infrastructure between
which also include "access routes for passengers and goods, including access by road
" and "buildings used by the infrastructure department, including the portion attributable to
devices for fare collection "," paths for quadrupeds and
pedestrians'. On the sidelines of this conflict, the appellants submit that according to the practice
state organization Czech Railways and its internal decisions were
date these items are regarded as part of the railway infrastructure.

The difference, ie. Exemption of such part of the transport
ways, such as in particular the station building with land and access roads
to them, as well as land located in the area of ​​stations and depots for rolling
vehicles from the state, respectively.
operator of ownership Infrastructure (Railway Infrastructure Administration), in the opinion of the petitioners
not only contrary to EU law, but also contrary to the above
marked fundamental rights and freedoms. By thus defined Estate
becomes the property of Czech Railways, there is
according to their beliefs to discriminate against other carriers who
happen to Czech Railways, as addicts. It is also in this context
disputed that the insertion of these assets into the hands
private entity without any disposition restrictions may
result in the transfer of the assets of entities not carrying
rail transport, thereby constraining the functioning of railway transport
in the Czech Republic. In this context also draw attention to the fact that the law does not
Railways rail operator obliged to allow carriers to use
buildings it owns and similarly Act no. 77/2002 Coll.
does not regulate relations between Czech Railways and other carriers.
For possible solutions to this problem, which the petitioners were
be regarded as discriminatory and consistent with the constitutional order, would
maintaining state ownership of the property to which it is attached
performance management Railway Administration Infrastructure.

In terms outlined as follows statutory regulation petitioner sees violations

Constitutional principle of equality in the absence of a reasonable and objective criteria
for exemption from the regime of the Railway Act for the company
Czech Railways, as well as exemption from the nature of things arising
part of the railway infrastructure and, finally, to go into these things
owned exclusively by one carrier.

U § 6 para. 1 and 2, § 7 para. 1 and 2, § 38 par. 3, § 42 para.
1 and 2 and Annex no. 1 of Law no. 77/2002 Coll. The petitioners also argue
their conflict with Art. 1 of the Constitution.

This contradiction sees a failure to comply with the safeguards associated with the derivative concept
rule of law and the principle of legal certainty, which puts certain requirements on
legislation. The petitioners ranks among them inadmissible indirect
amended laws, especially in form of a code of law.
Contested statutory provisions, particularly § 6 of Act no. 77/2002 Coll., Stipulating special
mechanism of incorporation of Czech Railways, according to deny their beliefs
principle of formal publicity material and the commercial register as a public
instrument. For a similar exemption shall also be considered
announcement of formation of a company in the Official Gazette
Communication Ministry, as well as the treatment of devolution of state property on both
successor company, in this case, particularly with regard to the vague definition of the property
. Violation of the principle of legal certainty fro
petitioners further indication of some buildings in the Annex no. 1 of Law no. 77/2002 Coll
. in terms of components of assets comprising railway
way, but that in accordance with § 118 paragraph. 1 of the Civil Code are things
and therefore can not be subject to legal relationships (eg. land "in the circuit path
" at the date of transfer of property to state ownership
stock of Czech Railways will be separated further passages, platforms,
shelters that are part of other buildings). For violations of legal certainty
finally regarded as almost identical to the definition of the business in both
successor organizations (§ 38 par. 1 of Law no. 77/2002 Coll.), As well as special treatment
delegation to central government authority
for resolving disputes in matters of transfer of rights and obligations among the successor
entities in Spain argues, the withdrawal of the judicial protection of individual rights
private, and finally adjusting the effective date, respectively. derogation in § 42
Law no. 77/2002 Coll.

II.

According to § 42 para. 3 and § 69 par. 1 of Act no. 182/1993 Coll., On the Constitutional Court
, as amended, Constitutional Court sent the proposal
Chamber of Deputies of the Parliament of the Czech Republic. In its observations
dated August 30, 2002 Chairman of the Chamber of Deputies of the Parliament of the Czech Republic Dr.
. Lubomir Zaoralek introduction states that the approval of Act no. 77/2002 Coll
. was in the Czech legal order established at an earlier concept
adjust the position of national railway carrier
special law (see Law no. 68/1989 Coll., on state organization Czechoslovak State
Railways and Law no. 9/1993 Coll., on Czech Railways, as amended by Act no.
213/1993 Sb.). The reason for this approach sees the merits
special treatment, particularly in relation to the Commercial Code.

In relation to the alleged contravention § 4 para. 1 and 4, § 5 para. 2, § 6.
1 and § 7 para. 1 and 2 of Law no. 77/2002 Coll. with Art. 1 of the Charter in
statement notes that the purpose of this constitutional provision is
protection of natural and inalienable rights of man, or human beings
therefore only applies to individuals and not against persons || | legal. All designated provisions of Law no. 77/2002 Coll. the only concern while
establishment and creation of the future of Czech Railways
rights as individual human beings in the same form as it protects Art. 1 of the Charter, according
party therefore has no connection.

If § 8 par. 4 of the Act no. 77/2002 Coll. Temporary favors
Czech Railways before other entrepreneurs
carry on the track and rail transport on the railway tracks, it can not be
however, in the opinion of the Chairman of the Chamber of Deputies considered as standing in conflict with Article
. 1 of the Charter , with reference to Art. 26 Sec. 2 of the Charter, according to which
law may set conditions for the performance of the business and other economic activities
. Moreover, the statutory provision in question in the statement
considered granting temporary legal license, respectively.

Statutory authorization for the type of business for the legal person
which by their nature essentially private, but that fills
nationwide scale in the public interest, for example in the field
public transport passenger service or defense State in which the participant
considers this a matter that falls within the powers of the legislature.

A similar argument is applied to the expression and against the opposition
petitioners regarding conflict § 8 ​​par. 4 and Annex no. 1 of Law no. 77/2002 Coll
. Article. 3. 1 and Art. 4, paragraph. 3 of the Charter and Art. 26 of the Covenant. Both of these
contested parts of Act no. 77/2002 Coll. considered a party for
editing component transformation of the legal relationships emerging
legal entities - of Czech Railways and the state organization
Railway Infrastructure Administration, where his opinion annex no. 1
in this regard an essential part of the law because it contains the key to the division
current state property under the management of state organization Czech Railways
between the two newly emerging legal entities. Due to the nature of the statutory provisions in question
and
Following mentioned provisions of the Charter and the Covenant on Art. 1 of the Charter, or following the constitutional principle of equal protection
, chairman of the Chamber of Deputies pronounced
belief that this provisions of the Charter and the Covenant only to fall
maximum equality of all persons and the prohibition of discrimination or favoritism
some groups of people by virtue of their sex, race, color, language
and the like, and can not therefore be applied against legal adjustment that
applies only to conditions of formation, organization and business activities
two legal entities.

The alleged contradiction § 6 para. 1 and 2 and § 7 para. 1 and 2 of Law no. 77/2002 Coll
. with Art. 1 of the Constitution is the statement noted that the country was not an adjustment
normal, however, for the adaptation of the law, which is not
retroactive, therefore aforementioned contradiction in this case is not present.
Leaving intabulačního principle to the change of ownership to the property
not, then according to the party or in conflict with § 133 of the Civil Code
because in this case is not about the transfer of immovable property under
contract, but on the basis law plus himself above § 133 of the civil Code
admits that even in cases when a case is transferred to the immovable
under contract, the method of acquiring property by
establish a special law.

In relation to the complaint of unconstitutionality of the entry into force of Law no.
77/2002 Coll., The critical parts shall become effective on emergence
of Czech Railways, then the rest of the day
promulgation in the Official Gazette, the position statement notes that determine entry into force of the Act
day, which provides a different, and therefore not
law itself is now relatively common practice Czech rulemaking, which has not been challenged
, the most common of this approach
used in the case of laws that have come into force on the date the agreement of
Czech Republic's accession to the European Union. Therefore
party to proceedings in that matter finds no conflict with the constitutional order of the Czech Republic
.

The procedural issues, the position statement states that the law no. 77/2002 Coll
. It was passed in a constitutionally prescribed manner, which according to § 97 para. 3
Act no. 90/1995 Coll., on the Rules of Procedure of the Chamber of Deputies, for adoption at its
quorum of 101 deputies voted 104 and 71 of them voted against.

Based on all these facts pronounce Speaker of the House of Representatives
belief that the law no. 77/2002 Coll.
was constitutionally prescribed manner discussed, adopted and promulgated, become a valid part of the Czech
rights and their content is not inconsistent with the Constitution and the Charter.

According to § 42 para. 3 and § 69 par. 1 of Act no. 182/1993 Coll., As amended
, Constitutional Court sent the petition to the Senate of the Parliament of the Czech Republic
. In its observations of 3 September 2002, his
chairman Assoc. JUDr. Petr Pithart introduction notes that the Senate
when discussing the draft law on the transformation of Czech Railways, approved
Chamber of Deputies, especially not agree with the proposed solution
substantive transformation without further examined in detail the constitutional draft site statutory
. The Senate argued in particular the asymmetry of the chosen business model
of Czech Railways in relation to the objects of state

Organization Railway Infrastructure Administration, based on the fact that on the one hand
remains the de facto today railroad unchanged and
on the other hand, there is an organization that manages Although the transport route, but the cost
associated with the provision of its operability paid it, who
her own business use. Doubts have been raised as well as the feasibility
law in practice in response to concerns that the law will mean
uncertainty over the ownership and management of state property, and
not only in relations between the legal successors of Czech Railways, but also in
relation to those entities, which will be a number, why bring
variety of application problems.

The substance of the proposal, the position statement notes that can be shared in
contained objections to the constitutionality of particular provisions of § 5 para. 2 and § 8 paragraph
. 4 of Act no. 77/2002 Coll., The unilateral preferential trade
Czech Railways compared to other carriers that Czech Railways
may not legally apply for a license and official authorization by
Railway Act, It constitutes a manifest inequality and thus represents a violation of Article
. 1 of the Charter. Assessment submitted constitutional objections, especially if
degree of uncertainty that the law brings into ownership, exceeds the rate
constitutional conformity will, in the statement leaves to the Constitutional Court.

Relation to the admissibility of specific legislation in relation to the general legal
modifying give corporate party notes that the Civil Code
existence of specific legislation admits taking
in the present matter, it is a case of legal regulation of the industry,
which historically have basically always special legislation, which arises not only from the railroad
importance for the economy of the state, but also the range of assets, with whom
entity providing this kind of service has.

Senate President concluding observations on the substantive issues of the constitutionality of the Act
agrees with the objection concerning the method of determining
effectiveness of Law no. 77/2002 Coll.
efficiency and derogative provisions, which are tied to an unspecified date, when this solution
his opinion can not be considered in conformity with Art. 1 of the Constitution because
principle of legal certainty is one of the basic attributes of a democratic || | state.

In terms of procedural party in a statement said that the Senate
during extensive discussions contested bill
accepted the recommendation of its two Committees which have been commanded proposal, and at its 13th meeting
3rd function period, held on 16 January 2002
government draft law on the transformation of Czech Railways in the form approved by the Chamber of Deputies rejected
, in a poll in which 70
present senators voted 44 for and 15 against it .

III.

Constitutional Court first examined as required under § 68 para. 2 of Law no.
182/1993 Coll., Was the law no. 77/2002 Coll., On joint stock companies
Czech Railways, state organization railway Infrastructure Administration and amending
Act no. 266/1994 Coll., on Railways, as amended, and
Act no. 77/1997 Coll., on state enterprise, as amended | || adopted and issued within the bounds of constitutionally provided jurisdiction and in a constitutionally prescribed manner
.

From the submitted parliamentary publications and stenographic reports and statements
party, it was found that
Chamber of Deputies approved the draft of the Law in the third reading at its 43rd meeting
11 December 2001 Resolution no. 1930, when the present
183 deputies voted 173 in favor and 3 against. Senate
at its 13th meeting held on 16 January 2002, the government bill on the transformation
Czech Railways in the form approved by the Chamber of Deputies rejected, in
vote in which 70 senators present
voted 44 for and 15 against.

According to § 48 para. 1 of Act no. 182/1993 Coll. The Constitutional Court
all the evidence necessary to determine the facts of the decision, from which
proposed evidence, it must be considered and may also admit evidence other than
are proposed.

This statutory provision should be interpreted in terms of Art. 83 of the Constitution,
according to which the Constitutional Court is the judicial body protecting the Constitution, as well as from the perspective
current case law, which is highlighted differing functions
Constitutional Court and to ordinary courts. constitutional complaints

Contested decisions of the general courts, the Constitutional Court assesses therefore only
concerned, the constitutional laws and international treaties pursuant to Art. 10
Constitution guaranteed fundamental rights and freedoms, and not examining the merits
perspective of ordinary law. For the area of ​​evidence of that maxim goes
lead evidence verifying the facts
complainant's allegations of prejudice to the fundamental rights and freedoms, but not
evidence on the merits, ie. Evidence on the level of ordinary law towards
decision on the merits of the case. This differentiation is
one of the features distinguishing constitutional justice from the judiciary
general.

From the perspective outlined the safeguards in order to clarify the facts
adoption of the Act, performed in this case the Constitutional Court evidence
stenographic record of the Chamber of Deputies on 5 February 2002
(46th meeting).

The Senate returned the draft Act, voted Deputies on 5 February 2002
in the 14 41 pm. At its 46th session under item 52. The program
negotiations, in voting no. 113, in which from the present 176 deputies
97 voted for and 69 against, whereupon presiding over the meeting,
Chairman of the Chamber of deputies of the Parliament of the Czech Republic Vaclav Klaus,
he said: "the proposal was not accepted. I know that it is a relatively tight | || vote. I ask that we all make sure that
voted in accordance with their conscience and whether his party command.
I understand that no one has any objections. Aborting discussion of item 52. the law was
accepted. " (Stenographic record of the 46th meeting of the Chamber of Deputies of the Czech Parliament
held on February 5, 2002).

At 14.50 hrs. On the same day at the discussion of item 53. Programme 46th meeting
Deputies (Bill amending Act no. 200/1990 Coll., On
misdemeanors, as amended, Act no. 90/1995 Coll., on
rules of Procedure of the Chamber of Deputies, as amended) into
debate enrolled Mrs Květoslava Čelišová: "Mr. President,
colleagues, I'm really very sorry, that enters this
agenda item, but I dare to challenge the vote no. 113, where
on printouts (ed. CC - recording from a technical voting system)
discovered that I voted against, but voted I have to. Thank you. "
(See feeling. Stenographic record)

The Chamber of Deputies on that proposal, then according
stenographic report was as follows:

Chairman of the Chamber of Deputies Vaclav Klaus: "Honourable Member, I do not know
what to do now. We point finished, they concluded, no one protested, everyone
him long enough to inspect. We're negotiating another point. | || I do not know what to do.

Mr deputy Vymětal although always knows what to do, but I do not know.

I will put to vote, who is contesting the proposal of deputy Čelišové || | regarding voting 113

I launched a poll serial number 114. Who is this proposal, whether
presses a button and raise your hand. Who is against this proposal?

the poll serial number 114 out of 179 deputies present in the 108, against
31st

Then I'll vote again. Please make a quorum was again returned 101

I will vote again on the bill. | ||
Who is this proposal, let presses a button and raise your hand.
Who is against this proposal?

the poll serial number 115 out of 179 deputies present, 104 for, 66 against
.

I consider it absurd and although please everyone to check
printout. I feel that should not be taken additional steps
these requirements into account, or would at least be maintained original
quorum of voters that may not vote anyone else. That seems very fair
.

Called Mr. German MEP.

Mr Deputy Kořistka. "

Deputy Zdenek Kořistka:" Ladies and gentlemen, dear
Mr President, I would like to challenge the previous poll.
I voted "no" on the printout appeared "yes."

Chairman of the Chamber of Deputies Vaclav Klaus: "I launched the vote.
Who is this objection, let presses a button and raise your hand.
Who is against this objection?

The poll serial number 116 from the present 179 to 127, against 14th
proposal was accepted.

I'll vote again. Please quorum of 101.

I launched the vote. Who is this proposal, whether presses
and raises his hand. Who is against this proposal?


The poll serial number 117 from the present 179 to 104, against 71

So probably wrong now anyone other than Mr. MP Kořistka. Otherwise
this is not possible. I consider the change in the number of voters in these steps
as illogical and anti-sense vote. It then we could always wait
on it until absolutely meet the full house, and vote only in that case
, or when they will all finish, or do not know how to do it. "

House this procedure maintained the original bill, and it
adoption of resolution no. 2017, for which the poll serial number 117
present, 179 voted for 104, against 71 deputies.

the Act was signed by the appropriate constitutional authorities and was
no. 77/2002 Coll. duly promulgated in Volume 34 Collection of laws, which were
distributed on March 1, 2002, and pursuant to § 42 para. 1 came into force on
publication, ie. on 1 March 2002 with the exception of Title II and Title III and
part III, which come into effect on formation of joint stock company Czech Railways
.

the question of the constitutionality of the procedure for adopting laws to
considering repeating the vote in the Chamber of Deputies, the Constitutional court expressed
on October 22, 2002 in judgment. Nos. Pl. US 5/02 (the award was announced under No.
476/2002 Coll. and will also be published in volume 28 of the Collection of
Constitutional Court). She has expressed the opinion, first, to acceptability
reasons, a method of re-voting, second, to protect the constitutional purposes
shaped by democratic majorities:

"Legislature's intent, if not expressed in the appropriate form and scope
itself in a legal norm (act) like a legislator's motives negotiations on
its contents and validity (effectiveness) have no effect, and in connection therewith | || not be (separately) assessed more accurately, one can not be deduced
grounds of exemption for violation of procedural rules
(principles), if it during the legislative process occurred,
regardless whether defects in the law identified ex post inflicted
inattention legislature when voting or his lack of knowledge
matter that the discussion of the draft law was associated. Repeated
vote, regardless of whether the amendment or resolution which | || s bill agrees as a whole is so limited
two conditions, namely immediately objecting parliamentarians and
positive decision of the Chamber of Deputies about it, and can be applied only to
defects (errors) at self-voting act, essentially
technique to vote or to determine its outcome, but not the merits of the present application
(factual misstatements).
... In a parliamentary democracy, political decisions based on the will of the majority expressed
free vote; conditions under safeguards of the Constitution explicitly expressed
provide constitutional legitimacy and legality of decisions taken
, and that the relevant majority during the legislative process
form, however, are different and almost always are tightened only at the substance,
which is subject to negotiation and subsequent decisions, but they are mainly in the form
majority of ad hoc affected also by that time, respectively.
Circumstances that accrue from it. Thus constituted a majority for the adoption
decision (approval of the draft law) are relevant to (be)
however changeable, and it often enough that in these respects
over time their numerical relevance can (could) lose and become
minority, but would be in danger of reversal
previously adopted decisions. Protecting the resulting majorities, or rather their earlier decisions taken
is therefore necessary not only in terms of stability
legal acts, but it represents, as a result of agreement reached at a given time
(compromise political will), also one of the guarantees constitutionality
which excludes arbitrary decision. "

Legal possibility of a repetition of the vote in the Chamber of Deputies is
enshrined in the provisions of § 74 para. 3 and § 76 par. 5 and 6 of the Act no. | || 90/1995 Coll., on the Rules of Procedure of the Chamber of Deputies. the vote according
statutory regulation must be repeated if there is a fault voting system
while not a failure removed immediately decide the Chamber of Deputies
on another method of voting. According to procedural modifications that
opens and the admissibility of other reasons, repeat voting, then
each Member may vote during or immediately after objection

Against the course or outcome of the vote, taking on such a plea
decide the Chamber of Deputies without debate; compliance with a plea must be
vote again.

The legislation except voting system disorders therefore specify
other aspects of defectiveness course or outcome of the vote, down only
condition application objections during the vote or immediately after.
Her interpretation with respect to the adjudicated case the constitutionality of Law no. 77/2002 Coll
. It requires answering the question, if the determination in question
aspects defectiveness only thing procedure, ie. the vote of compliance
opposition or implicitly contains a constitutional safeguards
legislative procedure deducible purpose, requires further clarification of the meaning of the term
raising the plea, immediately after the vote and finally requires
assessing the admissibility of changing the number of present or change their
voting for repeat voting.

From the perspective of comparative law vote of the Bundestag
foresees two cases of repeat voting. The first is according to § 20 paragraph.
5 of the Rules of Procedure of the Bundestag situation where the Bundestag
not be a quorum and may thus conduct the same program
convened once a vote can be repeated.
Second case is then according to § 51 of the Rules of Procedure of the Bundestag situation where
can not determine the outcome of the vote riots or show of hands;
repeat vote is then performed a procedure called. "Ram's Leap", which consists
that the MPs leave the meeting hall and go in again
different doors, taking permissible change the quorum.

Based on the principle of "inviolability of a parliamentary resolution," German
Doctrine "question, under what conditions can except in case of incapacity
quorum vote again, among the most difficult problems
voting rights" (N. Achterberg , Parlamentsrecht. Tübingen 1984, p. 647
). In position merely theoretical considerations is analyzed admissibility
repeat voting in error, which is given permission by speaking with
adopting two contradictory proposals, respectively. for violation of constitutional
procedural safeguards - eg. a quorum (ibid, p. 650).

In Austria, besides conceivable case of repeat voting, which has not been achieved
prescribed quorum, but in which a "true" repetition is not, as such
vote is "null and void", the Law on Rules of Procedure
The national Council also envisages two options for repeat voting. According
first (§ 66 par. 3), in relation to the outcome of the vote (other than by
names) Chairman of the National Council disputed, the Chairperson of the National Council
order a roll call votes. In this case takes on the identity
number present in repeated voting. The second option according to § 66 paragraph
. 7 Rules is the case of roll call votes or secret
vote, which does not match the number of ballots cast with the number of votes cast
and these differences can affect the formation
majority. Since according to § 66 para. 5 by roll call votes not cast ballot
one who was not present at the invocation of his name
is inferred from this fact finding of inadmissibility of changing
circuit voting for repeat voting.

According to Art. 189 of the Rules of Procedure of the Sejm of the Republic of
July 30, 1992, as amended, can be carried repeat voting, raises
If the result of the poll reasonable doubt;
Sejm may do so only at the same meeting at which the vote was held, and it is not permissible
repeat voting by name. The repeat vote
Sejm decides on a written proposal by at least 30 deputies.

The reason for the repeat voting no. 113 was a contradiction between MEP
Čelišovou alleged content of voting for the design and content
outcome of the vote according to the voting electronic device, according to which
voted against the proposal. The same reason for repeat voting no. 115 and said
deputy Kořistka (except that it claims
voted against the proposal, but the result of technical equipment it was vice versa).

Allegation of error voting system can undoubtedly be considered as a reason
repeat vote according to § 74 par. 3 of the Rules of Procedure
Chamber of Deputies, while his application was the procedure according to § 76 paragraph
. 5 of the Law. Technical problem would in that case

Impossible cognition actually manifested the will of the legislature and
acceptance of such voting results would then be a matter of chance,
irregularities in the functioning of technical equipment, but the result
democratic procedures. Link both provisions given by
specialty and generality, the repeat voting ballot for failure
facility is subject only to the case of a public vote.

Evaluation of the vote in the Chamber of Deputies but can reach a conclusion
secondly on considerable technical failure voting system
first, the acceptance of other reasons for repeat voting than
technical fault.

The statement leaned against the Constitutional Court of the findings made in
evidence, according to which eg. During the 8th meeting of the Chamber of Deputies
on 26 and 27 November and 4, 10 and 17 December 2002
been 7 cases of repeat voting. The reason was a member of four repetitions
proclaimed difference in the poll and its result on the technical
device, the reason the other two were misled MPs and in one case
any reason missing. In all cases, the repetition of Deputies vote
agreed.

From a comparative viewpoint can say the diversity of approaches to modify
repeat vote in the legislature. However, we can say that although the terms
admissibility repeat vote in both states
appears to be procedurally and substantively more demanding than it is in Act no.
90/1995 Coll., As amended, may ex post
interpretation even in this modification construct meaningful purpose.

The decision on the merits of the repeat voting
balanced democratic procedure, achieve the purpose of repetition is then given the possibility of re
challenge for repeat voting. In comparison eg. In the adaptation of Austrian
is the purpose of, or removal because of repeat voting, vote
achieved by repeating the form of roll call votes. The principle of "inviolability"
Parliament's resolution, which is linked to the principle of the rule of law, which
derivative is bound by the principle of state law, or the bound bodies of public authority
legal acts, and if not achieved their changes
procedure envisaged by law, requires that it objected to the application
course or outcome of the vote when the vote or immediately after it.

Notion of immediacy yet to be interpreted restrictively, and it
both in terms of material (ie. The immediacy due to the era of knowledge
because of repeat voting), both in terms of time in relation to
time of voting.

In terms yet indicated circuit safeguards
constitutionally conforming interpretation of § 76 par. 5 and 6 of the Rules of Procedure of the Chamber of Deputies
can be concluded that the law no. 77/2002 Coll. He was adopted
constitutionally prescribed manner.

Remained unanswered but the question of the admissibility of amendments to present
Members for repeat voting, as well as changes in the voting
deputies already legitimacy of repetition objected. Odvisí response from
fact, if repeated votes a new vote
without any correlation to the vote, which is repeated and the result of which is
void resolutions of Deputies, or the purpose
repeat vote only removal because of the repetition in relation to deputies
that progression, respectively. Voting questioned.

In this matter, in vote no. 113 voted 176 deputies,
97 of the draft, in voting no. 117, then 179, 104 for the proposal.
Repeat voting thus changing the outcome of the voting-result
, according to which the proposal was not accepted, on REZULTAT, according to which the proposal was accepted
. As is apparent from the record of those voting no. 113 and 117 on
46th meeting of the Chamber of Deputies on February 5, 2002
four other present and voting MPs were Miroslav Benes, and Zdenek
Horníková (both ODS), but who did not support the proposal, and Ambrozek
(KDU-CSL) and Rudolf Tomíček (CSSD), has voted for the proposal, and
deputy Jaroslav Štrait (KSCM), present voting no. 113, with
not participate in voting no. 117. Members of voters already vote no. 113
vote no. 117 changed their vote in favor of the adoption of the draft
Ludmila Müller (KDU-CSL), Květoslava Čelišová,
Vaclav Frank, Josef Houzák and Sue Rujbrová (all KSCM).


Eg. Austrian legislation depends on resolving the issue of admissibility of amendments
present the purpose of repeat voting. Where it is the result of the vote
(other than names) questionable, you can order a vote by
names, while not insist on the identity of those present during repeated
vote: repeated if the roll call votes in which can not
ballot cast someone who was not present at the invocation of his name
is inferred from this fact finding of inadmissibility of changing
circuit voting for repeat voting.

Repeated voting by the conviction of the Constitutional Court must be interpreted in the sense
fundamentally new poll, in which the change of the circuit is not present
for assessing the validity of relevant since the previous
Voting is absolutely invalid. This does not apply unless i
despite compliance procedures according to § 76 par. 5 and 6 of the Act no. 90/1995 Coll.
Would be the norm control proceedings in accordance with § 68 para. 2 of Act no. 182/1993 Coll
. it has been shown that a repeat vote did not pursue the achievement
ostensible purpose (eg. a reflection on the failure of a voting system)
but abuse of rights and achieving change the outcome of the vote.

Because despite the fact indicia with sufficient certainty in
adjudicated matter has not demonstrated Plenum of the Constitutional Court has no choice but to accept
conclusion, according to which the Act no. 77/2002 Coll.
was passed in a constitutionally prescribed manner.

From the perspective of the general, then for assessment of the constitutionality of repeat voting
Constitutional Court it considers necessary to assess the objective raised objections
not taking any such purpose can be considered constitutional
(eg. As such could be considered mistake in the vote).
Constitutional Court in this regard sees the reasonableness of the conditions detailed editing
repeat voting in the Act on the Rules of Procedure of the Chamber of Deputies.

IV.

Outset substantive assessment of the constitutionality of the contested provisions of Act No.
. 77/2002 Coll. must emphasize the fact that the Constitutional Court to
in proceedings to review the standards to evaluate the effectiveness of the transformation
state organization Czech Railways, which is linked to their privatization. In this
management is forced to limit solely to examining the compliance of the contested
statutory provisions with the constitutional order [Art. 87. 1 point. a)
Constitution].

The main argument of the petitioners in relation to all the proposed abolition
statutory provision an objection is contrary to the principle of equality
pursuant to Art. 1, Art. 3. 1 and Art. 4, paragraph. 3 of the Charter, Art.
26 of the Covenant and Art. 14 of the Convention. This inequality is seen as unwarranted and unjustified
advantage of Czech Railways
against all other private parties who are entrepreneurs and
established under the Commercial Code, the legal form of a company,
being given different the terms and conditions of its establishment
different licensing procedures. Special objection is then applied to the constitutionality
derogative provisions of the Act.

Contrast, party, Parliament of the Czech Republic
, arguing in particular the lack of fundamental rights
arising from Art. 1 of the Charter for legal persons in the concreteness of further acceptance
special treatment of the issue, as well as legislative practice, which
regularly makes the entry into force of the derogative terms of the future
legal reality.

Constitutional Court early in his tenure on the question
status of legal entities as subjects of fundamental rights and freedoms.
Essential in this context is the finding sp. Nos. Pl. US 15/93 of 19
January 1994 (the award was promulgated as no. 34/1994 Coll., And was also published in Volume 1
Collections Constitutional Court decision on p. 23 et seq.) In | || which was stated as follows: "it is necessary to consider whether the relevant
provisions on fundamental rights and freedoms relate to legal persons
ever. the Charter itself in this direction does not expressly. One can not invoke the statements of former
Czech and Slovak Federal Republic when
ratify the European Convention on human rights, which
recognizes the competence of the European Commission of human rights adopted under Article. 25
Convention complaints by individuals, non-governmental organizations or groups of persons
claiming to be the victim of a violation of the rights conferred
Convention (cf. Communication of the Federal Ministry of foreign Affairs,

Published under no. 209/1992 Coll.). This suggests a willingness State
provide protection and legal persons as regards fundamental rights and freedoms
. Indeed, in this respect, we can also refer to § 72 para. 1
Act no. 182/1993 Coll., On the Constitutional Court, from which it follows that
constitutional appeal may be natural or legal person, if
argues that a public authority violated its fundamental right or freedom guaranteed
constitutional law or international treaty according to Article
. 10 of the Constitution. "At the award was established Constitutional Court in its now
constant jurisprudence [see, eg. Decision Ref. No.. II. ÚS 192/95 dated 1 November 1995
(Volume 4 Collections Constitutional Court decision , pp. 197 and
seq.), which in relation to Art. 1, first sentence, and Art. 3. 1 of the Charter
noted that in them "covers the principle of equal rights for both
natural persons and legal "].

constitutional court also commented on the special rights arising from
constitutional maxim of equality, eg. the interpretation of Article. 37 par. 3 of the Charter. the
judgment file. Ref. IV. ÚS 13/98 dated September 3, 1998 (volume 12 Collections
Constitutional court decision, pp. 45 et seq.) stated in this regard:
'Legal persons ... have the capacity to be a party management and court
they must be treated the same way as the party
who is a natural person. "

conclusion, but not the content of the interpretation of the Charter does not meet either of
critical reflection doctrine (see eg. J. Philip, chapters
to study constitutional law. Brno 2001, p. 65 et seq.).

According to the constant jurisprudence of the Constitutional Court, when assessing compliance, respectively.
Contravention of the Act, respectively. its provision with the constitutional order, bound only
verdict, but not the reasoning of the petition (see judgment of 24 May 1994
sp. Nos. Pl. US 16/93, no. 131/1994 Coll., Volume 1 Collections
decision of the Constitutional court, pp. 189 et seq., and others), from which to make decisions
thing is clear, that reference aspects for distinguishing subjects and rights in relation to
legal persons, as enshrined in the Charter of the Covenant or in
Convention is due to their consideration as the case.

In understanding the constitutional principle of equality, the Constitutional Court upheld especially
[especially in judgments in cases involving under sp. Nos. Pl.
US 16/93, Pl. US 36/93 (judgment of 17 May 1994 no. 132/1994 Coll., Volume 1
Collections Constitutional Court decision, pp. 175 et seq.), Pl. US
5/95 (Judgment of 8 November 1995 no. 6/1996 Coll., Volume 4 Collections
Constitutional Court decision, pp. 205 et seq.), Pl. US 9/95 (judgment of 28 February 1995
no. 107/1996 Coll., Volume 5 Collection of the Constitutional Court
pp. 107 et seq.)] With an understanding of the constitutional principle of equality, as was || | expressed by the Constitutional court of Czechoslovakia (Pl. US 22/92, judgment of 8 October 1992, the amount
96, pp. 2791 Collection of laws of 1992, Collection of resolutions and findings
Constitutional court of Czechoslovakia, pp. 37 and seq.): "It is for the state to
interest in securing its functions decided that certain groups
fewer benefits than others. However, it does not act arbitrarily. ... If
law determines the success of one groups and also sets disproportionate obligations on another
can be done only with reference to the public
values. " The Constitutional Court rejected this absolute concept of the principle of equality
while further stated: "The equality of citizens can not be understood as
abstract category, but as relative equality, as it has on the mind
all modern constitutions" (Pl. US 36 / 93). The principle of equality
thereby shifted into the area of ​​constitutional acceptability of aspects
differentiating subjects and rights. He sees the first aspect, therefore, the exclusion
arbitrariness. The second factor arises from the legal opinion expressed in
judgment in the matter file no. Nos. Pl. US 4/95 (judgment of 7 June 1995
no. 168/1995 Coll., Volume 3 Collections Constitutional Court decision, pp. 209 and
seq.): "Inequality in social relationships, if
affect fundamental human rights, must reach an intensity, at least in a certain direction
, very essence of equality. This usually happens when
if the violation of equality is connected to violation of another fundamental right, | || eg. the right to own property under Art. 11 of the Charter, one of
political rights under Art. 17 et seq. of the Charter and the like. " (Both Pl. US
5/95). The second aspect in evaluating the unconstitutionality
legal regulation which establishes inequality is that it affects
one of the fundamental rights and freedoms. In other words, the Constitutional

Court in its case law interprets the constitutional principle of equality in terms
accessory and non-equality.

In this matter, but these aspects should be applied to the assessment of the Act, which governs
unique case, which thus deviates from one of the fundamental material
concept of law, which is generality.
Recall that the general requirement of the law is an important part
principle of the rule of law, and thus also the rule of law.
As noted by one of the leading theorists of the 20th century law
FA Hayek: If we start from the premise that "if all actions of the state
duly approved by the legislature, the estate of conservation laws," so it "| || but complete misunderstanding of the importance of the rule of law ... the estate
Act imposes limits the scope of legislation: it restricts it to the kind
general rules known as formal law, and excludes legislation ... directly aimed
for some people ... Nobody will argue that when the famous
case during the reign of Henry VIII. Parliament decided to cook the bishop of Rochester
that, said Richard Rose will be cooked to death without benefits, which
he gives his affiliation to the clergy ', this
decisions made under the dominion of the law ". (FA Hayek, The Road to
slavery, Prague 1990, pp. 73-75)

General arguments in favor of the Act are: separation of powers,
equality and the right to independent judge. What assumptions can formulate
But for exceptions, for the fulfillment of what conditions would be
consider the constitutionality, respectively. the unconstitutionality of the law regulating
unique (ie. concrete) case? Under what conditions can meet
concluded that the law relating to the singular case
constitutes a breach of the principle of equality?

Aspect that must be tested first, the criterion for assessing the constitutionality of the state
based non-accessory inequality: "the principle of equality
however, offer bland real limitation laws concerning
unique case, because it allows you to
with something unique and extraordinary treated corresponding to its peculiarities. the question is whether
in this case there really is such a trait that seems
general arrangement and arbitrary regulation for an individual case
reasonable. to the extent in which the law concerning the unique case
expression ratio - not mere voluntas - will be incorporated into an ordered structure
rule of law. " (H. Schneider, Gesetzgebung 2. Auflage,
Heidelberg, 1991, p. 31) If the adoption of the Law on the unique
case is not an expression voluntas (arbitrariness) must therefore not be
rational arguments. It is not part of the Constitutional Court
judge the degree of rationality.

Second aspect is represented criterion for assessing the constitutionality of the state
based accessory inequality; it is inadmissible inequality
which has resulted in prejudice to the fundamental constitutional rights and freedoms.

Separate argument against statutes regulating singular cases is
principle of separation of powers, the separation of the legislative, executive and judicial powers in a democratic legal state
: "Adoption laws concerning
individual cases to prevent possible application area rights. the right to a lawful judge
independence and legal protection exclude individual
regulation lawmaker in areas that are not protected by the principle
"nulla poena sine lege" (where there lex
meaningful way could only be general and written legal sentence). "
(Ibid, p. 32) Art. I, Section 9 of the US Constitution in this regard:
"Not to be issued no law, the content of which would be a court judgment."

From the perspective outlined constitutional safeguards appears for the annulment of
§ 4 para. 1, § 4 para. 4, second sentence, of § 5, paragraph
. 2, § 8 par. 4, § 38 par. 3 and Annex no. 1 of Law no. 77/2002 Coll.
Well-founded.

If we can take note of the general arguments in favor of a special legal regulation
transformation of the state organization Czech Railways as they are
contained in the explanatory memorandum to the bill and the statement
party to the proceedings of the Parliament, therefore eliminate arbitrariness
legislature, and not to test aspects of the contested statutory provisions
constitutionality non-accessory inequality, then u
aspects of assessing the constitutionality of accessory inequality must reflect the impact of the

Statutory provisions to the values ​​protected by the constitutional order.

Derogatory reasons falling on the part of § 4 para. 1, § 4 para. 4
second sentence, of the provisions of § 5 para. 2 and Annex no. 1 of Law no.
77/2002 Coll. excluding inequality in relation to the general legislation
contained in the commercial Code and the Act no. 265/1992 Coll., on registration
ownership and other rights in rem to real estate, as amended
regulations relating to uncertainty division of property state organization
Czech Railways to two successor organizations. If eg progressed.
Legislature by a law governing a unique case among
church restitutions (Act no. 298/1990 Coll., On some
property relationships of monastic orders and congregations and Archdiocese of Olomouc
), define the property in question accordingly which certainly
corresponded to modify general (Annex no. 1 and 2 of the Act). Similarly,
i.e. in a way that certainly corresponds to a general adjustment, finally graduating
legislature and in the case of Annex no. 2 of Law no. 77/2002 Coll.

The meaning and purpose of precision and formality requirements defining
determination of non-cash contribution to the joint stock company and its valuation
not only the protection of justified confidence in the law and legal certainty, as set out
concept of the rule of law (Art. 1 Constitution), but also the protection of property rights of third parties
(Art. 11 of the Charter, Art. 1 of the Additional Protocol to the Convention). For
due to violation of rights under Art. 3. 1, Art. 11 of the Charter, Art. 1
Constitution, Art. 26 of the Covenant and Art. 14 of the Convention in conjunction with Art. 1 of the Additional Protocol to the
Convention, the Constitutional court of the provisions of § 4 para. 1, § 4 para. 4
second sentence, of the provisions of § 5 para. 2 and annex no. 1 of Law no. 77/2002 Coll
. set aside.

The provisions of § 8 par. 4 of the Act no. 77/2002 Coll., Which relieves joint stock company Czech Railways
obligation to apply for a license and the relevant
official permission until the day that the Treaty of Accession of the Czech
Republic to the European Union force, given the purpose of the Act,
expressed in the explanatory memorandum submitted by the proposer of the Act, according
which is the responsibility of the state to create a "harmonized market environment in which the carriers
different types of traffic applied on the basis
equal starting conditions of competition ", can not be assessed otherwise than as contradictory terms
non-accessory equality (Art. 1, Art. 3. 1 of the Charter). Indeed
establishes unjustified inequality, which lacks the legislature explicitly expressed,
possibly implicitly normative framework contained purpose. On the contrary, this arrangement
finds himself in conflict with the purpose of submitting the proposal and proclaimed
expressed in the explanatory memorandum.

You can not mention in this context somewhat ambivalent attitude toward
transformation of European Union law, which if set quotas
food products, or in the segment, which is associated with a restriction
free market was the transformation of European Union (nota bene in
intense form) carried a severely period before joining the European Union
in the segment, but where EU law envisages the introduction
conditions, competitive environment, the legislature awaits the transformation to a
moment of entry.

Possible dispute over the rights and obligations of successor entities to the state
organization Czech Railways is by nature a dispute private, and not public
, or under the general regulation of § 7 para. 1 of the Civil Procedure Code
falls within the jurisdiction courts. Although the legislation
acceptable structure, according to which a certain group generally defined
civil cases not decided by the courts, but by administrative authorities, however
§ 38 para. 3 of Law no. 77/2002 Coll.
misleading jurisdiction of the Ministry of transport and Communications to decide private disputes
two specifically designated entities, requirements constitutionality editing
unique case does not meet. In relation to the judicial decisions of civil disputes
does not meet ministry standards therefor independence, establishes a mechanism
decision not common for a group of cases, but only
unique for two specific subjects of law. Therefore, it can only § 38 para.
3 of Law no. 77/2002 Coll. considered to conflict with Art. 1 and Art. 3. 1
Charter and Art. 80 of the Constitution. On these conclusions of the Constitutional Court
not altered by the possibility of judicial review of the decision of the Ministry
made according to § 38 par. 3 of Law no. 77/2002 Coll. (§ 7 para. 2 and § 244 to §
250 liters of Civil Procedure).


Application indicated safeguards assessment of the constitutionality of statutory regulation
singular case in relation to the provisions of § 6 para. 1 and 2, § 7 para.
1 and 2 of § 42 par. 1 and § 42 para. 2 of Law no. 77/2002 Coll
. then led the Constitutional Court to conclude proposal to repeal statutory provisions listed
rejected. In this context can
accept the legitimacy of special adaptations of incorporation of Czech Railways, as
expressed in the explanatory memorandum to the bill, as well as in the expression
party House of Deputies, as well as to identify with || | his opinion, according to which "exit intabulačního principle
a change of ownership to real estate is not in conflict with § 133 of the civil Code
because in this case is not about the transfer of immovable
under contract, but on based on the law, plus himself said
§ 133 of the civil Code admits that even in cases where an immovable thing
transferred under the contract, the method of acquiring ownership of real estate
establish a special law ".

In relation to the alleged unconstitutionality derogatory provision could be seen
legitimacy of their abolition to conflict with Art. 1 of the Constitution only if
if it was any future legal reality with which the statutory repeal linked
, defined vaguely and dimly, therefore it was not possible to determine with certainty
moment invalidation derogovaných legislation or
this would have been determined retrospectively. About
none of these two cases, but with § 42 of Act no. 77/2002 Coll. it is not;
future legal fact to which the law attaches derogation, defined and certainly
clear and its determination does not raise any reasonable doubt.

Aware of the fact that the repeal of those statutory provisions without adequate
vacantia legis would result
inapplicability of the Act, as well as the fact that the Czech government
order dated July 10, 2002 no. 733
approved the foundation deed of Czech Railways, as well as its constitution, therefore
according to § 42 para. 1 in connection with § 6 para. 1 of Law no. 77/2002 Coll.
acquired on 1 January 2003 the Act in efficiency in all its
provisions deferring the effectiveness of the derogative judgment on 31 October 2003
created Constitutional Court democratic lawmakers
timeframe for constitutional for the implementation of the Law no. 77/2002 Coll. For its part
necessary, the Constitutional Court and the protection of rights acquired in the meantime
third parties in good faith, in intertemporal
provisions of the Act.

Vice President of the Constitutional Court:

JUDr. Holeček vr