53/2003 Coll.
FIND
The Constitutional Court
On behalf of the Republic of
The Constitutional Court decided on 5 July 2004. February 2003 in plenary on the draft group
Senators of the Parliament of the Czech Republic for annulment of sections 2, 5, 6, 7, 8, 9 and
11 article. CXVII of Act No. 320/2002 Coll., amending and repealing certain
laws in connection with the termination of the activities of the district offices,
as follows:
The proposal is rejected.
(I).
A group of Senators appealed to the Constitutional Court under art. 87 para. 1 (b). and)
The Constitution of the Czech Republic (hereinafter referred to as "the Constitution") and § 64 para. 1 (b). (b))
Act No. 182/1993 Coll., on the Constitutional Court, a proposal for the repeal of certain
the provisions of Act No. 320/2002 Coll., amending and repealing certain acts
in connection with the termination of the activities of the district offices.
A group of senators is seeking repeal of the legislation, which provides for a transition
employment of workers-officials whose district offices
repeal of the law, whose provisions are designed to have selected Cancel,
prescribed to 1.1.2003 pursuant to article. Point 1 of CXVII of Act No. 320/2002 Coll.
the territorial authorities (municipalities and cities responsible for exercising the delegated
scope and region) without their own decisions of the workers concerned and
also, without the consent of the competent authorities. Legislation,
This change, which is contained in paragraphs 2, 5 and 8 of article. CXVII
Act No. 320/2002 Coll., worded as follows:
2. rights and obligations of labor relations of employees of the Czech
States included to work in district offices (hereinafter referred to as
"employee of the District Office") from the United States on territorial
authorities in cases where the activities of the staff of the District Office
provided for by this special law, or pass into the scope of
territorial self-governing units.
5. in the case referred to in point 3 of the agreement not later than 1.9.2002,
lays down the rules and limitations of staff numbers at the appropriate territorial
authorities or Government departments on the proposal of the head of the District Office
and with the recommendation of the Director of the Regional Office of the Ministry of the Interior.
8. the provisions of section 102 paragraph. 2 (a). j) Act No. 128/2000 Coll., on municipalities
(municipal establishment) and article 59 paragraph 2. 1 (b). (b)) of the Act No. 129/2000 Coll., on the
counties (County establishment), the determination of the number of employees of the territorial
authorities to the cases referred to in point 2 shall not apply.
A group of Senators argue that this adjustment, the legislature has violated the and has restricted
fundamental rights and principles of the Organization of public power, as enshrined in article. 8, art.
paragraph 79. 3 and article. 100 paragraph 1. 1 and article. paragraph 101. 4 of the Constitution, article. 2 (2). 2,
article. 4 (4). 1, 2 and 4 and article. 9 of the Charter of fundamental rights and freedoms (hereinafter referred to as
"The Charter"), art. 6 (1). 1 Charter of local self-government (hereinafter referred to as
"The Charter") and article. 4 (4). 2 Convention for the protection of human rights and fundamental
freedoms (hereinafter referred to as "the Convention").
A group of Senators refers to the article. 8 and 10(1). 100 of the Constitution, which proclaim
local authorities local communities of citizens with the right to self-government
in the form of a share in the exercise of public authority through their representatives.
Recalls the decision of the Constitutional Court (PL. ÚS 1/96). 3 (2). 1
The Charter, according to which the local government is an expression of the ability of local
authorities within the limits set by law, under its responsibility and in the interests of the local
of the population to regulate and control the part of public affairs. This includes
the possibility of determining the number of employees of the Government. State intervention in this
autonomy represent a degradation of the Government into the form before 1989
top model controlled by national committees. Territorial self-governing units are
separate entities acting on its own behalf, which bear their own
responsibility as employers. Autonomous decision-making on
the employee determines the section 102 of Act No. 128/2000 Coll., on municipalities (municipal
the establishment of a), and article 59 of Act No. 129/2000 Coll., on regions (regional establishment).
According to the article. 6 (1). 1 of the Charter are the local community, which
establish its own internal structure according to your needs.
An authoritative staff interfering with the autonomous management limitations
Governments with own property because it forces them to use part of their
gender pay gap. The status of local finances in mind does not.
A group of Senators recognises that territorial autonomy is not unlimited, it may be
into it to protect the law and interfered with the law laid down by the way.
Challenged provisions of the Act by a group of senators are not eligible
bring on the transition of employment relationships under section 249 of the labour code.
The affected section 2 is a General Declaration, on the basis of not
no succession is feasible, as is apparent from the fact that it is an effective
up from 1. 1.2003. The transition is therefore possible only on the basis of the agreement (section 3)
or limitations (section 5). Against the agreement cannot be nothing. On the contrary,
authoritative limitation (paragraph 5) constitutes a violation of the constitutional principles
for legislating, as this is not a law, but the Ministry of
of the Interior, who shall decide on the reallocation of workers on each of the autonomous
units. Violated the obligation of the legislature is so according to art. 4 (4). 1
Of the Charter to impose obligations only on the basis and within the limits of the law.
Neither requirement is not fulfilled article. paragraph 79. 3 of the Constitution, according to which administrative
the authorities may issue legal regulations on the basis of the law and in its
limits, if they are authorised to do so by law. The legislator has not defined the limits of the
This legislative activities, Ministry of the Interior. Section 5 modifies the
"the rules and the numbers". According to a group of Senators means that the decision of the
the Ministry has a normative character. The Constitutional Court has repeatedly
the Court held that the legislature or executive power not forms of rights
have arbitrarily, but must comply with Directive ústavodárce and
the requirements of transparency, accessibility and clarity (finding no. 167/2000
SB.).
In the present case this requirement is not, as it is not clear whether
the decision shall be delivered to and who publishes. The law cannot be inferred, on the
that the territorial Government unit employees have to go. In practice,
is decided by the head of the District Office. Against such decisions is missing
remedies. Thus the power of the State in breach of article 88(3). 2 (2).
2 of the Charter, as it is missing the legal limits of regulation. It is also a violation of article 6(1).
101 of the Constitution. Interference with the activities of territorial self-governing units has to be
intended by law to protect it. The abolition of the district authorities is not required
the reason for the employment of former employees of the State.
A group of Senators also points out the need to assess the contested institutes
Act No. 320/2002 Coll., employees. Employees are
were indebted to another entity, you may have to work
in another place, and maybe even another kind without his will. The end of compulsory
the nature of such work does not change nor the ability to notice, since the work of the
the employee will have to serve for a period of notice. In addition, he would
It was severance pay. The contested adjustment is therefore in breach of article. 4 (4). 2
Of the Convention and article. 9. 1 of the Charter, which prohibits forced labour, and none of the
the exception is not met. In addition, the imposition of forced labour does not specify
the law, but the 250,000 decision.
Due to following the transition of employment of employees
the district authorities on the presumed group of Senators proposed
also the cancellation of the related provisions, sections 6, 7, 9 and 11 of article. CXVII
Act No. 320/2002 Coll., the text of which is as follows:
6. the exercise of the rights and obligations of labor relations staff
District Office, in cases where the activities of the staff of the District Office
established by this Act to be transferred in accordance with section 2 of the local government
units passes from the District Office to the Office of the Government representation in
matters of property, if it is not regulated by specific statute to the contrary. These
employees shall ensure the implementation of the tasks related to the termination of
the activities of the district offices after 1. January 2003.
7. employees of the district offices of the labour relations
did not proceed at the appropriate territorial self-governing units according to point 2, as well as
the claims of the United States from labor relations to employees
the district authorities and applies on behalf of the State to satisfy the Ministry of
finances.
9. The procedure provided for in points 2 and 3, the provisions of section 251d of the labour code
does not apply.
11. Movable property in the possession of the United States, which have been
the competent authorities and the farming district that are necessary for the performance
activities in conversion under this Act within the scope of the territorial
Governments, and are used by the staff of the District Office, at
covered by paragraph 2, except for the matters referred to in point 12
the date of 1 January 2003 of the ownership of the Czech Republic to the ownership of
local government unit to which you pass the rights and obligations of the
labor relations staff District Office.
II.
The Chamber of deputies of the Parliament of the United Kingdom in its observations
draws attention to the explanatory memorandum to the draft law, which recalls that the proposal
the law also addresses the labour relations of the existing employees of the district
authorities. The purpose of the provisions concerning the reallocation of security is the proper administration
the State administration of territorial self-governing units, in which the individual
the scope of the converted, trained employees who these activities already
they perform. In cases where an employee agrees to move to a
territorial self-governing unit or the Interior Ministry, will do
According to the labour law. The view of the appellants, it appears as a dedicated and
single-sided, as it does not respect the requirements for the exercise of State power,
specifically, the need for a professional camera. Personnel measures take up
on the reform of the public administration. Due to the fact that an essential condition
limitation is the agreement of the parties, it is not in any way forced
works or services. Compliance with the proposal threatens to cause a hazard of working and
social security for workers of the district authorities, who agreed to
transfer themselves and their agenda on the regional authorities or the municipal authorities of municipalities with
extended powers. The law was duly approved, according to the observations
signed by the respective constitutional officials, and declared. The Chamber of Deputies
is convinced that the law is in accordance with the constitutional order and the legal
of procedure.
Senate of the Parliament of the Czech Republic recalls the circumstances in its observations
discussion of the law. The amendment was filed suggesting
inadmissibility of illegal intervention as an authoritative limitation to
Self-Government of municipalities and regions. The Senate, however, agreed with this proposal. With
those amendments that the Senate adopted the law was returned
The Chamber of Deputies. On the proposal of the Group of Senators the Senate recalls that
According to the article. 105 of the Constitution can be entrusted to authorities in the exercise of State administration authorities
only by law. Act No. 320/2002 Coll., it just is.
In an unprecedented scale puts the power of Government to the regional and local
units and some activities will entrust to a separate scope of territorial
self-governing units. Its purpose is to significantly strengthen the position of
territorial self-governing units, rather than an effort to restrict their constitutional right
on the Government. The contested provisions ensuring proper implementation of the transfer
the scope of the municipalities and regions. Performance of State administration represents the decision-making
the rights and obligations of citizens and legal persons. It is therefore in the General
the interest of sufficient personnel facilities responsible for local government
units. The General arrangements of the contested point 2 give expression to the provisions
which favour the scope of territorial self-governing units in determining
the number of employees. Authoritative limitation is the extreme options. In this
context, then pass the provisions on odds and ends of Council decision
the relevant territorial self about the number of employees.
Autonomy of municipalities and regions is not inviolable value. Local Government
units are public corporations, whose priority is not to protect
own interests, but above all the duty to care for the needs of citizens and defend the
the public interest in carrying out their tasks. Decision quality is certainly
This public interest. The Senate concluded that staffing
public administration reform through the transition of workers those
the district offices of the municipalities and regions most efficiently ensure the quality
decision-making practice. Therefore, the legislation gave its assent. To
This decision helped the assurance as well as Minister of the Interior within
organizational measures connected with the reform of the public administration will be on
territorial self-governing units, together with the staff of the State converted
the corresponding wage funds. Furthermore, the legislation creates a
an adequate legal framework for the implementation of the transition of employees. To the voucher
on forced labour in the character of the transition on the basis of the delimitation Board notes that
then it would have to be found to be unconstitutional and the General format of the transition
the rights and obligations provided for in a number of other laws. Transfer of rights and
obligations of labor relations means that there is a change
the employer, when all the rights and obligations of the existing
the employer will enter a new one. Otherwise, the employment relationship does not change anything.
The receiving employer is bound also to kind of work contracted at
the contract of employment and the place of work. If the employer could not
allocate the agreed work, is the negotiation of changes. Only when the
the employee did, consider for example. termination of employment
ratio. Until then, it was the barrier to work for the employer.
The reason for termination of employment is such that the employees
areas of the severance pay.
A group of senators in a replica of the views of Deputies and the Senate
stresses that the law reform Government does not enhance as
as to the agenda by the transfer. Refuses to claim the Senate that
condition limitation is always agreement. Points out that the Chamber of Commerce
Parliament is enough concerning the question of the legal basis for
determination of the numbers and rules limitations on local government employees
units or administrative authorities and recalls the existing conflicts between communities and
repealed by district authorities. For the inexpressible in many ways is considered
a group of Senators a parallel with labour law. To the assurance of the Minister
the Interior, that the transition from the State to the employees of territorial self-governing units
It will be financially secure, which contributed to the adoption of the law, the Group
Senators observes that by law any such claims do not arise, and that the
the financing of this transition is regulated only by order of the Government, and it just
for the year 2003.
III.
Application for annulment of the provisions of the law brought a group of 20
the senators as a legitimate claimant. Because in the course of the proceedings came out
found no cause for rejection of the proposal nor identified the reason for the
termination of the proceeding, the Constitutional Court discussed the proposal and decided about it (§ 68
paragraph. 1 of the law on the Constitutional Court).
IV.
The Constitutional Court then things dealt with pursuant to § 68 para. 2 of the Act on the constitutional
the Court. The Constitutional Court verified that the Act, whose provisions are designed
to cancel, both houses of Parliament was duly discussed and approved,
He was signed by the respective constitutional officials, and declared in the collection
laws, and noted that the law was enacted and issued within the limits of the Constitution
set out competences and constitutionally prescribed way.
Finally, the Constitutional Court assessed the content of the contested provisions of the law of
for their compliance with constitutional laws and international treaties
According to the article. 10 of the Constitution.
The opposition groups against the mandate of the Ministry of the Interior of the Senators to
the reallocation of workers those authoritative district offices to offices
counties, cities and towns can be distinguished between three basic and the most important:
1. violations of the rights of the Government,
2. a reservation against the forced nature of work authoritatively delimitovaného
the employee and
3. notice to underpinned by legally vague and insufficiently way
deciding on the reallocation.
In the.
Guarantee territorial Governments under the Constitution is the laconic. In addition to the resolution
the local and regional levels of Government (article 99) is the territorial Government
conceived as a right of the territorial community of citizens growing out of his
characteristics and capabilities, as the Constitutional Court reiterated
finding of 19. 11.1996, SP. zn. PL. ÚS 1/96 (a collection of findings and resolutions
The Constitutional Court, volume 6, page 375).
"The Constitutional Court considers the local government for the irreplaceable folder
the development of democracy. The local government is an expression of the rights and abilities of
local authorities, within the limits imposed by law, within the framework of their responsibilities and in
the interest of the local population to regulate and control the part of the public
matters. "
This ability allows you to enforce the Constitution, inter alia, by establishing
the legal status of territorial self-governing units and is counting on the fact that
self-regulatory bodies have their own property and operate according to their own
budget (article 101, paragraph 3). At the constitutional level also confirms
the democratic character of the Government in the elected councils (article 101
paragraph. 1 and 2 and article. 102). However, the Constitution also envisages a single State
adjustment of local governments in the form of a legal framework. The definition of that part of the
Public Affairs, is already a local or regional community citizens
eligible to drive, is the task of the legislature, or State power (art. 104),
rather than the constitutional legislators paid, that would be the highest level of national law
definition of issues of local interest. With the permission of the legislature to
the definition of limited importance of territorial Affairs, which shall be given to the territorial
municipalities, the Constitution, a number of other European countries.
The Constitution generally expressed by the right to local Government certainly must not be
legislature emptied, but it is certain that the legislator has a wide
space for specifying the matters that are best managed at local or
regional level without any major intervention of the Central Government. The Club,
specifically from legal, economic, politological and other aspects,
can hardly be determined a priori, which matters to local or regional
impact and deserves an exemption from the operation of the central power. Decision making
about the competences of local and regional authorities is always political. Even matters
apparently a local or regional nature may gain national importance,
for example, they may be without prejudice to fundamental human rights and freedoms, or
the consequences can transfer across the border of the unitary
the community, which is becoming more common in the environment of high
the mobility of the population.
Not forgetting that the Constitution explicitly foresees (article 105) with a share of the territorial
authorities in the exercise of State authority on the basis of legal
credentials. Such mediation exercise of public authority, of course, with
entails the subordination of the State control authorities, which
the aim is to secure high-quality exercise of State power. This subordination
of course, they must also anticipate the law. The constitutional text does not say
clearly, whether the local municipalities save performance state
management, or it can be authoritatively such statutory transfer to perform only
on the basis of an agreement between the State and the competent regional authorities.
In the light of the emphasis on autonomy would certainly appeared to be nosnější request
consensus. On the other hand, however, it is obvious that a single performance of State power
in by the municipalities, the towns and the County are generally
accepted and was never questioned as incompatible with the law of the territorial
the community of citizens to Government. As such, it does not deny or
a group of senators in its proposal for the repeal of certain provisions of the Act
No. 320/2002 Coll.
Czech constitutional standard of local self-government is complemented and enriched by
the standard, which results from the international commitments of the Czech Republic,
namely the Charter of local self-government of the agreed 15. 10.1985, which entered
the laws of the Czech Republic 1. 9.1999, published in the Council of Europe
# 122 under the ETS and in the Czech Republic under no. 184/1999 Coll. and 369/1999
SB.
The Charter is not a classic human rights treaty, non-
individuals, but to the community of citizens, determined by collective rights. From
This entails the peculiarities of its interpretation and application. Her rules
expressed, which are European standard of local self-government, are hardly
directly applicable (self-executing). European standard of territorial
Self-Government is the expressed characteristics, which has the authority of a Contracting Party
report, or the rights to enjoy. The Contracting Parties have the obligation to
to guarantee its territorial Government designated a certain number of such rights
Charter. The rights guaranteed in the Charter of the territorial authorities of the Contracting Parties are
the framework. In a number of provisions of the Charter itself provides for the detailed national
the legislation, which certainly represents the bounds within which territorial
Government will move. It certainly does not guarantee complete freedom of territorial
self-government. It is not the European tradition. Laws, respectively. other regulations
the choice and the tradition of the Contracting Parties may specify in detail the range of
Affairs managed by the territorial Government, including those which have
Government to keep track of its organization, including the form and
the position of the various institutions, determine the framework for forest management, grant
the property and its financial resources. Certainly the Charter does not render the territorial
self-government jurisdictional body approaching States.
The Charter is not equipped with a hard tool of her promotion, is missing
the mechanism for the handling of complaints by the Government on its
violations by States-parties, let alone an effective targeted
standard enforcement tool against States actually in breach of the Charter.
Are only available policy instruments; the Contracting Parties have the obligation to
inform the Council of Europe concerning amendments to the legislation (article 14), the Council
Europe prepares periodic reports on the State of local and regional authorities and in its
under the Act of the body representing the territorial Government and institutions
for monitoring the status and development of local and regional authorities in the individual Member
States, first of all, the Congress of local and regional authorities in Europe
(Congress of Local and Regional Authorities of Europe). However, it is missing
the single, authoritative interpretation of the provisions of the Charter, which would be separated
cases of possible edit from the Edit State. Limited relevance
have the recommendation of the institutions and bodies of the Council of Europe States towards
their legislation and practice relating to the territorial Government. It is commonly
While the provisions of the Charter on the slightest evidence.
The weakness of tools promoting the Charter, of course, does not change its
binding effect. The Charter is not a mere declaration is a real international
the Treaty, which binds its contracting parties. The Constitutional Court is based on the
wide-for international law-the concept of an inclusive constitutional order
(article 112, paragraph 1, in conjunction with article 1, paragraph 2, of the Constitution, as amended)
entitled to assess the compliance of the Czech law with him [article 87, paragraph 1 (a))
The Constitution, as amended]. The framework nature of the Charter nor the specific character of
She expressed collective rights to its use as a scale at
abstract review of constitutionality of laws. However, you cannot forget
its general character, which opens up a wide space for political discretion
the Contracting Parties, the legislature in creating the appropriate legislative
the framework. The Constitutional Court is certainly not called for reviewing this
political step, verifies only that the Charter is not exceeded
the above-mentioned limits.
Of the provisions of the Constitution and the Charter can be inferred that legal restrictions and guidelines
for the action of local and regional authorities are admissible. On the whole,
of course, these rules of territorial self-government cannot completely delete.
Individual adjustment, however, can be quite strict and binding, if they are to
This important justifiable reasons.
The Charter does not contain explicit provisions on the transfer of the exercise of State authority
units of territorial self-government. Surely, therefore, it is not for international law
The Czech Republic, are prohibited from excessive loading of government performance
However, the Government can jeopardise its material and financial
independence. Extensive performance by the territorial authorities
In addition, the Government can bring its officers to a "schizophrenic"
position will have to take into account the interests of the territorial
Community population and the interests of the State. Ban enforcement
the State administration authorities, however, of the Charter cannot be inferred. In connection with the
the Czech reform of territorial administration Congress his recommendation No 77 of the
2000 for the Czech Republic supported the strengthening of the autonomous scope of application outside the
other because it will reduce the dependence of the Government of the State in the exercise of
by the. The Council of Europe therefore recognizes the problems that
transfer of State power brings to the Government for it to function. This
the transfer was but at the same time one of the main elements of decentralisation in the Czech
Republic made the reform of the public administration in 2000 (Law No.
128/2000 Coll., no. 129/2000 Coll. and no. 131/2000 Coll., on the capital city of Prague,
and other laws). It can hardly be regarded as incompatible with the
the main trend of the Charter.
Transition officials namely district offices is related to the performance of the migration
State power in the region, and the selected cities and municipalities. Basically all of the committed
the agenda is Act No. 320/2002 Coll., specified as the transferred responsibilities. In
Currently, when the regional level of Government only produces, can be
reasonably doubt the ability of regions immediately on your own
ensure the exercise of State power. In a certain extent, the same is true for the newly
in charge of cities and towns, while there are more than ten years, will not be
However, never have, of course, so extensive and specialised expert
device as a region. Authoritative reallocation can therefore be understood as a
transitional measures. Regions and cities and municipalities is opening up a
space for gradual change of personnel according to their intentions on the way
reorganisation, the application of qualification requirements, and so on. This
the process will be subject to only limited review by the central authorities
the State, whose sole purpose is to prevent endangering or failure
the exercise of State administration scope of regions, towns or municipalities.
Admission of authoritative limitation Act No. 320/2002 Sb.
by limiting the autonomy of municipalities, cities and regions to determine the number of employees, their
municipal, municipal or regional authority [section 102 (2) (b) (j)) of the
municipalities or section 59 paragraph 1. 1 (b). (b)) of the Act on regions], but it is a limitation of the
lawful. Provision of authoritative reallocation pursuant to Act No. 320/2002
Coll., acts in this regard, as a lex specialis to the said provisions of the
laws on territorial self-government.
Authoritative limitation represents a departure from the principle of autonomy
local communities (units of territorial self-government) when creating
its own administrative structures (article 6, paragraph 1, of the Charter). Due to the
outlined the particularities of this can hardly be considered as a breach of the Charter. New
model local authorities linked to a broad power of the uniform State
management in the Czech Republic only. The language of the Charter is reserved,
This international treaty talks about autonomy, as defined more general
the legal limits.
Authoritative limitations namely district offices to officials of the County and
in charge of cities and towns represents a sure hit to matrimonial property regimes
local government unit; municipalities, cities and counties have laws
personality separate from the State, are equipped with private property and
manage your own budget (article 101, paragraph 3, of the Constitution). Detailed
the legal regulation of the management of local and regional authorities is, however, permissible,
Self-Government does not mean the sovereignty of local communities (article 101 paragraph.
4 of the Constitution).
Czech territorial self-government is not in the economy completely separate
or in other respects. Taxes are collected in a uniform manner throughout the country
According to the national legislation, just for some taxes and fees the State
his legislation, concedes that the municipalities, cities and region
rate ranged within certain limits. The State also determines the way
the distribution of tax revenue, today with a high degree of redistribution
[Act No. 242/2000 Coll., on the budgetary revenue determination certain taxes
local municipalities and some State funds (the law on the
financial destination taxes)]. Large differences in assets of regions, communities and cities
also brought a transfer of part of State assets (Act No. 171/1991 Coll., on the
the transition of some of the things from the assets of the Czech Republic to the ownership of municipalities).
Management of cities, municipalities and regions significantly affect the grant activities
the central authorities of the State. Significant impact on the local or regional
ratios have the investments made in the territory of the municipalities directly by the State. Edit
the remuneration of the officers and employees of territorial self-governing units is
also, nationwide. Management of municipalities, cities and counties also significantly affects the
the urgency and complexity of the needs, satisfying in its separate
the scope of the.
Actually the property of the State separated the territorial self-government, comparable
Perhaps with the blow of Government in the United States, the Czech Republic does not exist and its
the introduction is unimaginable for many reasons. Comparable statutory
the definition and reduce the impact and ensure territorial self-governing units
There are in all European States. The Charter respects this fact
and lays down the principles for source only local and regional authorities; you have to match
tasks of the regional and local authorities (article 9 (2)) and their use has to be there,
where it comes to the actual activity of the autonomous community, what loosest (article 9 paragraph 1.
1.) on the financing of State administration territorial Government Charter
He does not speak.
Framework for financing of territorial self-governing units as well as the definition of
their tasks must undoubtedly result while preserving the efficiency of their
the financial collapse (article 100, paragraph 1, and article 101 of the Constitution, article 9, paragraph 4, and 7
Of the Charter). View of authoritative reallocation of, and exposure to delimitovaných
workers, namely district offices within the regions, responsible for cities and
in light of the Charter and the Constitution, therefore, must odviset from the way
Fund the enforcement by the State. The current legislation
It is not entirely clear. Individual laws on territorial self-government are calculated with
contributions to the performance of State administration the scope of § 62 (the law on
municipalities, section 29 para. 2 of the Act on regions, as amended). About
This contribution shall be decided by the Executive of the State (the Czech Government,
The Ministry of the Interior, the Ministry of Finance). More detailed directive for
determining the amount of the contribution referred to the laws of neformulují, and is missing front view
procedures for the negotiation and dispute resolution mechanisms. The austere
the statutory provisions on contributions, however, can still be interpreted as constitutionally and
mezinárodněprávně Conformal manner so that they represent a guarantee of
economically the costs incurred on the performance of State administration
the scope of the.
The Constitutional Court therefore intends to refrain from early intervention. Acted but would,
When they found that the amount of the contribution or the circumstances of its provision
obviously do not correspond to the tasks imposed by the territorial samosprávnému of the whole.
Insufficient financing of the exercise of State power by the
in fact threatens the very existence of functional local self-government authorities. Policy
expressed in the Constitution and the Charter would have been violated. For a more detailed
the legislative arrangements for financing the exercise of State administration, territorial
authorities, however, would appear to be desirable.
Vi.
Reviews for authoritative limitations of employees of the district authorities to the
territorial self-governing units by decision of the Ministry of the Interior on a proposal from
the head of the District Office in terms of the objection of inadmissibility of forced
the work is complete without a reminder of other comparable cases that
our law.
For automatic succession in place of the employer,
on the death of current employer-natural persons, when the new
the employer becoming heirs (with regard to the rules for
settlement heritage and with a view to protecting the interests of employees as
the creditor), when you merge the legal entities of the same and different types, while
the Division of legal persons, when the sale of the company or in connection with the
the bankruptcy of the employer. As the change often more important than formal change
an employer also may appear to be a substantial change in the management or členstvu
employer-a company or other legal entity.
No doubt the main reason for automatically maintaining the employment relationship
in such cases, is to protect employees from the threat of
unemployment. Some changes occur unexpectedly, and at the same time instantly
(death of the employer), while others can anticipate, however,
relatively quickly (selling the company when its problems). To enable the successors to the
the rights and obligations of the employer to terminate the employment relationship, the
opening up room for abuse, many measures would
the employer can carry out just to get rid of their
Labor liabilities.
Another reason for automatically retaining employment in those
cases, the protection of property of a new employer who is
the successor to the General legal conditions of the original employer. Instant
the departure of the bulk of the staff who would not agree to the continuation of the
the employment relationship, the employer would be able to cause considerable
economic damage and in many enterprises and institutions would also
threats to the interests of third-party customers and purchasers of goods and services-and
cannot be excluded or a general threat situation.
The continuity of the employment relationship with the new employer is, of course,
imaginable only if other elements of the employment relationship
remain unchanged and will meet the agreed conditions. This applies to
above all, the type of work, remuneration for her, her performance space or time
circumstances (duration of employment, working time and rest periods).
Other working conditions are laid down authoritatively and change
the employer will remain untouched, for example. the rules of safety at work.
The right in case of the predictable and the upcoming changes on the side
employers in some cases outlined in the European
the standard introduces some of the duties of the current employer:
employee information and consultation with the trade unions. All of this confirms the
běžnost practice the transition of the employee to another employer without his
explicit consent in the Czech Republic, but also in the
Western European States.
Transformation of private and public sector in the Czech Republic was after
1990 accompanied by countless times by changing the legal status of the employer.
Not to mention an extensive privatization of the Czech economy. The continuity of the
the employment relationship in these cases was never known and understood
as the storage of hard labour. Authoritative officials of the State Ministry
the units of self-government, or only within the sector of public authority,
represents a change in this respect, that is not due to its
the impact on employees between the most serious.
The option to refuse to work for the new employer is with regard to the
the legitimate interests of the employer sufficiently ensured the possibility of dismissal
employees without giving a reason, which is associated with the obligation to work
temporarily in a two-month notice period. There can be considered with regard to the
the usual options of normal employees of the employer in
reasonable.
The obligation of the employee to work after the notice period represents a
"tax" for legislative staff stabilization of employment relationships
the modern welfare state. Also, under such conditions, an employer's
He deserves a certain stabilisation in the area of labor relations.
The Constitutional Court on the above aspects in the exercise of employment in terms of
the basic law according to art. 9 of the Charter has not yet ruled. Way
to support the opinion of a group of senators is not pronounced, nor the case-law
The European Court of human rights in reflection article. 4 of the Convention prohibiting the
the slave or forced labor. No authoritative interpretation of the negative model
the EIB, by Act No. 320/2002 Coll. is not administered in this regard or in
respect for the right to earn a living by freely chosen employment
According to the article. 1 (1). 2 of the European Social Charter. As an obstacle to this
the model can be hardly seen the Convention on forced or compulsory labour
(No. 29) of the International Labour Organization (No. 506/1990 Coll.), which is aimed at
slavery and feudal practices and on the working duty. Doesn't work nor
Quick foreign comparison. The German Federal Constitutional Court so far
No its judikátu cited in trade publications mentioned the
adversely to the comparable German legislation.
The authoritative the reallocation of workers-officials of the district authorities on the
municipal, city and district authorities, prescribed by Act No. 320/2002
Coll., you can include the following information.
Type of work to be performed will remain the same or comparable, the competent territorial
Government Unit takes the place of the State as an employer if,
If the activity of the staff member concerned shall be transferred within the scope of the territorial
Government unit.
In the specific case of course it depends on the formulation of the kind of work in a work
the contract. The need for a consensual changes to the type of work is within the transmission
of course, the normal exercise of State administration.
The wage conditions are maintained, will continue to apply the law
No 143/1992 Coll., on salary and remuneration for stand-by duty in budgetary
and certain other organisations and bodies, in the current version.
Whereas the regional authorities and municipal and village authorities usually
houses in other towns and cities than the district offices will be canceled
removal of officials. In all cases, the authoritative limitations
in another village in the workplace is required the agreement of an official District Office
intended for capacity in labor relations with the relevant employee
about the change of the place of his work after 1 January 2003.
An employee of the District Office, which disclaims its reallocation to authorized
territorial self-governing unit, it could prevent the timely notice of its
of the employment relationship. The final timetable for the interference of the district offices is known with
the half-year in advance, the reform decentralized State administration
is gearing up for even longer. Due to the skills of the workers concerned
-officials of the district offices and district offices, given the role when it
implementation cannot admit their lack of awareness of the
the changes have touched them personally.
The reallocation of staff of the district offices, the authoritative, in practice, describes the
Guidance note to realize the transition of the employees of the district authorities on the
territorial self-governing units of the Ministry of the Interior of the 9. July 2002, which
counts, rejecting the transition to territorial self-governing unit with regard to the
change of place of work from some of the staff noisy district
the offices and the policy for such a case the ability to notice from the district
authority as an employer for redundancy caused by organizational
changes. The same guideline notes the need for changes in the species carried out by
work, and stresses the need for the agreement, while between the employee and the
by the employer. When disagreement also applicable notice given
employees for its redundancy. The Interior Ministry for internal
necessary, opting for such an interpretation of the relevant provisions of Act No. 320/2002
Coll., that the position of officials of the district authorities, namely protects over
constitutional or international standard, which can only be welcomed.
VII.
Claims relating to the failure to comply with the legal form of point to the brevity
the provisions of Act No. 320/2002 Coll., which do not correspond explicitly on each
the question. For example, it is not clear to what extent, if at all, are for
Ministry of the Interior, the head of the receiving binding proposal from the District Office and
recommendation of the Director of the regional office. Also missing an outline of resolving disagreements
between the head and the recommendation of the Director. Tasks of the Director of the regional
the Office and the expectations to which it is exposed, are not easy, the Director shall have the
at the same time the interest of the region and to defend the interest of the State in the exercise of State authority region
even when you check the villages and cities in their exercise of State power.
Also seems to be the nature of the contested individual decision of the Ministry of
the reallocation of those authoritative employee of district offices in the region,
cities and municipalities. The best way to characterize the decision-whether they are
taken in bulk for the entire districts or counties or separately for
individual trade unions and the Department and the individual city or town-like package
legal acts, but this is not the normative acts, bringing the adjustment
legal conditions of clearly identified physical (delimitovaní officers) and
legal (the region, which was responsible for cities and municipalities) people. The source of
the rights remain the only provisions of the Act No. 320/2002 Coll.
Act No. 320/2002 Coll., provides more precise rules which take into account the
the agreement referred to in section 3 when preparing and releasing authoritative decisions
the reallocation. It is clear that the limitation would be authoritative anyways
took place in the range that corresponds to the amount that is being transferred, without agenda
regardless of such a consensus. Still, the legislature of the agreement between the
an employee of the State (represented by the district authority) and the territorial
authorities allowed it. This opened up the space for solutions that
interested persons are most comfortable with. Due to the obvious in advance range
the transfer of the exercise of State administration, territorial self-governing units there is no reason to
concern that the territorial Government Unit, which helpfully closed
the 250,000 agreement, remained at a disadvantage.
Inequality threatens, perhaps, in those cases, the authoritative limitations,
When the agenda of the divided not according to lidnatosti managed territory, but
According to the peculiarities of its territory, population, economy, and cultural and
sanitary facilities. The reflection of these facts may not always completely
conform to societal needs and then threatens the creation of inequality between the
each territorial self-governing units. Requested the intervention of the Constitutional Court
fear of such cases, however, seems premature and exaggerated.
A decision on the reallocation of authoritative is reviewable in court. As
the decision of the State (public) Administration, which decides on the
the privileges and obligations of legal entities (the concerned officials-
employees and the relevant provinces, cities and municipalities) shall be subject to judicial review
According to the article. paragraph 36. 2 of the Charter, since Act No. 320/2002 Coll., or other
the law of judicial review of the decision of the Ministry does not explicitly exclude.
Due to the likely prejudice to the fundamental rights and freedoms and
basic principles of the organisation of the State would obviously be contrary to such exclusion
The Charter and the Constitution.
VIII.
After assessing the circumstances of the case and the analysis of the case for compliance
the provisions of Act No. 320/2002 Coll. came with the constitutional order of the constitutional
the Court concluded that the authoritative save the exercise of territorial
entities resulting from the contested provisions of the Act including the
limitation of workers is compatible with the Constitution. The method of financing
exercise of State authority by territorial self-governing units, provided that
the State's contribution will be sufficient to meet the imposed tasks,
does not represent a threat to the autonomy of territorial self-governing units according to
The Constitution and the Charter of local self-government. In the authoritative the reallocation of
workers abandoned the district offices cannot be seen as forced labor.
The legal instruments enacted in connection with the abolition of the district offices and
State administration of the migration authorities responsible for territorial
Governments are constitutionally acceptable.
The contested provisions of Act No. 320/2002 Coll., has not been found to be in breach of
the constitutional order, both for the adoption of the derogačního of the award requires the article. 87
paragraph. 1 (b). and the Constitution of the United States) No. 1/1993 Coll., as amended by
Constitutional Act No. 395/2001 Coll., and, therefore, the Constitutional Court design group
Senators on the cancellation of points 2, 5, 6, 7, 8, 9 and 11 of article. Act CXVII.
320/2002 Coll., amending and repealing certain acts in connection with the
the termination of the activities of the district offices, according to the § 70 para. 2 of the law on
The Constitutional Court has rejected.
The President of the Constitutional Court
v.z. JUDr. Holeček v.r.
Vice Chairman
