In The Matter Of An Application For Annulment Of Certain Provisions Of The Act. 320/2002 Coll.

Original Language Title: ve věci návrhu na zrušení některých ustanovení zák. 320/2002 Sb.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=55266&nr=53~2F2003~20Sb.&ft=txt

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