In The Matter Of The Application For Revocation Under The Act On Česká Národní Banka

Original Language Title: ve věci návrhu na zrušení části zákona o České národní bance

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=51555&nr=278~2F2001~20Sb.&ft=txt

278/2001 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 20 April. June 2001 in plenary on the proposal of the President of

Republic on the repeal of the law No 6/1993 Coll., on the Czech National Bank, in

the text of laws No 60/1993, no. 15/1998 Coll. and no 442/2000 Coll., section

1 (1). 3 in the words of "and the special legal předpisy1)", in section 2 (2). 1

the first sentence in section 2 (2). 2 (a). (e)) in the words of "and the specific

legal předpisů1) ", in § 5 para. 2 (a). (b)) in the words "for the activities

carried out in the main objectives of the assurance "and the word" assembles

draft operating and investment budget ", § 6 (1). 3, section 35 (b). a) and

§ 47 para. 1 to 4,



as follows:



The provisions of § 2 (2). 1 the first sentence, § 5 para. 2 (a). (b)) in the words "for

activities carried out in the main objectives of the assurance "and the words" and

He shall draw up a draft operating and investment budget ", § 6 (1). 3, section 35

(a). and) and § 47 para. 2 to 4 of Act No. 6/1993 Coll., on the Czech national

the Bank, as amended by Act No 442/2000 Coll., on the date of publication shall be deleted;

This finding in the statute book.



The remainder of the proposal is rejected.



Justification



On 22 November. in December 2000, the Constitutional Court received a proposal from the President of the Republic

the repeal of the law No 6/1993 Coll. on Česká národní banka, as amended by laws

No 60/1993, no. 15/1998 Coll. and no 442/2000 Coll. (hereinafter referred to as "the law of

The CNB "), namely:



in section 1 (1). 3 in the words of "and the special legal předpisy1)" and section 2

paragraph. 2 (a). (e)) in the words "and in accordance with special laws, předpisů1)"

conflict with the article. 2 (2). 3 and article. 98 of the Constitution of the Czech Republic (hereinafter referred to as

"The Constitution") and article 6(2). 2 (2). 2 of the Charter of fundamental rights and freedoms (hereinafter referred to as

"The Charter")



in section 2 (2). 1 the first sentence for the conflict with the article. 98 of the Constitution,



in § 5 para. 2 (a). (b)) in the words "for the activities carried out in

the main objectives of the assurance "and the words" and shall draw up a draft operating

and the investment budget of the "conflict with the article. 98 of the Constitution,



§ 6 para. 3 conflict with the article. 62 (a). k) of the Constitution,



section 35 (b). and) conflict with the article. 98 of the Constitution, and



§ 47 para. 1 to 4 for the conflict with the article. 98 of the Constitution.



President of the Republic closer to its proposal warrants so that the above

the provisions of § 1 (1). 3, and § 2, paragraph 1. 2 (a). (e) the Act on the CZECH NATIONAL BANK entrust)

The Czech National Bank competence administrative office not only in the scope of

provided for by the Act on the CZECH NATIONAL BANK, but also by specific legislation,

which are the legal standards and lower legal force than the law. Due to the

the fact that the Constitution allows you to interfere in the activities of the Czech National Bank

only by law, this provision is in direct contradiction with art. 98 of the Constitution.

In addition, according to the article. 2 (2). 3 and article. 98 of the Constitution and article. 2 (2). 2 of the Charter of

State power can be exercised only in cases and within the limits laid down by the

the law, in a way, that the law provides. This means that the scope of the

a public authority cannot be established by a regulation, but only podzákonným

by law.



The provisions of § 2 (2). 1 first sentence of the Act on the CZECH NATIONAL BANK establishes as the main objective

the activities of the Czech National Bank, security, price stability, whereas the article.

98 the second sentence of the Constitution defines it as taking care of the stability of the currency. According to the

the petitioner as to the two different concepts, while price stability is the only

one of the components of monetary stability. However, the law cannot change, respectively.

narrow the scope of competence of the legal norm of higher legal force-

The Constitution.



The provisions of § 5 para. 2 (a). (b)) in the words "for the activities carried out in

the main objectives of the assurance "and in the words" he shall draw up a draft operating and

the investment budget "imposes the Czech National Bank to split the budget on

two parts--on a budget for the activities carried out in

the main objectives of the Czech National Bank and for operating and investment budget,

While it removes the Bank Council of the power to decide on one of its parts

and confers on it the Chamber of Deputies. The appellant may occur

in a significant way to compromise the performance of the main objectives of the Czech National Bank

According to the article. paragraph 98. 1 of the Constitution. In his opinion, you cannot have an exact

the border between these two budgets, for operational and investment

the budget includes funding for a series of important activities of the Czech national

the prerequisites for the realization of the Bank's main objective, such as. the preparation of the

the monetary analysis, the issue of banknotes and coins, banks or stores management

the cash. This is in contradiction with the intention of ústavodárce, which was

the independence of the Czech National Bank in fulfilling its objectives. It was a

expressed by the inclusion of the Czech National Bank in a separate title of the Constitution

outside of the legislative and the Executive, when it was made a special

the executive body of its kind with well-defined areas of responsibility,

i.e.. care about the stability of the currency. Due to the interference of other institutions, the Bank will not be

able to this objective. According to the article. 98 of the Constitution can be made law

provide more detail and interfere with its activities, however, certainly not

so that this led to a denial of the position of the Czech National Bank.



According to § 6 paragraph 1. 3 of the Act on the CZECH NATIONAL BANK Governor, the Government proposes to viceguvernéry

and the other members of the Bank Board, although article. 62 (a). to this permission) of the Constitution

he entrusted exclusively to separate the scope of President of the Republic. The law on the

The CZECH NATIONAL BANK has restricted the jurisdiction of the President of the Republic as stipulated by the Constitution.



The provisions of § 35 (b). and the Act on the CZECH NATIONAL BANK) Česká národní banka stores

establish, in agreement with the Government inflation target and mode of the course of the Czech currency to

foreign currencies. In the case of differences of opinion will be the Czech National Bank

forced to change their opinion to the stability of the currency. This can be used by the President

the efforts of the Government of the Republic understood as about obtaining options to intervene in

the independence of the Czech National Bank, and thus to its monetary policy. Can

in the medium term, lead to greater throughput of compromise

monetary-policy measures, and thus a threat to price stability. Law

thus imposes an obligation to find a compromise, leading to a reduction

the independence of the Czech National Bank, as President of the Republic for the

the flagship in terms of its future functioning in mission

monetary-policy issues. The agreement of the Government and the Czech National Bank are,

due to the frequent diversity of political, economic and monetary

the goals are difficult to reach and time consuming, which can significantly

compromise the correct timing of monetary-policy measures.



Proposal to repeal § 47 para. 1 to 4 of the Act on the CZECH NATIONAL BANK is based on the same

the reasons for such a proposal to repeal § 5 para. 2 (a). (b)).



The judge-rapporteur in accordance with § 42 para. 4 and section 69 of Act No. 182/1993

Coll., on the Constitutional Court, as amended, and requested the observations

both chambers of the Parliament of the United Kingdom, because all the contested

the provisions of the Act on the CZECH NATIONAL BANK are contained in the amendment to this law, i.e. in

Act No 442/2000 Coll., amending Act No. 6/1993 Coll., on the Czech

the National Bank, in wording of later regulations, and Act No. 166/1993 Coll., on the

Supreme Audit Office, as amended, that was

accepted at the time when the Parliament of the Czech Republic, he worked in the composition of both

Chambers.



For the Chamber of Deputies sent the observations of 6. February 2001, its

Chairman: Prof. Ing. Václav Klaus, PhD., who stated that the main reason

the amendment was the need for harmonisation of the law on the CNB with the regulations of the European

Union. As regards the proposal to repeal the provisions of § 1 (1). 3, and § 2, paragraph 1. 2

(a). (e) the Act on the CZECH NATIONAL BANK), pointed out the non-regulatory nature notes

the line and the fact that the reference to the special law in the

legislative practice commonly used. In the footnotes, in

the proposal in question are listed the laws and not subordinate legislation. To

application for annulment of article 2 para. 1 the first sentence of the Act on the CZECH NATIONAL BANK said that he

the petitioner was aware of the need for changes to the article. paragraph 98. 1 second sentence of the Constitution.

A proposal to amend the Constitution, however, was rejected by the Chamber of Deputies. He pointed out

the fact that the Government is now in the Chamber of deputies presented the new

the draft amendments to the Constitution that short solves this problem. The Chamber

the Chamber of Deputies approved it 26. January 1, 2001. Considers, therefore, that it should

Constitutional Court to await the completion of the legislative process this

the constitutional changes. In the case of an application for annulment of the § 5 para. 2 (a). (b)) and § 47

paragraph. 1 to 4 of the Act on the CZECH NATIONAL BANK Chairman of the Chamber of Deputies declared that the

must remain on the text of the law. The Chamber of Deputies came out of the article. paragraph 98.

1 of the Constitution, according to which it is permissible to the activities of the Czech National Bank

interfere with the law. In debates there repeatedly, that the Czech national

the Bank would not be out of sight of the relevant institutions in the areas of

exclusively the most farming, which is subjected to such inspections and

in other State institutions. Conferred upon it by the competence of the administrative and

the Office carries out banking supervision. The President of the Chamber of Deputies pointed out

even at that, the fact that the President of the Republic in its proposal did

the ability to control the management of the Supreme Audit Office of the Czech

the National Bank, unless it is a in securing its activities

the main objective, therefore, should not be called into question or change in section 5 and section

47. The Argument that you cannot have the exact boundary between the operational and

the investment budget and the budget for the main goal, not

the relevant argument, but unfounded concern. These costs accurately


You can separate and no longer current annual management reports drawn up

The Czech National Bank, these two types of separate management. Examples,

which States the claimant, are clearly the cost of the main

objectives and the Chamber of deputies will not act on them. Any discrepancies are

yet solvable pursuant to § 47 para. 3 of the Act on the CZECH NATIONAL BANK. Approval procedure

the budget is not inconsistent with their professed independence of Czech national

of the Bank. Also institutions such as the Parliament, Constitutional Court and Supreme

the EFTA surveillance authority having a certain degree of independence, but only

Supreme Audit Office has this attribute explicitly listed in the Constitution. From

the law also does not imply the possibility of the Chamber of deputies in the design of a production and

the investment budget to make any changes. It can only not to approve and

request its supplement or refine. Even in the case of disapproval does not occur

with regard to § 47 para. 4 limitation of financial flows of the Czech National Bank

on ordinary activities. Does not agree with the proposal to repeal or § 6 para. 3

the Act on the Czech National Bank. The Act on the CZECH NATIONAL BANK in section 6 (1). 2 provides that the Governor, the

viceguvernéry and other members of the President of the Republic appoints and replaces,

Whereas pursuant to article. 62 (a). k) of the Constitution appoints the members of the Bank Board of the Czech

the National Bank. In the Chamber of Deputies was supplemented by the proposal in section 6 (1). 3 on

the appointment of the Governor, viceguvernérů and other members of the Bank Board on

the proposal of the Government, which in its opinion need not lead to conflict. The appointment of the

members of the one body is completely unusual, not only in countries

The European Union, but also in other developed countries around the world. Czech Republic

is a parliamentary Republic, and according to the article. paragraph 54. the Constitution is not the President of the

Republic of the responsible performance of their functions. According to some expert

opinions is then the idea that he could create about their will to anyone

irresponsible Bank, incompatible with the concept of a democratic

a parliamentary Republic. The proposal to repeal section 35 (b). and the Act on the CZECH NATIONAL BANK)

the President of the Chamber of Deputies stated that cooperation is stored in it

The Czech National Bank with the Government as the supreme body of executive power. This

kind of cooperation does not mean restriction of the exclusive competences of the Bank or its

independence. In the system of State power is not absolute independence, has its

conceptual limitations, the Constitution, moreover, is limited to the very framework definition

position and competences of the Czech National Bank. A certain autonomy is given by

the inclusion in the Constitution of a separate title, however, as the text of the Constitution expressis

independence does not confer. It was not calling into question the provisions of § 2 (2). 3

the Act on the CZECH NATIONAL BANK for its cooperation with the central banks of other countries, by the institutions

supervision of banks and financial markets in other countries and with international

financial organisations, so should not be disputed or

the provisions of § 35 (b). and) of this Act. Different degrees of cooperation,

communication and alignment are used in a number of countries, without their bank

considered to be dependent on the Government. In conclusion, he stated that the Chamber of Deputies

acted with the knowledge of having to deal with the necessary changes in the activities of the United

the National Bank to the harmonization of legislation with the provisions

The European Union, and in a situation of trying to make amendment to the Constitution

the change of the main objectives of the Bank, was removed to the formal unconstitutionality.

While some have been made further changes in the law and is convinced that the

are within the competence of the legislature. The law was approved by the required

a majority of 14 June 2001. July 2000, following the rejection by the Senate 4. August

2000 the Chamber of Deputies again about the law voted in 27. October 2000 and

She remained on the original version as well as a 7. in December 2000, when voted

about the law, that she returned the President of the Republic.



The Senate addressed a representation of 7 November. February 2001, its Chairman doc. JUDr.

Petr Pithart, which summarize the discussion of the draft amendment to the law on

The CNB in the bodies of the Chamber. He stated that the questions were discussed, in particular, paragraph 2 of the

paragraph. 1 and § 6 para. 3, where it was generally stated that they are not in

accordance with the Constitution and with the law of the European communities. In the opinion of

some of the senators is the concept of "monetary stability", the term more broadly than the care of

price stability, and it is therefore unacceptable that the "simple act" has defined the target

The Czech National Bank more closely than the Constitution, even though the new wording

fully complies with article 3. 105 of the Treaty on the European communities. Reason also

the view that the appointment of members of the Bank Board, pursuant to section 6 (1). 3 of the Act on the CZECH NATIONAL BANK

It is not in accordance with the Constitution, for it assumes exclusive jurisdiction

President of the Republic (as opposed to the appointment of the officers of the Supreme

the surveillance authority). In terms of § 5 para. 2 (a). (b)), it was in a discussion

stated that the allocation of the budget to these two parts is against

the independence of the Central Bank and is rejected by the European Commission as

incompatible with the Treaty on the European communities. The same is reflected

the unconstitutionality of section 47. Amendment of those provisions should be preceded by a change

The Constitution, which in the end was the view that was shared by the Government, as well as of the

the House has advanced a proposal to amend the law of the CZECH NATIONAL BANK and with the proposal of the amendment

Of the Constitution. Also, the provisions of § 35 (b). and the Act on the CZECH NATIONAL BANK) in the opinion of

Some Senators is contrary to the principle of the independence of the Czech National Bank and

It is not in accordance with art. 108 of the Treaty on the European communities. The discussions in the

The Senate met other provisions whose unconstitutionality President

the Republic claims, IE. § 1 (1). 3, and § 2, paragraph 1. 2 (a). (e) the Act on the CZECH NATIONAL BANK).

Finally, the Senate amendment to the Act on the CZECH NATIONAL BANK has rejected at a ratio of 26 to 11 votes

of the 48 senators present.



The Constitutional Court first proceeded to the examination of formalities

submitted by the proposal. The petition was filed by authorized by the applicant in accordance with section

64 para. 1 (b). a) Act No. 182/1993 Coll. as the conditions of admissibility

pursuant to section 66 paragraph 1. 1 Act No. 182/1993 Coll., in the present case have been

populated. The proposal was found to be permissible and Constitutional Court could further

progress in the meaning of the directives section 68 of Act No. 182/1993 Coll., the Court held,

the design of the contested provisions of the Act on the CZECH NATIONAL BANK was to act on the CZECH NATIONAL BANK

inserted by Act No 442/2000 Coll., This law was adopted and issued within the limits of

The Constitution laid down the competence of the Parliament of the United Kingdom and constitutionally

in the prescribed manner.



In the case of an application for annulment of article 1 para. 3 in the words of "and the Special

by předpisy1) "and section 2 (2). 2 (a). (e)) in the words "and in accordance with

special legal předpisů1) "conflict with the article. 2 (2). 3 and article. 98

Of the Constitution and article. 2 (2). 2 of the Charter of the Constitutional Court came to the conclusion that the proposal

It is not reasonable, and therefore, pursuant to section 70 para. 2 Act No. 182/1993 Coll.

It has refused.



As regards the conformity of the contents of the provisions of § 2 (2). 1 the first sentence in section 5 of the

paragraph. 2 (a). (b)) in the words "for the activities carried out in

the main objectives of the "and the word" draw up a draft operating and investment

the budget ", § 6 (1). 3, section 35 (b). and) and § 47 para. 2 to 4 of the Act on the CZECH NATIONAL BANK

with the Constitution, the Constitutional Court came to the conclusion that these provisions are not in the

accordance with the following provisions of the Constitution.



This section of the operative part of its decision, the Constitutional Court following

way.



In General, notes that the proposal for a President of the Republic is touching

the issue of the special status of the Central Bank in the constitutional system

democratic rule of law. The Constitutional Court as a basis for

evaluation of the merits test proposal takes in the literature already

expressed an opinion, according to which it can be from the article. 98 of the Constitution, inferred that the

The Constitution enshrines institutional guarantee of the existence of the Czech National Bank

as:



-the Central Bank of the State,



-responsible for the stability of the currency of the care function, IE. the Czech Crown,



-independent in the performance of the constitutional functions of the Executive Branch and legislation in the

to the extent that ensures the achievement of its main mission,



-equipped with a monetary-policy options for consideration in the choice of tools and

measures to achieve the objective,



-the Bank which carries out supervision over other banks.



Consequently, it is the duty of the State is to establish such a Bank, to establish its

authorities and establish their officers, adjust its position,

the scope of and as defined in the rules of procedure of the constitutionally, let it

as such, operate and protect her, where appropriate, judicial power before

neústavními [in contravention of article 1, article 62 (a), k) and article. 98 of the Constitution], and

unlawful interference into its activities on the part of the legislative and Executive

power (article 98, paragraph 1 and 2 of the Constitution).



In the overall perspective of the proposal it should be stressed that the constitutional

the Court was examining the constitutional entrenchment of the Czech national

the Bank knew that the law here follows the economic theory, and is therefore

the possible use of economic categories for the interpretation of the vague terms and

general clause in constitutional law. Politologickým the starting point

the constitutional design of the position of the Czech National Bank is then the theory of the Division of

power, according to which the most important defense against the natural tendency to

the concentration of power is the separation and mutual inspection of the highest authorities of the

State. Historical experience shows that the weakening of democracy caused by the

excessive strengthening of the authority of Government is possible, even on the way the monetary

handling. A classic example of overcoming the financial difficulties of Governments

through inflationary money emission in modern history has many

other variants. Reaction to this experience is the separation of decision making


processes of monetary matters from the Executive branch. This development begins with de facto

prevail in all democratic States with market economy.

The constitutional entrenchment of the separate status of the Central Bank, however, we find

only in the most recent constitutions. This group also includes the Constitution of the United

Republic and is considered in international comparisons positively evaluated.

When making a decision concerning that application, therefore, the Constitutional Court has to make way in the

the sense that the content of the folder the constitutional position of the Central Bank of the State

can be inferred directly from the Constitution itself, and so the show, when the legislature

empowered to modify details cannot go outside this content. There is no dispute about the

the fact that the activities of the Czech National Bank can intervene legally, how do

in the representation of the Chamber of Deputies, this Act shall not be

contrary to the content of the main objectives of the Bank.



This expansion of the number of "the pillars of the State power" is natural, and therefore

stand up counter arguments based on comparisons with older

"classic" constitutions, in which the independent bank does not write simply

because economic theory at a time when they have been accepted, even

enough to describe the risk of monetary manipulation Executive. This

expansion and changes to the konstitucionability (relevant and appropriate control

respective constitutional requirements) continues with economic and technological developments.

Similarly, it is possible to predict, for example, that in the nearest time we

a discussion on the need for constitutional some "High Media Council".

The importance of bulk power information resources is undoubted, and

Therefore, the development of the law must respond to real life. Also in the

in light of these general considerations de lege ferenda should be seen

the proposal under consideration.



The general criterion for the decision of the Constitutional Court on the issue of the constitutionality of

the relevant provisions of the Act on the CZECH NATIONAL BANK has been their compliance with the above

the provisions of constitutional modifications to the Central Bank of the State. The Functions Of The Constitutional

the Court is based on article. 83 of the Constitution, the constitutionality of its own means of protection

authorities of the type. Part of the constitutionality, in this respect, it is also

protection of the position of the Central Bank of the State in the performance of its main

the task, which is de constitutione lata care for the stability of the currency, according to the article.

paragraph 98. 1 of the Constitution, and the separation of its main organ-Bank Board-

from the immediate impact of political factors on the way specific edits

the appointment of its officers and members according to the article. 62 (a). k) of the Constitution, without

is this necessary cooperation between the excluded and the legislative and Executive

the power of the.



The Constitutional Court is of the opinion that an adjustment of the position of the Central Bank

of the State in the Constitution is based on the conclusions of the modern konstitucionalistiky end 20.

century, when gradually the conclusions about the need for regulation

the Central Bank's position not only in the Constitution of the Federated States, where

It was linked with the vertical division of competence between the Federation and its

the Member States, but also in the unitárních States, for the reasons given above.

Constitutional theory inspired by economic theory manifested itself in the fact that

increasing numbers of the Institute (article 99, paragraph 2, of the Constitution of Switzerland, article 111 of the Constitution.

Estonia, article. 227 of the Constitution of Poland, art. 373n. Colombia, article of the Constitution. 261n.

The Constitution of Ecuador. Article 53 of the Constitution of Croatia. 56 para. 1 of the Constitution

The Slovak Republic), which is regulated by the position of the Central Bank and the

function. Where it is not expressly enshrined in the constitutions (in the case of

most Member States of the European Union, which will apply

The Treaty of Amsterdam), these conclusions of the case-law.



In this respect also go some contractual documents the rights of European

Community (article 106/107 ex-Article Treaty establishing the European

the community), which are then reflected in the interpretation of "domestic"

constitutions (cf. commentary on article 88 of the Basic Law of GERMANY in:

Maunz-Dung: Grundgesetz Kommentar, Stand Juni 1998, p. 6). The amendment of the

the Act on the CZECH NATIONAL BANK's intention does not respect this fully ústavodárce. European law

in the article. 108 of the Treaty establishing the European Community (as amended by the

The Treaty of Amsterdam) explicitly stipulates that in exercising the powers and

the implementation of the tasks and duties conferred upon them by this Treaty, will not be

even the European Central Bank, nor a National Central Bank, nor any

Member of its organs with critical powers to request or receive

instructions from the institutions of the communities, from any Government of a Member State or from

any other authority. The Community institutions and the Governments of the Member States

undertake to respect this principle and not to seek to influence the members of the

bodies of the European Central Bank with the deciding powers or

the national central banks in the performance of their tasks.



The Constitution in 1992, responded to the knowledge of economic theory, according to which

is the success of the Central Bank of the State in ensuring the stability of the currency,

its exchange rate and control inflation influenced by her

the independence of the Executive Branch, which is usually once every three to four

years of being forced to apply for re-election before the voters. Something else are

Therefore, the intentions of the Government before the election, after the election, or in the middle of the electoral

period, and anything else is necessary, ensure the stability of the economic

growth, the need for borrowing in the implementation of long-term investment, etc.



Although the Constitution explicitly about the independence of the Czech National Bank does

However, the historical interpretation of the circumstances of the adoption of the Constitution (see above),

the teleological interpretation of the concept of "care about the stability of currencies" and a systematic

interpretation of the sixth head of the Constitution, where is the adjustment of the Czech National Bank separated

from the editing power of the legislature and Executive, it can be concluded that the purpose of

the anchoring of the Central Bank of the State in the Constitution at all, and in a special head

The Constitution in particular was the creation of a constitutional framework for the functioning of the

independently of the legislature and executive power. However, it is possible to point out the

the fact that already when discussing the draft law on State Bank

the Czechoslovak (Act No. 22/1992 Coll.), the content of which was taken up in the now

applicable law of the Czech National Bank, was at the hearing from the demonstration of dependencies

above inflation on the level of independence of the Central Bank.



Interventions in its position, although the Constitution permits (article 98, paragraph 1, sentence

the second in fine), but in the opinion of the Constitutional Court cannot be inferred that the

the law could accept a solution that would be a hit, or that it would be

can be interpreted as interference in the independence of the Bank in the performance of its

the main constitutional function. This would be the constitutional position of the Central Bank's adjustment

lost its originally intended purpose. The Constitutional Court is of the opinion

You cannot negate the constitutional basis, regardless of the legislature's mandate to

additional legislation, as is the case of fundamental rights in the

article. 4 (4). 4 of the Charter (the nature and meaning of the guarantee). This approach to

the relationship of the constitutional and legal regulation has already expressed in the report of 15 June.

2.1994, SP. zn. PL. ÚS 35/93 [collection of findings and resolutions of the Constitutional Court

(hereinafter referred to as "the decision"), volume 1, no. 7, p. 51; announced

under Act No. 49/1994 Coll.] and does not see any reason from him in the present case

depart.



The independence of any institution can be interpreted as the State that has

more aspects. Some of them have already been highlighted for discussion

the original Act No. 22/1992 Coll., on the State Bank of Czechoslovakia

(Federal Assembly of Czechoslovakia, 6th term, print no 1024).



In the case of the Czech National Bank so you can talk about the aspect of institutional

independence, which consists in its nepodřízenosti to the Government in ensuring the

the stability of the currency.



The Czech National Bank also fulfils the tasks as an administrative office. In this

the position is part of the organs of executive power. However, this does not apply to its

the main function of article 23(2). paragraph 98. 1 of the Constitution. In this function it must act

respect the independence of its decision-making, when it does not apply to article.

67 para. 1 of the Constitution of the height of the position of the Government in the system of organs of Executive

able to act of the Czech National Council No. 2/1969 Coll., on establishment of ministries

and other central bodies of State administration of the Czech Socialist Republic,

in the wording of later regulations. In terms of permissions, Czech

the National Bank has in fulfilling its main objectives (aspect

Instrumental), as to the choice of monetary policy instruments and the possibility of

monetary policy discretion in the choice of instruments and measures to

achieve the constitutionally enshrined targets.



Finally, it's independence in personnel or organisational sense, that

lies in the way the appointment and voidability Bank's management. The next

possible aspect of the independence of each institution's independence or, rather,

economic or financial autonomy which, prior to the amendment of the Act on the CZECH NATIONAL BANK

the budget of this Department consisted in the Bank from the State budget.

The amendment to the Act on the CZECH NATIONAL BANK in different intensity affects all of these

aspects. The Constitutional Court, however, deals only with those of them that have their

constitutional basis, so divergent legislation with them getting into

conflict.



With regard to individual provisions, whose cancellation is proposed, is

must include the following:



In the case of an application for annulment of article 1 para. 3 in the words of "and the Special

by předpisy1) ", in section 2 (2). 2 (a). (e)) in the words "and in accordance with


special legal předpisů1) ", the Constitutional Court could not identify with the

the view that it is an unconstitutional provisions of the Act on the Czech National Bank. You can have a

reservations about the provisions of the legislative rules of the Government (annex

Government resolution of 19 June. March 1998 No. 188), which are stored in the

the preparation of the legislation use this form of reference even where

It is constitutionally impossible to use other forms of legislation than it is a form of

the law (here, article 98, paragraph 2, of the Constitution). The possibility of intervention of the Constitutional Court is

However, in this case, given only in the case that the use of the podzákonného

the law actually occurred. But that in the present case

It is not, as the legislation is implemented by way of the law. It was therefore in this

part of the proposal as rejected nedůvodný.



The Constitutional Court found reason to believe the proposal to repeal section 2 (2). 1 the first sentence

the CZECH NATIONAL BANK Act, which provides that "the main objective of the Czech National Bank is

ensure price stability ". The provisions of article. paragraph 98. 1 second sentence

The Constitution, however, defines the main objective of the activity otherwise, such as care for the stability of the

the currency. This second that concept is wider, so on the way

the common law limits the scope of the main task of the Central

Bank of the State. This is from the perspective of the rule of law (article 1 of the Constitution),

from the point of view of constitutional changes and the completion of the prescribed method of constitutional

law (article 9, paragraph 1, and article 39, paragraph 4, of the Constitution), as well as in terms of

Article itself. paragraph 98. 1 of the Constitution is unacceptable. It is a similar situation,

that is expressly provided for in § 3 (1). 4 of law No. 309/1999 Coll., on the

The collection of laws and the Collection of international treaties under which the subordinate

legislation may be promulgated at the earliest on the day on which it is declared

the law, whose designs are issued; effectiveness of can take first

the date on which it takes effect, the law, to which they are issued. In

the relationship of the Constitution and the common law must be preserved by such a procedure

rather.



Only the Constitutional Court notes that it is a violation of the basic

hierarchical construction rules of the legal system, according to which the law is less

legal force must not contradict the law greater legal force. The Government,

to submit a proposal for amendment of the Act on the CZECH NATIONAL BANK, was this situation

aware of, because in the explanatory memorandum of its proposal (Chamber of Deputies, 3.

the electoral period, print no 537) in connection with the proposed new wording of paragraph 2 of the

expressly stated that "the amendment to the Act on Česká národní banka, therefore,

assumed to change the Constitution. ". This amendment to article. paragraph 98. 1 of the Constitution should be

made Constitutional Act, which the Government has submitted a proposal as part of the

the broader proposal (Chamber of Deputies, 3. term, print no. 541),

where the proposed wording in paragraph 15: "the Czech National Bank is the Central

Bank of the State. In its activity can intervene only on the basis of the law. ".

This proposal, however, was the constitutional amendments of deputies at its 25.

the meeting of 17 May 1999. May 2000 rejected in 2. reading, while the amendment to the

the Act on the CZECH NATIONAL BANK, complete with a number of other changes, finally was approved as

Law No 442/2000 Coll.



The President of the Chamber of deputies in this context, draws attention to the fact that

The Chamber of Deputies acted with the knowledge of having to deal with the necessary changes in

the activities of the Czech National Bank to the harmonization of legislation with the

regulations of the European Union, and for the amendment of the Constitution, the situation is trying to

make a change to the main objective of the Bank, was removed to a formal

unconstitutionality. About this malpractice is indicative of the words that he uttered

representative of the Government in the statement of reasons for that additional proposal on the

change to the article. paragraph 98. 1 of the Constitution (the Chamber of Deputies, 3. the parliamentary term,

print no. 694) to 28. a meeting of the Chamber of Deputies (těsnopisecká report on

28. a meeting of the Chamber of Deputies, p. 416), when he said that the purpose of

changes to the article. paragraph 98. 1 of the Constitution is "to get the Institute into line as, on the one

the side with the acquis, on the other hand with the Government's proposal

the Act on the Czech National Bank, respectively, with the amendment to this Act ". In

a similar spirit, the proposal is justified in the explanatory memorandum to the press No. 694.



Because the rule of law it is not possible to make the Constitution Additionally

adapting her contrary to the law, the Constitutional Court as the Court of

constitutionality of the protection authority under art. 83 of the Constitution to the conclusion about the need to cancel

the provisions of § 2 (2). 1 the first sentence for the conflict with the article. 1, art. 9. 1 and

article. paragraph 98. 1 of the Constitution as unconstitutional. In doing so, observes that, as regards the

need to adapt the legal order of the Czech Republic, the law of the European

the community, it is necessary to do so constitutionally Conformal manner. Czech

Republic may, in accordance with the preamble of its Constitution, to strive for the incorporation into

the family of European democracies in the first place, the rule of law

will respect its Constitution. Only then can seek compliance with the

the primary law of the European Communities (article 105, article 108/ex-Article 4(1).

107 Treaty establishing the European Community), since without respect to

its Constitution not for admission to the European Union.



Furthermore, the President has proposed to cancel the provisions of § 5 para. 2 (a).

(b)), the words "for the activities carried out in the main objectives of the assurance" and

the words "he shall draw up a draft operating and investment budget". Its

the arguments for abolition contacted § 47 para. 1 to 4 of the Act on the CZECH NATIONAL BANK.



The whole of the provisions of § 5 para. 2 (a). (b) the Act on the CZECH NATIONAL BANK), as amended, reads as follows

as follows: "the Board approves the budget for the activities carried out in

the main objectives of the assurance of the Czech National Bank and shall prepare a draft

operating and capital budget ". In the case of compliance with the proposal should, therefore,

the provisions of "the Bank Board approves the budget of the Czech national

the Bank ", so would be practically coincide with the original wording of Act No. 6/1993

Coll., on the Czech National Bank.



The provisions of § 47 para. 1 to 4 shall be added:



(1) budget, which refers to the activities carried out in

the main objectives of the Czech National Bank, the Bank Board approves.



(2) in the operating and investment expenditure managed by the Czech national

the Bank, according to the Chamber of Deputies approved the budget. The design of this

the budget prepares the Bank Board of the Czech National Bank and submitted to the

the President of the Chamber of Deputies, not later than 3 months before the start of

of the financial year.



(3) the refusal of the Chamber of Deputies the draft budget of the Czech National Bank,

the Bank Board is required to submit a proposal within 6 weeks, supplemented and

refined, as requested by the Chamber of Deputies.



(4) if the Chamber of Deputies ratified with the budget of the United

the National Bank for the financial year prior to the first day of the budget

of the year, the budget management in the time from the first day of the budget

year to the date of approval of the budget for this financial year, the revenue and volume

the expenditure budget of the Czech National Bank approved for the previous

the financial year.



President of the Republic, justifies the proposal to repeal this section by

the amendment removes the Bank made the Council permission to decide on one

of its competence and confers on it the Chamber of Deputies. This may, depending on

President of the Republic be significantly compromised performance

the main objectives of the Czech National Bank, according to the article. paragraph 98. 1 of the Constitution. According to the

his opinion, you cannot have the exact boundary between these two budgets,

for operating and investment budget shall include funding for the series

the important activities of the Czech National Bank, the prerequisites for the implementation of the

the main objectives, such as. the preparation of the monetary analysis, the issue of banknotes and

coins, shops with banks or cash management. Due to interference

other bodies of the Bank will not be able to meet this target. According to the article. 98

The Constitution can be made by law, provide more detail and interfere with its

activities, however, certainly not so that this led to a denial of the position of the Czech

the National Bank.



The Constitutional Court on this point of the proposal of the President meet with

regard to what has been stated above about the various aspects of

the independence of any institution. If the Constitutional Court came to the conclusion about the

the constitutional dimension of the independence of the Central Bank of the State, must provide

protect this independence, even in terms of its smooth functioning. (I)

If they had to pay for the President's argument that cannot be settled between the two

budgets keep accurate boundary, it should be noted that, even with just the pressure on

clearly separable operating and investment budget can be influenced

the performance of the main objectives of the Central Bank of the State. In other words, leaving

aside the question of the separability of the two budgets for the management of the same

institutions, as soon as even one of these budgets approved by someone

other than the Central Bank, will always be easier to be indirectly

influence the decision-making processes in the Bank, and so reduce its

independence.



The argument about the separation of the two parts of the budget in the annual reports on the

the management of the Czech National Bank is also possible, since this

way to her independence in the implementation of the main objectives of the

hit. Approval of the budget of the Chamber of Deputies

certainly not for every situation featuring the hit to its

independence. However, this option is not excluded because § 47 para. 2 to 4

the Act on the CZECH NATIONAL BANK has sufficient tools to the House


the House could push through his mind. This is getting into conflict with the article. 98

paragraph. 1 of the Constitution. Nothing has changed on that claim of the President of the Chamber of Deputies,

the President of the Republic in its proposal, questioned the ability of the Supreme

the inspection authority to control the management of the Czech National Bank,

If you are not on the activities in securing its main objective, and that the

should therefore not be questioned nor change in § 5 and 47 of the Act on the CZECH NATIONAL BANK.

The Constitutional Court in its established case-law highlights the linking of the Petite

design, not its reasoning, i.e.,. the arguments which the applicant States

[see the finding of 24 September. 5.1994, SP. zn. PL. ÚS 16/93 (collection

the decision, volume 1, no. 25, p. 190; promulgated under no. 131/1994

Coll.), award of 14 July 2004. 6.1994, SP. zn. PL. ÚS 20/93 (collection of decisions,

Volume 1, no. 33, p. 245; promulgated under no 141/1994 Coll.), find

of 29 April 2004. 11.1994, SP. zn. PL. ÚS 89/94 (a collection of decisions, volume 2,

finding no. 58, page 151)]. Therefore, the design of and assesses other aspects

the protection of constitutionality, than those referred to in the preamble of the proposal, it cannot

However, decide on the abolition of provisions other than those in the remedies

the proposal stated.



Similarly, the Constitutional Court decided to cancel the provisions of § 6 (1). 3 of the law

the Czech National Bank, which provides: "the Governor, viceguvernéry and other members of the

proposed by the Government. ". This provision is inconsistent with the prerogative

President of the Republic to appoint members of the Banking Council. 62 (a). k)

Of the Constitution. This means that the President of the Republic from the point of view of the constitutional

It shall act without restriction and there is bound to destroy the proposal nor any other

terms and conditions.



Having regard to the above mentioned reasons, the Constitutional Court was forced to cater to

application for annulment of paragraph 35 (b). and the Act on the CZECH NATIONAL BANK), which provides: "the Czech

the National Bank, in agreement with the Government lays down the inflation target and mode of the course

the Czech currency to foreign currencies. "." After the agreement "indicates that the Czech National Bank

has the initiative in the matter, when coming up with a proposal on this matter. Its proposal

but must submit to the Government and that it must or may not agree. Only

After obtaining the consent of the Government inflation target can be determined. The expression "after

the agreement therefore does not correspond to the concept of "the independence of the Czech National Bank.

Although the Government does not make it, however, the Government is building next to the Bank Board as

equal factors in determining the inflation target and mode of the course

the Czech currency. In this role the Government, however, the present constitutional article editing. 98

paragraph. 1 of the Constitution expressly does not count. This provision acts to

other constitutional adaptation as a lex specialis, so to him cannot

apply the General characteristics of the position of the Government in the article. 67 para. 1

Of the Constitution. The provisions of § 35 (b). and the Act on the CZECH NATIONAL BANK) is inconsistent with the

the instrumental aspect of the independence of the Czech National Bank and may

significantly affect even the existence of other aspects of its independence from the

the institutional perspective.



For the stability of the Czech currency, the announcement of the inflation target is vital.

It is therefore closely linked with the independence of the Czech National Bank. In the case that

inflation target must be promulgated, is legally different situation than if the

He didn't have to be declared. In the first case, the Government's position is far stronger,

as failure to agree this will be a Czech National Bank, which does not comply with

its constitutionally prescribed mission. This provision therefore undermines the space

for the performance of the main objectives of the Czech National Bank in a similar way as in the

the case of the approval of operating and investment budget of the Czech national

of the Bank. On the contrary, it is with him and other provisions of the Act itself

The CNB, when his section 9 provides that the Czech National Bank and the Bank Board is

in performing its tasks independent of the guidance of the Government, the President of the

the Republic, the Parliament, other government departments or bodies, territorial

authorities (paragraph 1) and that the matters relating to the foreign currency regime and

determination of the inflation target Czech National Bank shall consult with the Government and the

its request submitted on these issues report (paragraph 2),

which is a modification that is not with the principle of the independence of the Czech National Bank

When you watch her main objective in no way in conflict. The same is true for

section 11 of the Act on the CZECH NATIONAL BANK, which provides the Minister of finance or other permissions

the designated member of the Government to attend a meeting with the Advisory Bank

of the Council with the option to submit proposals for consideration. Similarly, he is entitled to

the Governor of the Czech National Bank or specified by the Lieutenant Governor to attend

with the voice of the advisory meeting of the Government. In the conditions of the State with the corresponding

senior officials of the political culture of the negotiations it is sufficient

a resource to find the relevant solutions. Otherwise, from the point

The Constitution must have a final word to the Bank Board, which contested the provisions of §

35 (b). and the Act on the CZECH NATIONAL BANK).



Therefore, in this case, the reasons for the repeal of this provision by

rather, that in this case it is a direct contradiction with art. paragraph 98. 1 of the Constitution,

where is still validly be enshrined as the main objective of the activities of the United

National Bank care about the stability of the currency. If this work is to be

The Czech National Bank independent (otherwise fulfil this objective cannot), it cannot

be bound to the agreement of the high authority of the Executive power, from which it is to be

otherwise constitutionally separate. Again, in practice, not in the determination of

inflation target and mode of the course of the Czech currency to foreign currencies occur to any

controversial situations. The Constitutional Court, however, has the aim of such protection authority

constitutionality to assess whether this adjustment in accordance with the respective constitutional requirements.

This compliance is not given here.



The President of the Constitutional Court:



JUDr. Kessler v. r.