271/1995 Sb.
FIND
The Constitutional Court of the Czech Republic
On behalf of the United States
The Constitutional Court of the Czech Republic held on 25 April. October 1995 in plenary on
the proposal of the Group of members of Parliament of the United Kingdom
the annulment of Decree-Law No 104/1994 Coll., which shall be designated as binding
part of the master plan of the great territorial unit of the Pilsen regional County
agglomeration
as follows:
The proposal is rejected.
Justification:
(I).
On 19 December. 6. in 1995 the Constitutional Court was served a group of 29 members
The Chamber of deputies of the Parliament of the United Kingdom made pursuant to art. 87
paragraph. 1 (b). (b)) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"). This
the proposal, MEPs seek the annulment of Decree-Law No 104/1994 Coll.
which was declared to be binding to part of the master plan of a large spatial
the whole of the Pilsen regional urban agglomeration. The approval of the zoning
the Government's plan has earmarked within the meaning of § 27 para. 1 Act No. 50/1976 Coll.
on urban planning and the building code (the building Act), as amended by
amended, (as for the conurbation of Brno, Ostrava
etc.).
As is clear from the proposal, members of the Group complains that the Government, in particular, the procedure
which to his decision, which was expressed in the form of a resolution of the Government,
grow up. Above all, argues that other changes to the zoning plan, originally
the Government approved in 1988 and later amended in 1991 and 1994,
should be discussed in a way that the § 21-25 for the building
law, especially with the district authorities and municipalities whose territory is
should changes apply to you. If not, the Act of approval of Government
illegal. The next objection is directed against the Ministry of
economy over the publication of the draft land use plan the appropriate
in a way, that were not taken into account the comments of the public and that the Government
discussed and approved the proposal without the opinion of the Ministry of the
environment, thus in violation of the law. In the fact that citizens were deprived of their
the options float comments, plaintiffs also breach the FRO
fundamental rights according to art. 35 para. 1, the Charter of fundamental rights and
freedoms ("the Charter"). Representation of the members of Parliament have tasked the Deputy
JUDr. George Vyvadila. The one at the hearing on 25 April. 10.1995 his proposal
in that direction, that the reason for the filing is that part of the regulation, which defines the
Corridor D 5 motorway in the area of the city of Plzeň, and further stated that insists on
the final variant of the solution in a lawful manner, and that has not been discussed in the
Executive power your procedure in this matter violated the article. 2 (2). 2 of the Charter,
Since State power can be exercised only within the limits set by law, and
in a way, that the law provides.
The Constitutional Court has asked in terms of section 69 of Act No. 182/1993 Coll., on the constitutional
the Court, the Government of the Czech Republic, as a party to the proposal in the
the statutory time limit. In the observations of the Government, signed by the Minister and
the head of the Office of the Government of the Czech Republic Dr. Igor German is mainly
argued that the proposal is directed almost exclusively against the procedure when taking
the land use plan, or against other acts that preceded his
approval, but I can't think of a contradiction with custom text is Government Regulation
by law. Only the custom text may be subject to the girlhood design
the competence of the Constitutional Court. However, when challenged by the process of acquisition and
approval of territorial planning documentation, by the authorities of the
State administration in the field of spatial planning, then this executive branch activity
the jurisdiction of the Constitutional Court are not subject to.
In other points, then the representation of Government more closely engaged in the taking of evidence,
that the information on which the application is based, are not complete and accurate.
In particular, the Government argues that the statutory consultation of the territorial authority
planning, in this case, the Ministry of economy, has made. Also
This authority requested the opinion of the Ministry of the environment
According to the Czech National Council Act No. 244/1992 Coll., on environmental impact assessment
the environment, and this opinion was issued after specified public
consultation. In conclusion, therefore, the Government proposes that the Constitutional Court
It has refused.
The Government also sent the constitutional court record of the proceedings of the meetings of the Government of
January 6. 4.1994, under point 5 stated that the Government discussed the proposal
presented by the Ministry of economy, and adopted resolution No. 177. Also
the Government tabled this resolution shows that the Government has approved the
Amendment binding part of the master plan of the great territorial unit
The Pilsen regional agglomeration of the settlement in the management of the route the highway D 5
Prague-Plzeň-Rozvadov highway in the area and at the same time approved a regulation laying
shall be designated as mandatory part of this master plan. Resolution of the Government is
provided with a verification clause of the.
At the hearing on 25 April. 10. in addition, the 1995 government officials said that, in the
the present time is a variant of approved and proclaimed by the contested regulation
Furthermore, the Member States and then discussed with the Ministry of
environment. In an effort to minimize the adverse effects of lead Hill Valik
tunnel and not a notch. Do not deny that negotiations were very long and very
problematic, the petitioner, however, proceeded according to the law and
always on the harmonisation of conflicting interests.
28 June 1999. 6.1995 was further to the Constitutional Court delivered a request submitted by the civil
the Association for protection of the nature Department of the Val Hill near Pilsen. The proposal was
marked as a proposal to repeal Decree-Law No 104/1994 Sb.
stipulated that the appellant is this Administration attaches to the draft members
the same case and is considered this for intervention. This proposal
the judge-rapporteur has rejected a resolution of 17 December 1999. 8. in 1995, according to the
the provisions of § 43 para. 1 (b). d) Act No. 182/1993 Coll. as proposal
brought on by the body apparently unauthorized because it is beyond any
doubt that the civic association is unable to submit a proposal for the cancellation of another
legislation other than together with constitutional complaints and conditions
referred to in section 74 of law No. 182/1993 Coll., the provisions of § 69 of this Act
then the intervention does not know (party to the proceedings is, in addition to
of the applicant, only the person who issued the legislation).
II.
The proposal attacks the Government Decree promulgating the mandatory part of the
the plan of the great territorial unit. To do this, it should be noted that according to the valid
the legislation--the building Act, as amended--
territorial planning documentation processes in three stages--for large
territorial units, settlement services and zones, without, however, construction law, these
concepts closer defined. Territorial planning documentation major geographic
units is subject to compulsory assessment of the impact on the environment by
the Czech National Council Act No. 244/1992 Coll. regarding the categories
documentation, the law distinguishes between the territorial zoning plan, forecast and territorial
project. The zoning plan in case it is, is to address the
function definition and the arrangement of the areas and to lay down the basic principles
the Organization of the territory, the procedure for their use and conditions of construction.
Documentation discusses the authority that it took-over-
the case of the Ministry of economy. Terms and conditions of discussing
the design of spatial planning documentation of the § 21-25 for the building
the law, the approval of then regulated in sections 26 to 28 of this Act. About
that part of the plan is binding and that the indicative, is decided by the approver. In
the present case, the approval of the Government of the Republic, and reserving it
According to § 27 para. 2 the building Act. With regard to the binding nature of territorial
planning documentation, is particularly relevant to the provisions of § 29 para. 2
the building Act, according to which the competent authority, i.e. the Government or
the Municipal Council, the first zoning plan approved and only then its
a binding part of the announce. If the plan was approved by the Government, it does so
by regulation.
In the present case, therefore, the Government as the authority in land-use planning first
decided in resolution No. 177 dated June 6. 4.1994 about the changes to the land use plan,
as regards the keeping of the route the highway D 5-Prague-Rozvadov Highway, in an area of the city
Pilsen. Subsequently, the Government, by Regulation No 104/1994 Coll. announced
a binding part of this plan. Covered by the proposal, therefore, is this
the Government, which has particular notification. Specifically, then,
on the basis of more precise design, the part that relates to the management of Highway
(D) 5 in the area of the city of Pilsen.
III.
The Constitutional Court had to address the issue of primarily out of character is
the contested regulation, and if at all prescriptive in nature. After consideration of all
the fact it took the Constitutional Court considers that the contested regulation of the Government
the normative act is, but only in that part (annex # 2)
contains the definition of public utility buildings, for which the event. possible
land, buildings and rights to them to expropriate (section 108, paragraph 3, of the construction
of the Act). While it is not known in advance, out of the number of entities may
the implementation follows specified public utility buildings immediately
touch. In such buildings, the contested regulation not only declares a corridor
the D 5 motorway, but also some other structures (e.g., specifies the location of the main
landfills of solid municipal waste, other communication etc.).
According to the provisions of § 68 para. 2 Act No. 182/1993 Coll. belongs to the constitutional
the Court in the proceedings on the revocation of laws and other legislation of judge
the content of the legislation in terms of its conformity with the constitutional requirements,
the international treaties referred to in article. 10 of the Constitution and also in the present case, the
laws and determine whether legislation was adopted and issued within the limits of
The Constitution laid down the competence and constitutionally prescribed way.
As regards the content of the contested Decree, the Constitutional Court
the view that its task is to determine whether this legislation is in accordance
with the Constitution, constitutional law, contracts, according to the article. 10 of the Constitution, and in this
the case also with the laws. If you meet these assumptions, and the Constitutional Court
notes that the met were, is to assess the factual accuracy and effectiveness
the Government's decision, which was approved by the zoning plan, outside the competence of
Of the Constitutional Court. Urban plan itself is a measure aiming to
going forward, therefore, it is the norm for the future development of the field and an expression of commitment to
harmonization of public interests with the interests of vested. We cannot agree with
by this Act the Government interferes with the autonomous communities competences as
approval of planning documentation is self-governing, but
devolved [section 36, paragraph 3, of Act No. 367/1990 Coll., on
municipalities (municipal establishment)]. It is common ground that, in addressing these complex
questions can be difficult to found a solution that will be free of any
contradictions and comments. It is for the Executive Branch to weighing all the pros and
against the final decision issued, and there is no doubt that the Constitutional Court
It is not for this sphere of executive power to intervene. The responsibility of the Government
the potential negative consequences of such a decision is the responsibility of the
political, rather than legal responsibility.
Another aspect that the Constitutional Court judge within the meaning of § 68 para. 2
the law on the Constitutional Court, it was whether government regulation has been adopted and
within the limits of the Constitution provided for issued and constitutionally prescribed
way. On the basis of documents submitted by the Government does not have the Constitutional Court
doubt that, in adopting resolution of the Government concerned was
complied with the provisions of article. paragraph 76. 2 of the Constitution. According to the article. 78 of the Constitution, the Government is
authorised to issue regulations for the implementation of the law and its limits. The Government of the
Therefore it does not need an explicit delegation of the relevant law, regulation, however,
can not yaw legal limits--cannot, therefore, be praeter legem.
In other words, it must keep within the law, that are either defined
specifically, or arise from the meaning and purpose of the Act. In general it can be said that the
completely free account executive, however, never has, as always, is limited
The Constitution, international treaties and General legal principles. Of these
then the Constitutional Court does not have views, doubts that the Government Regulation No.
104/1994 Coll. was issued within the limits of the Constitution laid down the competence of Government,
as it is for the approval of this level, and this category of territorial
planning documentation is entitled to. It is equally empowered to
a binding land-use plan of a large part of the local authority has declared as
Regulation of the Government.
The last question, the Constitutional Court had to deal with was whether the
legislation was adopted by the constitutionally prescribed way. When
the solution of this question then the Constitutional Court had to first assess whether the
This assessment also falls within the review of the progress of administrative authorities in the
the acquisition, the approval and changes to the planning documentation, in particular
the case, therefore, comply with all the provisions of section 21 to 31 of the building Act.
The answer to this question is that the following broad examination of Constitutional
for the Court. Constitutionally prescribed way to the adoption of
regulation means the Constitutional Court drafting procedures
contained in constitutional law, where applicable, the procedures set out in the other
the law, if they are distributed by the constitutional principles. Discussion of the legal
Regulation within the system of State administration bodies, however, to review
the powers of the Constitutional Court does not fall if it does not interfere with constitutionally
guaranteed rights. The result of the activities of the Executive branch was the resolution of the
the Government and subsequently the Government Decree promulgating mandatory
part of the approved land use plan. The criterion of constitutionality of this regulation
the Government can be, in the opinion of the Constitutional Court only, whether regulation
aren't the purpose and the meaning of the building act as a whole. Such a contradiction, however,
the Court did not and could not, therefore, regard the opinion of the appellants, or that
the Government has infringed article your procedure. 2 (2). 2 of the Charter. As well as the constitutional
the Court did not find that the alleged violations of the basic rights under the
article. 35 para. 1, 2, of the Charter, i.e.. the right of every person to a favourable living
environment and to timely and complete information on his condition. These rights are
According to article. paragraph 41. 1 of the Charter to claim only within the limits of laws that
implement these provisions. To do this, the Constitutional Court States that the right to
a favourable environment is undoubtedly the law with relative content and
It should be interpreted from many aspects, and always taking into account the specific
things. In the case under consideration then the Constitutional Court did not find it.
For these reasons, the Constitutional Court on the proposal of the Group of members as decided
It is stated in the operative part.
The President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.