In The Matter Of An Application For Annulment Of Decree-Law No 104/1994 Coll.

Original Language Title: ve věci návrhu na zrušení nařízení vlády č. 104/1994 Sb.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=43314&nr=271~2F1995~20Sb.&ft=txt

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.