119/1994 Coll. The Plenum of the Constitutional Court of the Czech Republic on behalf of the Czech Republic The Czech Constitutional Court ruled in plenary on 26 April 1994 on the proposal of the head of the District Office in Teplice on the repeal of Article III, paragraph. 6, Article IV. 1 and Article V, paragraph. 1 generally binding ordinance of the city of Brisbane to maintain order in the management of apartments owned by the city, adopted on 10 December 1992 as follows: The article III paragraph. 6, Article IV, paragraph. 1 and Article V, paragraph. 1 of the Decree of Duchcov to maintain order in the management of apartments owned by the city of On 10 December 1992, abolished the date of publication in the Collection of Laws. Reason 1. He 1. 10.1993 he received the Czech Constitutional Court proposal of the head of the District Office in Teplice on the repeal of Article III, paragraph. 6, paragraph IV. 1 and Article V, paragraph. 1 generally binding ordinance of Duchcov to maintain order in the management of flats owned by the city, adopted by the Municipal Assembly in Brisbane on 10. 12.1992. Thus adopted ordinance was adjusted by the town council dated 25. 3.1993. The final version of the decree is as follows: Decree Duchcov Municipal Council to ensure order in the management of flats owned by the city, Brisbane City Council approved the ordinance. Article No. I Basic Provisions 1. This Order applies to residential and commercial spaces, which are the property of Duchcov and are managed by property management center (the lessor). Defines the rights and responsibilities of landlords and tenants in the acquisition and use of the apartment. 2. determine the rules for the maintenance of order, the management and protection of housing and determines sanctions for violations of these rules. Article No. (II) landlord Obligations 1. The Lessor shall forward the apartment (or commercial space) tenants based on their written request reinvestigation and after accuracy. 2. The lessor concludes with the tenant lease. This agreement defines the rights and responsibilities of landlords and tenants, rents and charges associated with the use of the apartment. 3. The Landlord is obliged that inform the tenant in writing of any change regarding the paragraph. 2. Article No. III of the Obligations of the tenant 1. Request for apartment served in writing on the appropriate form. 2. The applicant becomes a member of the apartment and the tenant only after signing a lease with the landlord. 3. the Lessee shall pay The Lessor the rent and charges relating to the entitled in the agreed amount, agreed intervals and in the manner specified in the contract. 4. The Lessee shall be used only for residential purposes. If the apartment is used for other purposes, such as for business or for providing private accommodation services are obliged to obtain the approval of this activity landlord. 5th Tenant shall not, without the consent of the landlord to take another lodger. 6th lessee is obliged to allow the lessor that inspect the technical condition of the apartment. Further, the tenant is obliged to allow the lessor that carry out the necessary repairs of housing stock in the rented residential premises. Article No. IV application of sanctions for non-compliance with the contract 1. Cancellation of the lease agreement is possible: a) If the tenant fails to meet regulations under para. 3 of Article III-does not pay the prescribed rent and fees associated with using the flat for more than three months, (b)) in re violation of house rules and principles of civil coexistence, failure to comply with the basic obligations arising out of the house rules (such as the cleaning of common areas. within the agreed range, noise curfew, etc.), c) for not complying with a lease within the meaning of the paragraph. 4 and 5 of Article III on the use of the apartment for other purposes as well as for the provision of staying with strangers without the lessor's consent, d) the deliberate damage that furnishings and common facilities such as an interior and exterior building surfaces, elevators, basements, laundry rooms and other accessory apartment. In the case of cancellation of the lease agreement will be applied that judicial notice ', but will be used in section 5 of the Civil Code No. 47/1992 Coll. Canceling the rental agreement, the tenant loses the right to use the apartment with the fact that the lease of the apartment will be finished within 30 days after sending written notice. Failure to do so alone, proceed to the official eviction to the flat lower category or may be evicted without compensation. 2. If a citizen occupancy in an apartment without a proper lease agreement will be officially evicted. 3. Procedure official eviction: draft an official eviction served Urban housing fund after approval by the city council is in the presence of the Municipal Police, State Police and representatives of the Municipal Administration of housing stock. Article No. l in Final provisions. The provisions of the Administration of city property from 1 1st 1993 expire lease agreement between the tenant and the District housing now Teplice. Urban housing fund on the same day will conclude with a new tenant contracts. 2. This ordinance does not preclude that any transgressions were punished for other such provisions. Penalties Code, or as an offense against the decree about cleanliness and order in the city Duchcov. 3. Checking compliance with this Decree deal done and responsible workers managing the property of the city and the Metropolitan Police. 4th City Council approved this ordinance at its meeting on 10. 12.1992 Decree shall enter into force on 1 January 1st, 1993. Head of the District Office in Teplice, decision of 14 1, 1993 according to § 62 of the paragraph. 1 of Law No. 367/1990 Coll., on municipalities, as amended, suspended the decree stated. In his opinion, given generally binding ordinance is not in accordance with § 16 para. 2 of Act No. 367/1990 Coll., On municipalities, as amended, as generally binding regulations must be in compliance with the laws and generally binding legal regulations issued by the central authorities to the government to implement them. Furthermore, in his opinion, said generally binding ordinance is not in accordance with provisions. section 680, paragraph. 3, § 711 par. 1 of the Civil Code. Duchcov municipal council in his memorandum dated 25. 2. the 1994 took on the original text of the decree, only the order of 25. 3. the 1993 changed the contested ordinance so that in case of cancellation of the lease agreement will be applied that judicial notice ', but will be used in section 5 of the Civil Code. Its position is justified by the need to carry out fire prevention inspections, then by the very wording of lease contracts, the slowness of legal proceedings and the fact that it simultaneously II and new lease agreement. Of note in Duchcov dated 22. 4. the 1994 shows that given generally binding ordinance of Duchcov was approved at a meeting of city council on 10. 12.1992, the required number of votes. On board the official decree was posted on 11. 12.1992, and removed on 31. 12.1992. The amendment that Article IV, paragraph. 1 decree was posted on the notice board on 15 3rd, 1993 and removed on 1. 4.1993. The above then follows that the ordinance was passed in a constitutionally prescribed manner (§ 68 para 2 of Act No. 182/1993 Coll., on the Constitutional Court). According to § 44 para. 2 of Act No. 182/1993 Coll. The Constitutional Court of the Czech Republic with the consent of the parties waive a hearing, unless such a hearing is expected this to clarify the matter. Because the assessment of this matter can be referred to the cited provision, the Constitutional Court requested the statements from the parties that consent and waive this hearing. This agreement was the head of the District Office in Teplice and Duchcov granted. 2. In a separate municipal jurisdiction, are currently in the municipality may issue generally binding regulations include the management of municipal property (§ 14 para. 1 point. (B)) of the Act No. 367/1990 Coll., On municipalities, as amended). With the regard that Article III, paragraph. 6 of the contested ordinance provides for the tenants of apartments obligation to be accessible without legal basis. The lessee is required to be, and therefore their privacy accessible only by a decision of the competent authorities designated by law (article 12 paragraph 3 of the Charter of Fundamental Rights and Freedoms). The relationship between landlord and tenant relationship is based on civil law leases (article 685 BGB). It can not therefore replace it as in this case generally binding ordinance of the municipality, which is thus replaced by a public civil relationship relationship that thus arises between the municipality and the tenant. The judgment under Article IV, paragraph. 1 of that decree then sets out the reasons for which it is possible to cancel the lease agreement. Those reasons are clearly in conflict with section 711 of the Civil Code, which sets out an exhaustive list of reasons why it is possible to terminate the lease agreement. In addition, the tenant is protected by testimony "is possible only with the consent of the court. Regarding Article V, paragraph. 1, the increased protection of the home expressed in the Act by the fact that the tenant is protected in cases of change of ownership of the apartment. In this case it is then necessary that apply the general provisions of § 663 and 723 of the Civil Code of the lease. Under these provisions may change when the property owner to terminate the lease contract only tenant. Would changing the owner there is a transfer of rights and obligations on the basis of universal succession. It can not cancel the lease agreement generally binding ordinance. In this context it should be noted that under Article 104. 3 of the Constitution of the Czech Republic, the council can within the limits of their jurisdiction issue generally binding regulations, while enabling provision contained in that article of the Constitution of the Czech Republic applies to the jurisdiction issue generally binding ordinances under the independent jurisdiction of the municipality. If the application is part of the public power communities also unilateral establishment of rights and obligations of individuals and legal entities, the municipal jurisdiction is limited by Article 2 par. 4 of the Constitution of the Czech Republic, and Article 2 par. 3 and Article 4, paragraph. 1 of the Charter of Fundamental Rights and Freedoms. Under Article 4, paragraph. 1 of the Charter of Fundamental Rights and Freedoms, the obligation may be imposed only by law and within its limits as well as Article 2, paragraph. 4 of the Constitution of the Czech Republic and article 2, paragraph. 3 of the Charter of Fundamental Rights and Freedoms, no one should be forced to do what the law does. The municipality therefore may issue generally binding regulations, the contents of which are legal obligations only on the basis and within the law. The issuance of the ordinance, the contents of which are legal obligations of the municipality is therefore justified only in case of express statutory authorization. Duchcov decree dated 10. 12.1992 is therefore in terms of article III, paragraph. 6, Article IV, paragraph. 1 and Article V, paragraph. 1, in contravention of Article 2 par 4, Article 104 Para. 3 of the Constitution of the Czech Republic, as well as Article 2 par. 3 and Article 4, paragraph. 1 of the Charter of Fundamental Rights and Freedoms, section 14 para. 1 point. I) and § 16 para. 2 of Act No. 367/1990 Coll., on municipalities, as amended, and in addition to the provisions of section 680 this 716 of Law No. 40/1964 Coll., the Civil Code, as amended. The Czech Constitutional Court therefore decided that the provisions of Article III, paragraph. 6, Article IV. 1 and Article V, paragraph. 1 generally binding decree of Duchcov dated 10. 12.1992, abolished the date of publication in the Collection of Laws. Chairman of the Constitutional Court of the Czech Republic. Kessler vr