136/1997.



FIND



The Constitutional Court of the Czech Republic



The operation of nevýherních machines is carried out on the basis of the trade

permissions. For this operation mode of Act No. 455/1991 Coll., on the

trades. Because the Act does not contain for this

the activities of the legal mandate for the municipality, the municipality may not separately regulate

the operation of the digital and light devices and gaming devices.



The exercise of control over this activity is governed by Act No. 553/1991 Coll.,

State control. Or this law, including the law No. 575/1991 Coll.,

of commercial offices, does not have a mandate for the Government to issue

generally binding decrees of distribution checks trade

surveillance and monitoring of business.



On behalf of the United States



The Constitutional Court of the Czech Republic held on 4 December 2002. June 1997 in plenary on

the design of the head of the District Office in Šumperk to cancel generally binding

Ordinance of the town of Sumperk No 41/96 of 16 December 1991 December 1996 on the control of

digital and lighting devices and gaming devices in the territory of the city

Šumperk



as follows:



I. Operative Part



Ordinance of the town of Sumperk No 41/96 of 16 December 1991 December 1996 on the control of

digital and lighting devices and gaming devices in the territory of the city

Šumperk is repealed on the date of publication of this finding in the statute book.



II. Justification



1. the head of the District Office in Šumperk submission of 2 July. 4, 1997,

that occurred to the Constitutional Court on 7 December. 4. in 1997, filed a proposal to repeal

legislation generally binding decrees of Šumperk No 41/96 of

16 December 2002. 12.1996. This proposal adds submission of 28 June. 4.1997. In

his proposal drew the issue generally binding decrees belongs to

separate the scope of the city Šumperk, but because it determines the legal and

natural persons acting in the cadastre of the city of Šumperk legal obligations,

i.e.. the location and operation of digital and light devices and gaming

the device only in separate premises-gambling, a prohibition of entry into the

the game room in the days of school pupils to 16.00 hours and the need for

creation of a separate room that only as a result of the location of the nevýherních

machines in already existing premises, or any part thereof, shall be as

change in the use of the construction of the building Office, reported that a decision thereon

or order a new purpose, the town of Šumperk in its General

binding Decree (OZV) No 41/96 beyond the law, since it is

get into conflict with the provisions of section 17 of Act No. 367/1990 Coll., on

municipalities, and section 17 and section 37 paragraph 2. 1 and 2 of Act No. 455/1991 Coll., on the

trades (hereinafter referred to as "the Act"). The control and

supervision over compliance with the PA SYSTEM was entrusted to the staff of the three trade unions

the municipal office and city police force with the right to impose fines in the block

violations of the decree or the thing forward to control the přestupkovému Department

The municipal office in Šumperk.



The release of OZV No 41/96 of regulating digital and lighting apparatus and

gaming devices, as follows, and the appellant was indirectly a breach of

the provisions of article. 26 paragraph 2. 1 and 2 of the Charter of fundamental rights and freedoms.



2. The Text of the Decree suspended the:



Decree No. 41/96



on the regulation of digital and light devices and gaming devices on the

the town of Sumperk



Town Council in Šumperk pursuant to Act No. 367/1990

Coll., on municipalities, as amended, § 16 para. 1, § 17 and 36

paragraph. 1 letter f) approved at its meeting of 16 November 2004. 12.1996 this

generally binding Decree.



Article. 1



The purpose of generally binding decrees



General binding Decree lays down the owners or lessees of non-residential

space on ^ 1 placement and operation of digital and light

devices and gaming devices (hereinafter referred to as non-winning slots), on the basis of

Trade license ^ 2 only in separate premises ^ 3-

amusement arcades.



Article. 2



The definition for nevýherních machines



To secure public order ^ 4 is the operation of nevýherních machines

subject to their located in separate premises-room. ^ 5 entry to the

the game room is in the days of school to 4 pm. disabled pupils in

the time of completion of compulsory schooling.



Article. 3



Inspection and surveillance



Control and supervision over compliance with the generally binding decrees are

commissioned personnel of the Municipal Office of the Department of Social Affairs, housing

the economy, education and health care and the city police. Violations of the

the Decree fixes on the spot either city police block a fine, or

infringement Department of the municipal office in Šumperk. ^ 6



Article. 4



The effectiveness of the



This generally binding Decree shall enter into force on 1 May 2004. January 1, 1997.



3. the Constitutional Court, in proceedings for annulment of the Act or other legislation referred to in

the provisions of § 68 para. 2 of the Act. No. 182/1993 Coll. first must determine whether the

legislation was issued within the limits of the Constitution laid down the competence

and in the prescribed manner.



Of the sent documents, it was found that the town of Sumperk OZV No. 41/96

It was adopted the requisite number of members of the City Council in Šumperk

16 December 2002. 12.1996 and came into effect the day after the airing of the 1. January 1, 1997.

Head of the District Office in Šumperk himself confirmed that OZV No. 41/96,

adopted and published in the prescribed manner.



On 25 April. 2. the 1997 District Office in Šumperk under REF. 179/97-Bc suspended

the performance of the above and asked the Mayor of the city of a PA SYSTEM for the submission of this

suspension of the performance of Municipal PA SYSTEM for reconsideration a corporation in

Sumperk. On 12 June 2006. 3. the 1997 special session of the Town Council

in Šumperk disables OZV No. 41/96 and took on its resolution No 1071/96

of 16 December 2002. 12.1996. This was done by resolution No 1284/97.



4. The Constitutional Court had to first address the question of whether it really belongs

the issue in question in a separate scope of a PA SYSTEM, as reported by myself

the appellant, which with its position deviated from on-demand views

The Ministry of Interior of 31 July. 1. in 1997, according to which "the village is not in the

individual shall be entitled to issue a decree that would regulate the

the operation of the gaming and slot machines ".



In the article. 1 OZV itself no 41/96 States that the regulation applies to the operation of

the activities of nevýherních machines on the basis of trade licence. For

the activities of these nevýherních machines which legal regime provided for

in the Cust. No. 455/1991 Coll., on trades, as amended.

This law, however, does not have any legal authority to municipalities so that they can

separately regulate the operation of digital and light devices and

gaming device.



The town of Sumperk, in its Decree refers to the provisions of section 17 of the law on

municipalities, in conjunction with the provisions of § 14 para. 1 (b). about) of the same law,

concerning the scope of the municipality in the field of local public affairs

all right. The amendment to the Municipal Act, the establishment and infractions, IE. Act No.

279/1995 Coll., according to the explanatory memorandum was issued in order to allow the

municipalities to make effective measures according to local conditions against the negative

the consequences of prostitution. Therefore, it cannot be under the subsumovat

the power of municipalities to issue for the regulation of all activities of the PA SYSTEM, which could

to disrupt public order and especially not such activities that are

regulated by separate legislation. OZV itself no 41/96 of

Šumperk in the article. 1, which establishes the purpose, objective, OZV public

order.



Because it is a legal regime to regulate the activities, laid down in

a special law (the trade) that the village without authorising the local editing

These activities release does not fall into the scope of the PA SYSTEM separate

of the village.



As has already been held by the Constitutional Court (PL. ÚS 5/93), under the provisions of

§ 43 para. 1 (b). (d)). No. 182/1993 Coll., on the Constitutional Court, is

the proposal "clearly an unauthorized person" the reason for its refusal. To be manifestly

unauthorized person to submit a proposal should be considered as the applicant only

cases where the assessment of locus standi produces no

the doubt. Assessment of individual municipalities, also due to the

the opinion of the applicant, to the Group of bezpochybnosti cannot be marshaled, and

Therefore, the Constitutional Court had to deal with the proposal.



In his article. 1 the town of Sumperk OZV No 41/96 lays down the owners or

the obligation to place tenants and operate digital and lighting apparatus

and slot machines only in separate premises-gambling. In the article. 2,

When traffic is nevýherních machines subject to their position in the

a separate establishment-the game room is a reference to the Act No. 50/1976 Coll., on the

land use planning and building regulations, as amended, when it is necessary to

perform construction inspection, or rekolaudaci rooms for this purpose.



The above provision is contrary to section 37 of the Trade Act,

because the place and operate non-winning machines directly from the law on

the basis of the trade licence and the consent of the village came into account

only in the case of placing such vending machines outside the establishment, and before

Announcing changes to the Trade Office.



Section 17 para. 1 the Act. No. 455/1991 Coll., on trades, in

as amended, defines the space, in which the business is operated. For

an establishment for the purposes of the Trade Act is regarded as the stand and

a similar device. The town of Šumperk, it would be entitled to a PA SYSTEM to regulate the


operate the equipment to meet the needs of the citizens in the premises, which

are owned by the city. Because there is no legal warrant to do so, it cannot

However, the responsibilities of all owners or tenants of non-residential

space, where they are located or operated digital and light

instruments and play equipment on the basis of trade licence in the territory

the town of Šumperk.



Act No. 455/1991 Coll., on trades, as amended, section

60A States that "trade control carried out within its scope of

the business offices that monitor whether and how obligations are met

set by the trade law, and how compliance with the obligations laid down

trade law, the provisions of the special acts relating

the skilled trades. Under section 60b control activities in the framework of the

workers perform professional business offices. To

the control may be invited representatives of other institutions. The performance of this

checks are governed by Act No. 553/1991 Coll. on State control. No

of these laws, including law No. 575/1991 Coll., of the commercial

the offices also has no mandate for the Government to issue

generally binding decrees in the field of expanding control of trade

business and supervision as it made the town of Šumperk in the article. 3 your OZV No.

41/96.



The Constitutional Court in its established case-law, deduced that the enumeration of separate

the scope of interpretation in the sense of legal authorization to issue a PA SYSTEM

should be interpreted restrictively. Further deduced that in the interpretation of § 14 para. 2

the law on municipalities to individual municipalities belongs to only you

the matters which, by their nature, affect territorial self-governing units

(the economic, cultural and social development, the protection and creation of the

environment), if they are not assigned to other departments of special laws as

performance of State administration. So should be interpreted and amended

the provisions of § 17 with his reference to § 14 para. 1 (b). o) of the Act on

municipalities, as the place and time for the operation of digital and light

slot machines is handled by the trade law. Therefore, this cannot be

action to limit or even prohibit it OZV on certain publicly

accessible locations in the village. There would be to restrict business

things to people and their personal rights.



The Constitutional Court, although it was aware of the beneficial efforts of the town of Šumperk,

He came to the conclusion that the release of the city Šumperk OZV No. 41/96 there was a

infringement of article 81(1). 26 paragraph 2. 2 of the Charter of fundamental rights and freedoms, as the only

the law may lay down the conditions and limitations for the exercise of certain professions or

activities. Furthermore, the provisions of article has been violated. 4 (4). 1 and article. 2 (2). 2

The Charter of fundamental rights and freedoms, as well as the article. 2 (2). 3 of the Constitution.



Therefore, the Constitutional Court upheld the Ordinance of the town of Sumperk and design No 41/96 of

16 December 2002. 12. the 1996 set aside the date of publication of the finding in the journal of laws.



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.



III. Different views



A different opinion of the judges. Miloš Holecek, JUDr. Paul

Varvařovského and JUDr. Eva Zarembové



In the grounds of the award, accepted by the majority of the members of the Assembly, which shall be repealed;

Ordinance of the town of Sumperk No 41/96 of 16 December 1991 12. the 1996 regulations

digital and lighting devices and gaming devices in the territory of the city

Šumperk, the Constitutional Court once again returns to the original restrictive interpretation

individual municipalities. This interpretation, however, to ensure the constitutionality of the

and the legality of generally binding decrees issued by the municipality in a separate

the scope is not necessary nor appropriate. A separate range of competence in §

14. 1 of the law on municipalities is demonstratively, and therefore, according to the

in our opinion, can be supplemented by special laws on the one hand, and

extended on the basis of general competence clause contained in section 14

paragraph. 2 of this Act. The Constitutional Court should continue a trend that

He began finding in the matter of PL. ÚS 18/94 of 8 February 2005. November 1994, which

He was named under no. 231/1994 Coll., and the full text was published under no.

50 volume 2 collection of findings and resolution of the TC of the CZECH REPUBLIC. This finding, in its

justification tried to appropriate control of constitutionality and legality

While respecting the separate conflicts of traditions kept public

the effort to make the village even had some tools to populate their

self-governing functions, without whose assistance the Government becomes

void. While respecting this trend cannot agree with

a restrictive interpretation of section 17 of the law on municipalities and § 14 para.

1 (b). about) the same law. While it is true that the explanatory memorandum to the amendment to the

the law on municipalities no 279/1995 SB. States that the reason for the amendment is

above all, the regulation of prostitution as a phenomenon which threatens the public

the order, however, the explanatory memorandum undoubtedly does not have normative value.

The contested Decree of Šumperk was clearly conceived as a

Decree towards the security of public order (article 2) and its

the character also drew attention to the city when defending their

the legal opinion. According to our Court, the provisions of § 17 of the Act on municipalities

enables the village completely undeniably, in the interests of public order regulate the

certain activities and in this way cannot be in itself an obstacle that

These activities are otherwise regulated by special legislation.



1, section 3, paragraph 3. 2 Act No. 116/1990 Coll., on lease and sublease of non-residential

space, as amended.



2 section 25 of Act No. 455/1991 Coll., the Act, as amended

regulations.



3 § 17 para. 1 of Act No. 455/1991 Coll., the Trade Licensing Act, as

amended.



4 § 14 para. 1 (b). about) of Act No. 367/1990 Coll., on municipalities, as amended by

amended.



5 § 82 or section 85 of the Act No. 50/1976 Coll. on territorial planning and building

Code (the building Act), as amended.



6 § 46 para. 2 and 3 and section 48 of Act. No. 200/1990 Coll. on offences, as amended by

amended.