An Unconstitutionality Of The Judicial Code Of The Administrative

Original Language Title: o vyslovení protiústavnosti části soudního řádu správního

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$20 per month, or Get a Day Pass for only USD$4.99.
284/2012 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court decided under the SP. zn. PL. TC 34/10 on 24. July 2012 in

plenary in the composition of Stanislav Package, Vlasta Formankova, Turgut Güttler,

Pavel Holländer, Ivana Janů, Vladimir Crust, Dagmar Lastovecká, Jan

Musil, Jiří Mucha (reporter judge), Jiří Nykodým, Pavel Rychetský,

Miloslav Výborný and Michael Židlická of the proposal of the Supreme Administrative

the Court, which is JUDr. Marie Žišková, an unconstitutionality

Part 7 of title II of part III of the Act No. 150/2002 Coll., the administrative court rules,

in the text of the amendments made to the law before the No. 303/2011 Coll., with the participation of

The Chamber of Deputies and the Senate of the Parliament of the Czech Republic as participants

and management 1. The Way, s. r. o., company 27,686,418, based in Brno, workers '

1222/53, 2. ONE Develop, s. r. o., company 26,945,151, based in Brno,

Workers ' 1222/53, 3. AB-NET, s. r. o., company 25,581,805, based in Brno,

Olomouc 164a, 4. REWIN BRNO, s. r. o., company 64,511,855, based in Brno,

Hospital 7, 5. HYDROSPOL, spol. s r. o., COMPANY REGISTRATION NUMBER 44,015,925, registered office

Troubsko, Sadová 483/11, 6. Urbania, s. r. o., COMPANY REGISTRATION NUMBER 26,242,826, registered office

Moravany, Chief 21, 7. BMC BALTAS, s. r. o., COMPANY REGISTRATION NUMBER 25,732,439, registered office

Brno, Hviezdoslavova 29b, 8. Medim, spol. s r. o., COMPANY REGISTRATION NUMBER 47,903,279,

Brno, the peasants ' 80, 9. And, PORTAFER r. o., Reg. No. 25,327,470, registered office

Brno, Úvoz 129/88, 10. Deltasys, s. r. o., company 27,661,903, based in Brno,

Provides 12, 11. ZZM, spol. s r. o., COMPANY REGISTRATION NUMBER 25,595,351, registered office in Hungary

Siding 1108, 12. Ing. T. D., 13. The m. D., and 14. With D as the side

Parties to the proceedings,



as follows:



The proposal is rejected.



Justification



(I).



The proposal for the opening of the procedure and its change



1. In the draft Constitutional Court registered as received on 22. 6.2010 the Supreme Administrative

the Court suggested the procedure laid down in article 4(1). paragraph 95. 2 of the Constitution of the Czech Republic (hereinafter the

"the Constitution"), the cancellation of the part 7 of title II of part III of the Act No. 150/2002 Coll.

the administrative court rules, as amended by Act No. 127/2005 Coll., IE. in the text of the

as at the date of filing, that is. § 101a up 101 d (code of civil procedure of the administrative

"with a. l. s."). In the contested legal proceedings about the cancellation of the measures

of a general nature found a contradiction with the principle of legal certainty resulting from the

the concept of the rule of law according to the article. 1 (1). 1 of the Constitution and also with the law

ownership, the right to entrepreneurship and the principle of the equality of the participants

of the proceedings according to article. 11, 26 and article. paragraph 37. 3 of the Charter of fundamental rights

and freedoms ("the Charter"). Non-compliance with the law also found

due process in the form of the right of access to court under article. paragraph 36. 1

and 2 of the Charter and the law of territorial self-governing units according to the article on the Government.

paragraph 100. 1 of the Constitution.



2. In the course of the proceedings in case sp.. PL. TC 34/10 challenged the constitutional

of the Court of 21 June. 3.2011 constitutional complaint against a judgment of the Supreme

Administrative Court of 18 May. January 2011 No 1 Ao 2/2010-185, which

was associated with the proposal to repeal section 101a up 101 d s. l. s. Because in

This matter is already before the constitutional court proceedings took place in case sp.. PL.

TC 34/10, the Constitutional Court, resolution SP. zn. PL. TC 21/11 of 10 November.

5.2011 (available on http://nalus.usoud.cz) decided pursuant to the provisions of section

paragraph 35. 2 Act No. 182/1993 Coll., on the Constitutional Court, so that it is

the proposal unacceptable. At the same time decided that the complainants have the right to

to participate in the proceedings for the earlier filed design as by the participants (section 35

paragraph. 2 the second sentence for a semicolon to the law on the Constitutional Court).



3. The Supreme Administrative Court said that the proposal in question according to the article. paragraph 95. 2

The Constitution serves their decision-making activities in the matter of j.

1 Ao 1/2010-156. The applicant seeks the annulment of the measures

of a general nature-change no. 1 of the territorial plan of the village Kamenice approved

the top of the village on 12 June 2006. 7.2005 and announced by the generally binding

by Decree of the village Kamenice No. 2/2005, amending generally binding

the Ordinance of the village Kamenice No 11/2000 on the publication of the binding section of the territorial

planning documentation of the village Kamenice. The applicant in the proceedings before the

The Supreme Administrative Court is the owner of the land in question concerned

by changing the zoning plan and the violation of their rights to ownership disputes and

the right to entrepreneurship by the fact that, as a result of the action of a general nature

cannot implement specific structures, intended for business (or your

business plan). The Supreme Administrative Court, which has to decide on the

the proposal to repeal the contested part of the said measures of a general nature,

He came to the conclusion that the legislation dealing with the management of repeal of measures

of a general nature or its part, which is to be applied in a particular case,

Unable to unload the constitutionally Conformal manner and you need to cancel it.



4. In the course of the proceedings, the Constitutional Court found that the 11 December. 4.2011 Government

The Czech Republic submitted to the Chamber of Deputies a draft law authorising the

amended Act No. 150/2002 Coll., the administrative court rules, as amended

regulations, and some other laws (the Chamber of Deputies election, VI.

period, print no. 319). In paragraphs 51 to 55 of this legislative initiative

significant changes were proposed, the contested legislation, IE. Part 7

Title II, part III, s. l. s. (Section 101a up 101 d). Due to the

This circumstance was awaited completion of the legislative process, in order to

Obviously, what the legal status of the contested provisions will need to be

decide.



5. On 14 June 2004. 10.2011 was published in the collection of laws Act No. 303/2011

Coll., amending Act No. 150/2002 Coll., the administrative court procedure code, as amended by

amended, and some other laws. This amendment significantly

changed the rules of the proceedings for the annulment of measures of a general nature and its parts

contained in part 7 of title II, part III, s. l. s. (see Act No. 303/2011

Coll. points 55 to 60). Amendments of the regulations set out administrative way

Act No. 303/2011 Coll. took effect on 1 May 2004. 1.2012. The provisions of the article.

(II) point 1 of the transitional provisions determine that if not specified

otherwise, the revised rules of court and administrative proceedings initiated for

before the date of entry into force of this amendment. For the ongoing proceedings before the

The Constitutional Court was the fact that a substantial article. (II) section 9 of Act No.

303/2011 Coll. has established an exception to that rule. Declare that already

initiated proceedings for the annulment of measures of a general nature or its parts,

which was not decided until the date of entry into force of the amendment to the

administrative judicial procedure shall be completed according to present legislation

regulations.



6. In the follow-up to this transitional provision, the appellant turned on

The Constitutional Court with a proposal that was acceptable to change the design and to the constitutional

the Court issued the "interpretative" award, which will be addressed, that "the provisions of the

Part 7 of title II of part III of the Act No. 150/2002 Coll., the administrative court rules,

in the text of the amendments made to the law before the No. 303/2011 Coll., has been in the

contrary to the article. 1 (1). 1 and article. paragraph 100. 1 of the Constitution and article. 11, 26 and article. 37

paragraph. 3 of the Charter of fundamental rights and freedoms ". This proposal, the Constitutional Court

and resolution No. j. pl. TC 34/10-52 design change, he admitted, without

the closer could deal with meritem things. The subject of the proceedings is therefore become

determine whether "the provisions of part 7 of title II of part III of the Act No. 150/2002

Coll., the administrative rules of court, as before the amendments made by law No.

303/2011 Coll., was in breach of article. 1 (1). 1 and article. paragraph 100. 1 of the Constitution and

article. 11, 26 and article. paragraph 37. 3 of the Charter of fundamental rights and freedoms ". It is not

Therefore, in the context of the contested part 7 of title II of part III.

r. s. only changed parts of its provisions, as mentioned

transitional provision requires the use of this part of the code of civil procedure

administrative in the original version, and it as a whole. Petit also design

This work is directed against the administrative judicial procedure as a whole, although

the argument is conducted (see below), just against some of its parts.



II.



Recap of the proposal



7. The Supreme Administrative Court the present proposal according to the article. paragraph 95. 2 of the Constitution

served in the context of its decision-making activities in the case in which the

the question of timeliness, and ever time limit time limit for the submission of the proposal on

the abolition of the measures of a general nature became the subject of the procedure with different

the opinions of the participants (see judicial SP. zn. 1 Ao 1/2010, no l.

158 and 159). In the proceedings before the Supreme Administrative Court, the petitioner

(Strojmetal Kamenice, a. s.) annulment of the measures of a General

nature-no changes. 1 of the territorial plan of the village Kamenice approved

the top of the village on 12 June 2006. 7.2005 and announced by the generally binding

by Decree of the village Kamenice No. 2/2005, amending generally binding

the Ordinance of the village Kamenice No 11/2000 on the publication of the binding section of the territorial

planning documentation of the village Kamenice. This is the owner of land

by changing the question concerned the territorial plan and claims violation of his

the rights of ownership and rights to the business that, as a result of that

measures of a general nature cannot implement specific structures, intended for

business (or its business plan), and for several years

deeply convinced that the performed by changing the zoning plan has to

the very significant intervention into its subjective rights. Interval

between changing the zoning plan and the proposal was the appellant in the proceedings before the

The Supreme Administrative Court, however, pointed to the fact that
law (prior to the amendment of order administrative) no time limit

has provided. The Supreme Administrative Court in this stage of the proceedings concluded,

that legislation, which is to be applied in a given case, it cannot be interpreted

constitutionally Conformal manner. Therefore, he handed the procedure laid down in section 64 paragraph. 3

Act No. 182/1993 Coll., on the Constitutional Court, as amended,

proposal to repeal part 7 of title II, part III, s. l. s. as a whole.

Following the amendment of the code of civil procedure of administrative applied for admission

design changes, which the Constitutional Court upheld (see sub 6 above).



8. In the grounds of its proposal, the Supreme Administrative Court first analysed the

the circumstances of the classification of the measures of a general nature to Institute the rule of law and

problems of the development of the case law described in terms of its formal and

the material concept. For the purposes of the present draft emphasized that

measures of a general nature in the domestic law is an administrative act only with the

specifically (individually) defined subject and generally by the designated

addressees, and not with specific addressees and abstract subject.

A specific definition of the subject is the key character that distinguishes the measures

the general nature of the legislation and closing it to the individual

an administrative act. The purpose of the measures of a general nature is the specification of the obligations

already arising from the law, but in response to a particular situation,

that is the subject of such a measure. The adjustment of the contested provisions of section

101a up 101 d s. l. s., as amended by 31. 12, 2011, the appellant called a

kusou and imperfect, but very important from the point of view of the protection of

the addressees of the measures of a general nature. However, it is considered in the form of to 31.

12.2011 for constitutionally unacceptable.



9. the applicant stated that, in General, most of the management of the measures of a General

the nature of the concerns of the territorial plans. Territorial plan was for general measures

the nature of the new zoning laws declared no 183/2006 Coll. on territorial

planning and building code (the building Act), effective since 1. 1.2007.

Territorial plans issued by the previous building Act No. 50/1976 Coll., on the

land use planning and the building code (the building Act), as amended by

amended, were considered as measures of a general nature on the

the basis of the concept of the material concept as formulated in the

the judgment of the Supreme Administrative Court No 1 Ao 1/2005-98 and award

The Constitutional Court, SP. zn. PL. ÚS 14/07 from 19 June. 11.2008 (N 198/51 SbNU

409) Material suggests a novel concept and the building Act law

No 191/2008 Coll., amending Act No. 183/2006 Coll. on territorial

planning and building code (the building Act), as amended by Act No. 68/2007

Coll., which from 3. 6.2008 in the section, paragraph 188. 4 edited by conversion of content

the legislation issued from the previous building Act and their

nature; It has been established that the generally binding decrees issued before 1. 1.

2007 defining a binding part of the territorial planning documentation shall be

for measures of a general nature. In addition, the proposal notes that the Institute

measures of a general nature was in the legal order of the Czech Republic introduced

Act No. 500/2004 Coll., the administrative code, and before the entry

the administrative code in efficiency (1. 1.2006) dropped anchor a few measures of a General

the nature of the Act No. 127/2005 Coll., on electronic communications and

some related laws (Act on electronic communications)

that at the same time in title II, part III, s. l. s. episode 7 governing

judicial review of measures of a general nature. The contested legislation

the applicant States that the legislature dropped anchor mailing option to turn

the Supreme Administrative Court with a proposal to repeal the measures of a general nature

or its part for conflict with the law, since the measures of a general nature

can significantly interfere in the legal sphere, when it determines their mailing

the specific rights and obligations. The protection of these rights through the

the court proceedings is therefore significant, however the Edit alone shows

the amount of deficiencies resulting from the preparation of the legal neujasněnosti

editing.



10. the proposal, with regard to the deficiencies of the total adjustment of the revocation

measures of a general nature, calls for the repeal of title II of part 7 to part III

s. l. p., IE. § 101a up 101 d s. l. s. These shortcomings by

the petitioner shall consist of:



in the absence of a) deadlines for the submission of the unconstitutional proposal on the review of the measures

of a general nature or in fixing the time limits for the discriminatory only a certain

Group entities (see below sub 13 n.);



(b) unreasonably short) period of 30 days for a decision on the proposal, and that of

for two reasons. One is the complexity and seriousness of the case and in the case of territorial

plans and for example. the length and complexity of the process itself, the adoption of

measures of a general nature (are not saying that you cannot decide within this period, always

seeks to its compliance). The second reason is the question of equality of the participants

the proceedings. While the claimant has to prepare and submit a proposal for the abolition of the

action unlimited time, respondent must as a rule on an extensive proposal

respond in a matter of days;



(c) the adequacy of the management concentration) on the abolition of the measures of a general nature

the Supreme Administrative Court, although this is a typical agenda for a

courts of first instance. In addition, a number of measures of a general nature, which may

be challenged, could lead to flooding the Supreme Administrative Court. In

last but not least the concentration causes the participants from the whole of the Republic of

disproportionate costs associated with conducting the Brno University of technology. the applicant's

However, aware that the organisation of the judiciary and the legislature and it is

inefficient or unreasonable editing is not a reason for its cancellation,

the contested legislation, however, indicates a clearly disproportionate;



(d) participation in the exclusion of the other) people in, in addition to the petitioner and

the defendant, although the repeal of the measures of a general nature can have a major

the effects on all the addressees of the measures.



11. The unconstitutionality of the legislation because of missing the deadline for the submission of

the proposal on the review of the measures of a general nature (reason sub 10. and) has found in the

to the principle of legal certainty, which, inter alia, reflected in the

the form of the request for the fixing of the time limits for the submission of the proposal to the Court. Here

the appellant points to find sp.. PL. ÚS 33/97 of 17 February 1997. 12.1997

(N 163/9 SbNU 399; 30/1998 Coll.), the judgment of the European Court of

human rights (hereinafter "ECHR") in the matter of Pérez de Cavanilles, the Council

against Spain (complaint No 28090/95) and to the case-law of the Court of Justice

The European Union (hereinafter referred to as "the Court") and the Tribunal [judgment

Of the Court (Fifth Chamber) of 26 March 2004. November 1985

C-42/85 Cockerill-Sambre SA v Commission, judgment of the Court of

15 July. January 1987 in case C-152/85 Misset v Council, Rudolf, the judgment of the

Of the Court (second Chamber) of 23 October. January 1997 in case C-246/95

Myrianne Coen against Belgium and the judgment of the Court of first instance (fourth

Chamber) of 18 July 2003. September 1997 in joined cases T-121/96 and T-151/96

Mutual Aid Administration Services NV v Commission] that the determination

the deadline for the submission of the application follows the legitimate aim of the proper performance of

Justice, legal certainty and helps preventing discrimination or

arbitrary treatment in the administration of Justice. He argues further that according to the

case-law of the Court of Justice of the EU in cases where there is no legislature

the period laid down, the proposal cannot be put off indefinitely and must be

submit it in due time, otherwise there would be a breach of the principle of legal

certainty and protection of legitimate expectations of the participants of the given legal relationship

(judgment of the Court of 14 July 1972 in case C-48/69

Imperial Chemical Industries Ltd v Commission, judgment of the Court of Justice

of 14 June. July 1972 in case C-52/69 j. r. Geigy AG against the Commission or

judgment of the Court of 24 July 2003. November 1987 in case C-223/85

Rijn-Schelde-Verolme v Commission).



12. On the other hand the plaintiff States that the principle of legal certainty is not

absolute value and it should be measured with other values, in particular

with the requirement of legality and the right to access to court. Legal troubles mean

the requirement for the compliance of the Act of the public authority with the right to (Act).

He stressed that due to the presumption of the legality of acts of the public authorities

and considering the rights and obligations of the persons concerned, that the Act

establishes, amends or cancels, as well as considering the possibility of issuing other

related acts, however, the intensity of the requirement to ensure the legality of the Act

the public authority is decreasing with time and, conversely, there is an increasing demand for legal

sure, that is. ensure the permanence of the Act. The task of the legislature

It is then to find a reasonable compromise between the requirements of legality and legal

the security. Here the appellant recalled the judgment of the Court of first instance-

now the Tribunal-(Fourth Chamber, extended composition) of 6 November 1997. in October 2005,

joined cases T-22/02 and T-23/02 Sumitomo Chemical Co Ltd and Sumika

Fine Chemicals Co. Ltd v Commission, according to which "the extent to which a time limit is

laid down, is the result of the election between the requirements of legal certainty and the requirements

legality on the basis of historical and social circumstances prevailing

in a society at a given time ". At the same time, it recognises that the Tribunal leaves

deadline for submission of the proposal on the initiation of proceedings before the Court or other

the Authority fully to lawmakers, is not considered competent to criticize
the choice made by the legislator and the possible fixing of the time limit itself

does not find it contradictory for the principle of legal certainty (paragraphs 82 and 83

of the judgment). At the same time, however, the case law of the Court of Justice

confirms that, in cases where there is no time limit set by the legislature,

submission of the proposal cannot be put off indefinitely and must be filed in

reasonable period of time, otherwise, there would be not only a violation of the principle of legal

security, but according to the circumstances and the legitimate expectations of the participants of the

the legal relationship (see, in relation to the permission of the Commission to impose a fine for the

infringement of competition law the judgment in case C-48/69 Imperial Chemical

Industries Ltd. v Commission [1972] Ecr, p., 619, paragraph 49, or

judgment in case C-52/69 j. r. Geigy AG v Commission [1972] Ecr,,

s. 787, paragraph 21; in relation to the Commission's permission to challenge an illegal

State support of the judgment in case C-223/85 Rijn-Schelde-Verolme against

The Commission [1987] Ecr, p., 4617, paragraphs 12 to 17).



13. the right of access to a court in the meaning of article 87(1). paragraph 36. 2 of the Charter not

absolute and neomezitelné. Its purpose is the possibility of a real and effective

protection against the acts of the public authorities. To do this, the appellant submits

the judgment of the ECTHR in case Freitag against Germany (application No. 71440/01), where

The ECTHR held that "the right to a trial, one aspect of which is the right to

access to the Court is not absolute; is subject to restrictions, for example. legal

the time limits. Where there is a right of access to court, restricted by law or

in fact, the Court examines whether the saved restrictions protect the essence of this

law, in particular whether it was watched by a legitimate purpose and whether there was a reasonable relationship

the proportionality between the means used and objectives pursued. Here

the appellant concluded his argument by saying that the principle of legal

Security is part of the constitutional order of the Czech Republic and also

of the Convention for the protection of human rights and fundamental freedoms (hereinafter referred to as

"The Convention"). It manifests itself, inter alia, in the form of a request for the determination of deadlines

to submit a proposal to the Court or other authority. When fixing the time limits is

the search must be reasonable and proportionate to the relationship between the principle of legal

the security and the requirement of legality and the right to access to court; unilateral

the preference of one of these values cannot be considered reasonable and

It can be described as a violation of the values, which have been suppressed. He did not rule

However, in exceptional circumstances, the principle of legal certainty in the form of

determination of time limits give way to General requirements of Justice (e.g..

rehabilitation, restitution).



14. The Supreme Administrative Court on grounds its proposal referred to

the legal opinion expressed in the resolution of the enlarged Board in case sp.. 1

AO 1/2009 in the case of proceedings for the annulment of measures of a general nature or

the part of the legislature any time limit for the submission of the proposal on the review of the

determined (except period implicitly arising from § 101a, paragraph 1, sentence

the second s. l. s.), such period not's interpretation of "přimyslit", as the

This would be inadmissible (not provided by law) to restrict access to

judicial protection of the [points to find SP. zn. PL. ÚS 83/06 of 12 March. 3.

2008 (N 55/48 SbNU 629; 116/2008 Coll.) with that of unconstitutional

space unavoidable constitutionally Conformal interpretation]; the proposal is limited

only the existence of the measures of a general nature. The unconstitutionality of the absence of time limits

According to the appellant's obvious from the initiation of the case sp.. 1 Ao 1/2010,

in which the proposal for a review of the year 2010 is directed against the territorial changes

the plan of the year 2005, while the territorial plan was adopted already in

2000. Therefore considers that the relationship between the principle of legal certainty on the one

hand, and the requirement of legality and the right to access to court, on the

the second does not respect the requirement of proportionality and reasonableness. No such

the reason you cannot find in the explanatory memorandum to the draft law on electronic

communications or from records of his hearing. As well as this

Edit the join with the requirement of General Justice or the need to undo the

serious wrongs. De facto absolute preference requirement the legality and

the right to access to court over the principle of legal certainty therefore assesses

as arbitrary.



15. This line of argument against the time that the review of the applicant

support the other arguments that can be used to organize for clarity

in the following way:



and the absence of a time limit for the unconstitutional) the submission of a proposal in connection with the material

the concept of measures of a general nature (in the case of territorial plans and according to

the revised section, paragraph 188. 4 "new" Building Act) allows you to

review of unlimited into the past, therefore, the subject of the review may be

many decades old territorial plans (published in the form of a generally binding

order at any time before 1. 1.2007). It is therefore possible to ban violation

retroactive application, and that the contested part of the administrative judicial procedure on

the process of adoption of urban plans before the entry into force of law No.

500/2004 Coll., the administrative procedure code;



(b)) because the Supreme Administrative Court is reviewing a formal first and then

only the material elements of the measures of a general nature, is obliged to cancel the

the measures also "only" on the basis of a formal misconduct, that has happened a number of

years before the filing of the application for review. Any procedural irregularities and

the powers and scope of the issues should be resolved in a reasonable and

reasonable period of time after the effectiveness of the plan. Stresses the need for a while

restraint in interfering with the relations arising from deep in the past

[mentions find SP. zn. II.-519/08 of 25 June. 9.2008 (N 157/50 SbNU

399) and resolution SP. zn. II. the TC 264/07 of 5 November. 6.2008, SP. zn. I. ÚS

889/07 of 24 August. 2.2009 and SP. zn. I. ÚS 3108/07 of 27 June. 12.2007

(nepublikována, available on SbNU http://nalus.usoud.cz)];



(c)) it can mean the intervention as to the constitutionally guaranteed rights of the owning

the assets referred to in article. 11 of the Charter, the right to entrepreneurship in accordance with article. 26

paragraph. 1 of the Charter;



(d) at the option of the cancellation) measures of a general nature (in particular, with the

a large detachment from the time of adoption) can also be considered as interference in the rights of the

According to the article on the Government. paragraph 100. 1 of the Constitution. The proposal does not seek to

nezměnitelnost territorial plans, however, sees the difference between going to

the change in the standard management adapted by participation

stakeholders, and in which it is the decision of the responsible

political actor (municipality), and the fact that cancels the plan after many years

dedicated to the Court decision. Such excessive intervention of the Court, albeit in

accordance with the law, is inconsistent with the right to self-government;



(e) measures of a general nature shall be subject to) the standard review procedure

the administrative authority referred to in section 94 to 99 of the administrative code, which can be used in accordance with the

§ 174, paragraph. 2 of the administrative code start not later than within a period of three years from the

their effectiveness. The amendment to section 188, paragraph. 4 of law No. 183/2006 Coll., however,

were excluded from the review procedure of territorial plans announced by the General

binding decrees (i.e. territorial plans adopted before 1. 1.2007).

The legislature thus raised a paradoxical situation when part of the urban plans

not in the review by the administrative regulations review and

the remaining portion of the only within three years of their effectiveness. At the same time

but judicial review for all plans unlimited, as a result of

judicial and administrative review can in both cases lead to the cancellation of the

land-use plan;



(f)) in the preparatory work is lacking any mention or justification for this

unlimited options for review. voucher for the requirements of the General

Justice (see sub 13);



(g)) of such legislation, which allows, through a court

the decision to interfere with the rights of ownership or the right to entrepreneurship

of third parties and which also does not provide any time limits for

the petitioner to submit a relevant proposal to the Court, it is clearly

incompatible with the requirements of the Convention. Here, the applicant refers to the judgment of the

The ECTHR in case the Kirov and others against Bulgaria (application no 31836/04, point

32);



(h)) the unconstitutionality of editing time limits for the submission of the proposal and considers that the

the omission of the legislator has resulted in even constitutionally neakceptovatelnou

the inequality of the two groups of subjects [refers to find SP. zn. PL. ÚS 36/01

of 25 June 2002. 6.2002 (N 80/26 SbNU 317; 403/2002 Coll.)]. It is given the wording of the

the second sentence of § 101a, paragraph. 1. r. s. (action is limited to the statutory

period, and therefore, if the applicant is obliged to submit a proposal for the abolition of the

the measures, together with the action, the proposal must be delivered to the Court in the same

the statutory time limit). The legislature thus distinguishes two groups of potential

the plaintiffs ' repeal of the measures of a general nature; the first group are persons,

that has been notified of the administrative decision, for whose release was used

measures (section 101 d 1 s. l. s. set a time limit for the submission of the proposal),

and the second group of persons who are either no administrative proceedings

did not initiate or have initiated, but yet they were not notified of the administrative

the decision (Section 101a 1 s. l. s. no time limit does not provide).



According to the Supreme Administrative Court is the resignation of legislator

on the determination of the period, and the resulting de facto absolute

the preference of the legality of the request and of the right of access to court is not

can be evaluated otherwise than as an arbitrary violation of the principle of legal

security, which is in conflict with the constitutional order of the Czech Republic. It arises
so the gap to the unconstitutional [find SP. zn. PL. ÚS 15/04 of 30 March 2004.

11.2004 (N 180/35 SbNU 391; 45/2005 Coll.)], which is referred to in the appellant's

contained in Section 101a s. l. s. Determination of the time limit for the submission of a proposal to start

the procedure for the cancellation of the measures of a general nature or its parts is however

condition control, which is decisive for the whole of the contested legislation.

Required by the conflict with the constitutional order could not be deleted only

the abolition of Section 101a s. l. s. It was therefore proposed to repeal the entire part 7

Title II, part III, s. l. s. (Section 101a up 101 d), later (see

Sub 6) voicing neústavnosti this edit as a whole.



16. this general conclusion the applicant adds other caveats to this

Edit. In particular, the obvious inadequacy of the legislation of the

review of the measures of a general nature, which manifests itself in several

aspects of; both the period of thirty days for the decision of the Court is completely

excessive complexity and seriousness of the matter, and also (especially in the case of

land use plans) the length and complexity of the process itself, the adoption of

measures of a general nature. The Supreme Administrative Court does not claim that in this period

It is not possible to decide (in their decision-making activities maximum seeks to

compliance with this deadline) or that this period of time puts a strain on the Court, however, this

a short period has serious impacts on the rights of the parties to the proceedings and their equal

standing before the Court. For example. While the applicant has available

an unlimited period to prepare and submit a proposal for the repeal of the measures

of a general nature or its part, the respondent must rule on an extensive proposal

respond in a matter of days. You can also consider a disproportionate concentration of

proceedings before the Supreme Administrative Court (closer to sub 10. c).



17. Finally, as indicated in the "rather to illustrate", points out the appellant and

on the legal exclusion of other persons from the proceedings in addition to the petitioner and the respondent

(see section 101b s. l. s.). As has been indicated above, the outcome of the proceedings of the

the abolition of the measures of a general nature or its part can have a major impact

to all the persons who are the addressees of the measures (e.g., in

the present case, it is proposed to abolish the General regulativů

relating to industrial production, which have an impact on all the territory of the

regulated land use plan). The statutory exclusion of these persons from participation in the

court proceedings and of the possibility to defend their rights can be regarded as inconsistent with the

the law on access to the Court under article. paragraph 36. 1 and 2 of the Charter.



18. In conclusion, the proposed repeal of part 7 of title II of part III of the Act.

150/2002 Coll., the administrative court procedure code, as amended by Act No. 127/2005 Coll., IE.

in the version in force at the date of filing. This proposal was subsequently reworded

based on the admission of design changes, as mentioned above (see sub 4 to

6), without real argumentation on amended or supplemented.



19. On 21. 3.2011 constitutional complaint, the Constitutional Court received pointing

against the judgment of the Supreme Administrative Court No 1 Ao 2/2010-185 dated

January 18, 2011-led under SP. zn. PL. TC 21/11 (see sub 2). In addition to the

the argument, which is directed against the verdict and the reasons of this judgment,

the plaintiffs propose and the repeal of parts of the law, was based on.

the contested judgment, that is. § 101a up 101 d s. l. s. Link yet

specifically on the appellant's argument in this proceeding in the matter of SP. zn. PL.

TC 34/10. They argue that, on the basis of unexpected changes and adjustments to the territorial

the plan of the municipality Moravany an intervention into their legal certainty,

ownership and rights to the business as a result of the destruction of their

investments. It further argues that the fundamental ústavněprávním the lack of contested

the judgment is the fact that when it was their legal

the options on the legal status and rights of their intervention, they couldn't

This however to participate in the proceedings. This violation of procedural rights is referred to in

their opinion about it more serious, that the Supreme Administrative Court was the existence of

rights of third parties. On the form of their application (infrequent

representatives of the municipality Moravany Bc. M. B.-see paragraph 44 of the judgment of the Supreme

Administrative Court SP. zn. 1 Ao 2/2010) responded by explicitly stated,

that the paper will not be taken into account. Such a procedure is from the side

participants of incorrect and constitutes interference in their right to a fair

process, including the equality of participants in court. Specifically, in this proceeding,

The Supreme Administrative Court set aside its judgment referred to above measures

of a general nature-Amendment No 4 (second part), 5, and 6 of the land-use plan of the municipality

Russia, which has been approved by a resolution of the Municipal Council of the municipality Moravany

No 2.4.-3.36.2009 25 May. 6.2009. These changes were made at the instigation of

secondary participants in relation with the realisation of their investment

projects in the locality. In the judgment of the Supreme Administrative Court upheld the proposal

three property owners affected by the change of the territorial plan of the

due to the intervention of their property rights, and for reasons connected with the

the procedure for approval of changes to the zoning plan initiated by the side

the participants in the present case. In its proposal for the minor participants

further argue that the expansion of the industrial zone, the Municipal Council of the municipality carried out

Moravany in 2009. The proposal to cancel the changes to the zoning plan of the municipality

was filed 10. 5.2010 and the Municipal Council of the municipality with him for the respondent

disagreed. After the 2010 election, however, the newly elected city government

changed as a respondent in the proceedings before the Supreme Administrative Court of your

position, with a proposal to cancel changes to the zoning plan benefits and

a hearing on 11 July. 1.2011 joined him. Secondary participants

the consideration of such a proposal came to the fall of 2010.

They state that, at the request of one of the representatives of the Municipal Council of the municipality

Moravany Bc. M. B. reviews are written by the representatives of the information about their

investment. He then turned on behalf of several persons, including the complainants,

the Supreme Administrative Court with the communication on the consequences of that would be possible

cancel changes to the zoning plan brought to third parties (see point 44

judgment No. 1 Ao 2/2010-185). The paper was delivered to the Court, 13 July. 1.

2011, i.e., after the oral hearing of the case, but even before the Court

made a decision on the merits, there was 18. 1.2011. At the time of

the Supreme Administrative Court decisions have been known to be factual

the effects of its decisions, including prejudice the rights of third persons. This

the fact the Supreme Administrative Court has confirmed in its decision (see paragraphs

44 and 67 of the judgment No. 1 Ao 2/2010-185), however, decided in favour of the

the protection of the rights of the plaintiffs and intervened by the abovementioned fundamental

the rights of the minor participants. Those in their extensive submissions are based on it,

they were not parties to the proceedings, the decision, however, be construed as a form of

Another intervention to their fundamental rights. In addition, they stress that

the current modern procedural theories are based on the difference between windscreen wiper

participants and neúčastníky control when institutes such as amicus curiae and

other informal application of tools of interest even to the Czech procedural

culture and the courts are increasingly taking into account the broader impact of its decisions,

to third parties. This trend should also submit to the Supreme Administrative

the Court, in particular with regard to the fact that the proceedings, which is

Typically, management, which has far-reaching impact on the definition of many persons.

The Court had the opportunity to interview any of the person concerned, request svědecky

documents from them, etc., but didn't. From this procedure, then the

secondary participants, it was that the Supreme Administrative Court has violated the right to

a fair trial, both formally gave them the right to

process the participation of the incorrect, and neprocesním in an unlawful manner, and

the material that followed in terms of its procedural practice grossly

single-minded in a way that takes into account only one of possible interest

entering into considerations of decision-making. Even if they are aware of the different

the circumstances of a particular case, referring also to the argument

the petitioner in this proceeding in the matter of sp.. PL. TC 34/10. At the same time in

this context argue inconsistency of the Supreme Administrative Court as the

the appellant, as in their opinion in the proceedings on the SP. zn. 1 Ao

2/2010 proceeded under the provisions of the administrative procedure, which

before he attacked the Constitutional Court in the case conducted under the SP. zn. Pl. ÚS

34/10. The Supreme Administrative Court to supporting participants also claimed that a number of

misconduct in its own decision. They point out, however, also conceptually

faulty approach when deciding on the proposals on the interference measures General

nature, which represents interference in the right to self-government, often gives

prefer the procedural objections, which have no real relationship to the content of the

the contested measure, and does not distinguish the peculiarities of deciding on the

the individual administrative acts and legislation. For all of these

the reasons supporting the participants turned to the Constitutional Court with the knowledge that you already

the proposal to repeal the relevant part of the code of civil procedure of the administrative hearing in

things SP. zn. PL. TC 34/10, and proposed its abolition, arguing that they will be

Act in the proceedings as interveners. For completeness,

notes that the legal representative of the participants looked the day 4. 1.2012 into

Court records sp.. PL. TC 34/10, at a time when there were new
the legislation. No more acts of minor participants in the proceedings

not done. At the same time to the challenge of the judge-rapporteur expressed agreement with the

abandonment of the oral proceedings.



III.



Representation of the parties



20. the Chamber of Deputies on the draft expressed her chair

Miroslava Nemcova, as soon as possible to discuss the judicial procedure of the administrative

(print no. 1080). Stated that it was discussed in three

readings of the day 25. 10.2001, 30. 1.2002, 8. 2. the 2002 and 15. 2.2002 (after the

the incorporation of the amendments) and was approved by 15 December. 2. the 2002 on 46.

the meeting when the vote no. 589, when 157 deputies present for the

the proposal for members and 103 against 44 members. Senate proposal said

the agreement of 21 June 1999. 3. the 2002 and President of the Republic signed it June 28. 3.

2002. the publication in the collection of laws on 17. 4.2002.



21. As regards the contested provisions themselves of the judicial code of the administrative,

President of the Chamber of Deputies said it was in the code of civil procedure

the administrative act is inserted 127/2005 Coll., on electronic

roads and amending certain related laws (the law on the

electronic communications), (part of the twenty-first section 171 paragraph 3). A proposal from the

the law on electronic communications submitted to the Chamber of Deputies

the Government of the day 7. 9.2004 (circulated as Council print no. 768). To the contested

the provision was in the explanatory memorandum the comment: "in the context of a strong

the requirement of Community law enshrining the rights of entities in the

market appeal against regulatory and other actions (which have in the draft

the law form of administrative decisions, measures and decrees of a general nature)

to their rights to an independent body (Court) and repeat this

the request in consultation with the representatives of the Commission of the European communities

It is proposed in accordance with article. 87 of the Constitution of the replenishment order administrative

the provision allowing the Supreme Administrative Court interfere with the measures

the general nature of the conflict with the law "(special section of the explanatory memorandum,

item 173). The Chamber of Deputies discussed the proposal in three readings on 23 June.

and 24. 9.2004, 14. 12.2004 and 17. 12.2004 (after incorporating

amendments). The proposal was approved by 17 December. 12.2004, 39. walking

When you vote no. 500, when 181 deputies present was for design 108

54 members and against the proposal. The Senate proposal to discuss and 27 June. 1.2005

decided to return it to the Chamber of Deputies with amendments.

The Chamber of Deputies remained on her adopted texts and in the final

the vote on the 41. the meeting of 22 November. 2. the 2005 draft was approved by the

167 members present voted for the proposal and against the draft 113 35

members. The President of the Republic, the law on electronic communications

signed on 21. 3.2005 and publication in the collection of laws was on 31 December 2004.

3.2005.



22. For the Senate to challenge the judge-rapporteur expressed his Chairman MUDr.

Přemysl Sobotka, who pointed out in its comments on the circumstances of the Insert

the contested provisions in the administrative judicial procedure, according to the explanatory memorandum

and pointed out the progress of the discussion of the proposal in the Senate. He stated that for

the return of the draft law on electronic communications in voting no.

16 of the 75 Senators present spoke against the proposal and for 59 2 senators.

He stated further that the debate in the Senate (including its committees)

content focused in particular on the proposal three Minister of Informatics

exalted circles problem (wiretapping, digitization and

the public multiplex, the relationship between the Office for the protection of economic

competition and the Czech Telecommunication Office). Institute of General measures

nature and its judicial review in more detail devoted to the Committee

education, science, culture, human rights and petitions, which it considered

for the Central Institute of the law on electronic communications, the proposed

judicial review, however, the nerozporoval, when his attention focused on the question

the efficiency of the administrative judicial procedure in relation to the effectiveness of the edit

the Institute measures of a general nature in the Administrative Procedure Act (Act No. 500/2004

SB.). The President of the Senate, considered it necessary to note that the contested

the provisions of the code of civil procedure of the administrative relationship to section 4, paragraph 4. 2

(a). (c)) and section 48 paragraph. 2 (a). (e)) s. l. s. To small print design has not commented

and leave this question as well as the President of the Chamber of Deputies on

The Constitutional Court.



IV.



Formal conditions of discussing the proposal and the constitutionality of the legislative

procedures



23. Pursuant to section 68, paragraph. 2 Act No. 182/1993 Coll., on the Constitutional Court, in

the text of Act No. 48/2002 Coll., Constitutional Court in proceedings for annulment

laws and other legal regulations, whether the contested act or other legal

the regulation was adopted and published within the limits of the Constitution laid down the competence and

constitutionally prescribed way. In the present case, however, it is a part of the

administrative judicial procedure, which in the course of the procedure has been changed

some of the provisions, which was attacked by the proposal. For the present

the thing here is the essential fact that according to the article. (II) section 9 of Act No.

303/2011 Coll. (IE. the amendment to the administrative judicial procedure) is already opened

proceedings for the annulment of measures of a general nature or its parts, in which the

It was not decided until the date of entry into force of the amendment of the

order administrative, completes the existing legislation. The subject of the

management is, therefore, the constitutionality of the entire part 7 of title II, part III, s. l. s.

his status until 31 December 2006. 12.2011, since it is the legal status, of which it must

The Supreme Administrative Court. For the Constitutional Court, it indicates that the subject of the

the proceedings will inevitably as already repealed, however, applicable

the provisions of this part, its provisions still remain in the

validity, even if it was by changing the key part of this substantially

hit. Therefore, you must follow the requirements of section 68, paragraph. 2 of the Act

No. 182/1993 Coll., on the Constitutional Court, as amended by Act No. 48/2002 Coll.,

to their full extent.



24. From the representation of the Chamber of Deputies and the Senate, and of těsnopiseckých messages

(The Senate sent as an annex to the statement in the Chamber of Deputies

published on the Internet on website

http://www.psp.cz/sqw/historie.sqw?T=768&O=4) shows that the Chamber

the Chamber of Deputies approved the Bill on electronic communications

(containing the challenged provisions of the judicial code administrative) in the third

reading on 17. 12.2004, when members of the 181 was to design

108 and 54 members against the proposal. The Senate proposal is returned with the EP amendments,

proposals 27 June. 1. in 2005, when from the present 75 Senators were to return

the proposal with amendments 59 senators and 2 were against. Subsequently,

The Chamber of Deputies approved the proposal in the original language (i.e., the text of the

approved by the Senate before forwarding) on 22. 2.2005, when from the present

167 votes for and against the draft proposal 113 35 members. The law on the

electronic communications was signed by the respective constitutional factors

and was under no 127/2005 Coll. properly declared in the amount of the collection of laws, 43

that was circulated on 31 December 2004. 3.2005, and pursuant to section twenty-seventh section 179

took effect "the first day of the second month following the date of its

the publication of ", that is, on 1 May 2004. 5.2005. The Constitutional Court concluded that the

the contested provisions of the administrative procedure adopted constitutionally

prescribed procedure.



25. Similarly, the Constitutional Court came to the conclusion that after the formal page

proposal in accordance with the requirements of article. paragraph 95. 2 of the Constitution and § 64 paragraph. 3 of the law

No. 182/1993 Coll., on the Constitutional Court, as amended. In

proceedings before the Supreme Administrative Court in SP. zn. 1 Ao 1/2010

the applicant seeks the annulment of the measures of a general nature 1-no changes.

territorial plan of the municipality of Kamenice Municipal Board approved the village on 12 June 2006. 7.

2005 and generally binding Decree declared the village Kamenice No. 2/2005,

amending generally binding Decree the village Kamenice No 11/2000 on the

the publication of the binding section of the planning documentation of the village Kamenice.

It is a question of the legality of the public service Act, in which it is to be

to answer the question, whether this Act (measures of a general nature) was issued for

compliance with the rules laid down in the constitutional order. The provisions of § 101a to

s 101 d. l. s. to be immediately used to resolve things, taking

on the assessment of their constitutionality as at 31. 12.2011 depends more

procedure the appellant in these proceedings. The proposal was therefore filed a legitimate

by the applicant.



26. The Constitutional Court also joined the draft judicial SP. zn. 1 Ao

1/2010. Considering that the present legal problems, and all the

the facts of the case were sufficiently apparent from the documentary

documents, the Constitutional Court of the procedure under section 44, paragraph. 2 of the law on the constitutional

the Court refrained from the oral proceedings, since it could not be expected

further clarification of the matter and the parties to the proceedings with the consent of the danger ahead.



In the.



The assessment of the constitutionality of the proposal the provisions



27. On this basis, after a review of the contested provisions of § 101a to

s 101 d. l. s. The Constitutional Court has come to the conclusion that the proposal is not reasonable. Was

in so doing, guided by the following considerations.



28. The contested provisions of the code of civil procedure to be applied in the administrative

the meaning of the article. (II) section 9 of Act No. 303/2011 Coll. in the wording:



"Part 7



The procedure for the cancellation of the measures of a general nature or part of the



Section 101a
(1) a proposal for the repeal of the measures of a general nature or its affiliates shall be entitled to

bring the one who claims that he was on their rights to those of a general nature,

issued by an administrative authority, truncated. If according to the law at the same time

be entitled to in respect of the measures of a general nature that was used, in

the administrative judiciary, lawsuit or another proposal, may propose the abolition of

measures of a general nature only along with such a proposal.



(2) a proposal for the repeal of the measures of a general nature or its parts, issued by the

municipality or region may make also the Ministry of Interior.



(3) a proposal for the repeal of the measures of a general nature or its parts, issued by the

the region, also may be made by the municipality.



(4) the respondent is the one who issued the measures of a general nature, whose cancellation

or cancellation of its parts is proposed.



section 101b



The participation of other parties to the proceedings (section 34) is excluded.



section 101 c



To control the withdrawal of the measures of a general nature or its parts is the competent

The Supreme Administrative Court.



section 101 d



Judgment and its effects



(1) when deciding the Court assess the consistency of the measures of a general nature,

the law, and whether the person who issued it, within the limits of their

scope and jurisdiction, and whether the measures of a general character issued by the law

laid down in a way. While not bound by the reasons for the proposal.



(2) if the Court concludes that the measures of a general nature or part of the

are in conflict with the law, or that the person who issued it, exceeded the limits

its scope and powers, or that the measures of a general nature was not

published by the law laid down by way of measures of a general nature or its

part cancels a date determined in the judgment. If the proposal is not reasonable, the Court

It will be rejected. The Court on the application for annulment of the measures of a general nature or its

parts shall decide within 30 days thereafter, when the proposal reached the Court.



(3) If, on the basis of the measures of a general nature, which was cancelled, or

If, on the basis of the measures of a general nature, which has been repealed,

decision on administrative tort and this decision has the legal power, but

has not yet been done, is the abolition of such measures of a general nature or

part of the reason for retrial under the provisions of the relevant

of the procedural regulation.



(4) the rights and obligations of the legal relations arising from the abolition of

measures of a general nature or parts of it remain untouched.



(5) To pay the costs of the parties to the proceedings have no right. "



29. As already mentioned above, the basic condition for the management of specific

control legislation, where the applicant is a General Court, is

met. In the present case, the applicant (Strojmetal Kamenice, a. s.)

management kept under sp.. 1 Ao 1/2010 before the Supreme Administrative Court

seeks the annulment of the measures of a general nature-Amendment No. 1 of the territorial plan

the municipality of Kamenice Municipal Board approved the village on 12 June 2006. 7. the 2005 and

generally binding Decree declared the village Kamenice No. 2/2005, which

amending generally binding Decree the village Kamenice No 11/2000 on the publication of

binding of planning documentation of the village Kamenice. In the proceedings before the

The Supreme Administrative Court, because this is a question of legality

Public Service Act, in which it is necessary to answer the question, whether this

Act (measures of a general nature) has been issued in compliance with the rules laid down

the constitutional order and its content does not interfere with constitutionally guaranteed rights

and freedoms of their addressees referred to in article. 11 and 26 of the Charter. The infected

the provisions of the code of civil procedure has to be applied to administrative immediately when

the solution of the matter, the assessment of the constitutionality of § 101a up 101 d s. l. s. in the

the text of the 31. 12.2011 depends more procedure the appellant in these proceedings.

The proposal was therefore from this general terms, filed by authorized

the constitutionality of the law by the applicant, that challenge is in progress

proceedings apply. In contrast, the position of the side of the participants in this

the procedure is based on a constitutional complaint against the decision rendered in already

-completed the proceedings before the Supreme Administrative Court. The subject of the proceedings are

However, only the provisions of the contested part 7 of title II, part III, s. l. s.,

rather than a framework for future decisions of the Supreme Administrative Court

SP. zn. 1 Ao 1/2010. the assessment of the constitutionality of the judgment in case sp.

Zn. 1 Ao 2/2010.



30. Relevant to the procedure of the Constitutional Court, therefore, is that, in the present

things are not abstract control of constitutionality, because such

the design is not entitled to the general courts (article 64, paragraph 1, of Act No. 182/1993

Coll., on the Constitutional Court, as amended by Act No. 83/2004 Sb.). It is therefore about

a specific situation in which the applicant is to apply the provisions of

administrative judicial procedure in the conditions of a particular case. Not

abstract evaluation of the possibility of submitting a proposal for the repeal of the measures of a General

nature without time limit, when, moreover, already been this option from the

the administrative court rules his amendment deleted. It's not a question of

the absence of a deadline in the abstract meaning, but rather an assessment of whether it is constitutionally

permissible and in accordance with the principle of legal certainty, that the rule of law

allows it to be filed on 31 December 2004. 3.2010 proposal to repeal the changes

part of the plan, which was implemented in 2005 and which-as

It showed in the following another administrative procedure for the authorization of the construction-preventing

the implementation of a specific business plan applicant (in management

before the Supreme Administrative Court). It's a situation where the terms of the definition of

its legal nature occurred no later than the 19. 11.2008 for recognition of territorial

plans for measures of a general nature in the material concept (see above find

The Constitutional Court, SP. zn. PL. ÚS 14/07), or when from 3. 6.2008

generally binding decrees issued before 1. 1. define a binding part of 2007

territorial planning documentation declared the general nature of the measure-see

§ 188, paragraph. 4 of law No. 183/2006 Coll. on territorial planning and building

Code (the building Act). Of course, the General Court shall not prevent that

He argued, as it does in the present case, and set out the wider

the constitutional circumstances of the case, which has to decide, just as it does not prevent the

Next, the participants in the context of its proposal to support this

the reasoning of the Supreme Administrative Court from the perspective of their particular

case. The subject of the proceedings, however, are only challenged the provisions of the

the order of the administrative procedure, in which the Constitutional Court cannot in any way

anticipate the future decision of the claimant. own decision in

things the constitutional complaint of side participants.



31. The constitutional status of the judiciary structure within the meaning of article. 95 of the Constitution

do not allow the courts to actively engage with the proposals on the review of the

the constitutionality of laws, where it is not necessarily needed for the solution of the matter,

about to decide. On the basis of the initiation of proceedings in the sp..

1 Ao 1/2010 challenges the applicant's overall adjustment of the revocation

measures of a general nature, i.e.. § 101a up 101 d s. l. s., as amended by

effective until 31 December 2006. 12.2011 and aplikovatelném within the meaning of article. (II) point 9

the transitional provisions of Act No. 303/2011 Sb. According to this provision, the

the proceedings initiated before the date of entry into force of this Act, in which the

It was not decided until the date of entry into force of this Act, until 31 December 2005.

12.2011, completes the existing legislation. Projector

However, only some of the provisions, saying that as a result of their

Edit neústavnosti is unconstitutional as a whole. These shortcomings by

the petitioner (see also sub 10) consist of:



in the absence of a) deadlines for the submission of the unconstitutional proposal on the review of the measures

of a general nature or in fixing the time limits for the discriminatory only a certain

Group entities (closer to the sub 13 n.);



(b) unreasonably short) period of 30 days for a decision on the proposal;



(c) the adequacy of the management concentration) on the abolition of the measures of a general nature

the Supreme Administrative Court, although this is a typical agenda for a

courts of first instance;



(d) participation in the exclusion of the other) people in, in addition to the petitioner and

the defendant, although the repeal of the measures of a general nature can have a major

the effects on all the addressees of the measures.



32. As has already been stated, such a proposal is entitled to a General

the Court in the context of its decision-making activities (section 64 (3) of law No.

182/1993 Coll., on the Constitutional Court, as amended), if

to the conclusion that the law, which is to be used when solving things, conflict

with the constitutional order (article 95, paragraph 2, of the Constitution). These rules should be

regard to the position of the judicial power in the system of State authorities and on the

the principle of the separation of powers and the role of the judiciary to interpret it so that the Court can

This procedure may require a decision just in case of such provisions

the law, which has inevitably apply in the case before him.

It is not enough only a hypothetical possibility of use or only the wider context,

as it would in effect mean the right of the Court to challenge any

the procedural provisions relating to proceedings before the Court, as always occurs

to a chaining of applied regulations and the de facto is always applied

whether or not the legislation as a whole [see resolution SP. zn. Pl. ÚS

39/2000 of 23 October 2000. 10.2000 (39/20 SbNU 353)]. Unlike

abstract checks the constitutionality of a particular law, is to check the constitutionality of

in the narrow context of adjudication of a particular case. Into it
the Constitutional Court may enter only under strictly defined conditions,

the only way to a decision on the constitutionality of the law, which has to be

the solution of the matter. Under the control of the Constitutional Court cannot

enter into a management and express themselves to the subject above

framework for the assessment of whether the conditions are given for consideration submitted by the

the proposal.



33. Therefore, it is in particular the control of the constitutionality of the Act

jurisdiction for the issue of an assessment that the provisions of the Act to be in

inevitably, the control used. In this regard, of the submitted documents

the material is made, that the subject of the proceedings are (after the clarification of the small print of the proposal

-judicial SP. zn. 1 Ao 1/2010, no. l. 27 to 29) selected provisions

generally binding Decrees No 11/2000 on the publication of the binding section of the territorial

planning documentation of the village Kamenice, as generally binding decrees

the municipality of Kamenice No. 2/2005, amending generally binding Decree the municipality

Kamenice No 11/2000 on the publication of the binding section of the planning

documentation of the village Kamenice. In particular, the appellant contests while regulativy

zoning plan that relate to the prohibition of building large resources

air pollution in the territory of the municipality and the definition of the floodplains, between

of which the territory in which the applicant should state the newly

built a Hall for HCM technology for continuous casting rod

alloys. The applicant in the proceedings before the Supreme Administrative Court expressly in

the proposal states that it is aware of the conclusions of the case-law of the Supreme Administrative

the Court, in particular that in its judgment No. 1 Ao 1/2005-98 this Court

true to form, the algorithm about five steps. It is noted that this algorithm

According to the Supreme Administrative Court is produced from section 101 d of paragraph 1. 1 and 2.

l. s. (in the original version) and consists of five steps: first,

in a review of the powers of the administrative authority to issue measures of a general nature; for

Second, to review the question of whether the administrative authority when issuing the measures

of a general nature does not exceed the limits defined by law the scope of (negotiations

Ultra consider vires); third, in the review of the question whether the measures of a general nature

It was released by law laid down procedure; Fourth, to review the contents of the

measures of a general nature from the perspective of his violation of the law (material

the criterion); Fifth, in the review of the content of the measures of a general character issued by the

in terms of the proportionality criterion of proportionality (the legal

Regulation). The Court in the review progresses from the first step to the next with

If any of the steps of the algorithm finds a reason for the cancellation

the contested measures of a general nature, applications, other steps have already

does not address. From the point of view of the subject of the proceedings is to be noted that the appellant in the

proceedings before the Supreme Administrative Court shows (see the present judicial dossier,

on l. 11), that in his case will go in particular to the fourth and fifth step, i.e.,

the contradiction of the contested parts of the measures of a general nature with the law and in particular on the

neúměrnost the content of this measure (the question of the proportionality of the interference).

This is not a situation in which measures of a general nature is being challenged from the

because of procedural irregularities, although the content is safe, which is referred to in

the petitioner's fundamental problem in terms of respect for the principle of legal

the security. In the iniciačním control is a namítán intervention in the rights of reason

the content and the proportionality of the interference, not only because of the violation of

the rules in his recruitment. The objections raised in that direction on the part of

the side of the participants (see sub 19) to the General judikatorní the practice of the Supreme

Administrative Court, including his five steps algorithm in the evaluation of the measures

of a general nature, therefore, can be assessed only in the management of their

the constitutional complaint.



34. From the reference material that would be in the iniciačním case

participation in the proceedings sought in vain to some other person (section 101b s. l. s.

the original text), that would be a problem arose because of the concentration of control of the

the abolition of the measures of a general nature in the Supreme Administrative Court (§ 101 c with.

r. s. in the original version). that the defendant could make harm to its

rights as a result of the time limit provided for expressing opposition to the proposal (sub

10. b), when the proposal in the course of one week (see worksheet

No 36 n. of court records). Having regard to the circumstances of the case

It is not necessary to deal with even the deadline for making the decision (section 101 d (2)

s. l. s. in the original version, now 90 days). So here is the situation

the dual position of the various claimants (without time limit and period-see sub

15. h) within the meaning of § 101a, paragraph. 1. l. s. section 74 (similar to Act No. 182/1993

Coll., on the Constitutional Court, as amended by Act No. 48/2002 Coll.). In the proceedings before the

The Supreme Administrative Court is also not on the issues of the review

proceedings under section 174, paragraph. 2 of the administrative code (in relation to section 188, paragraph 4

the building Act – see sub 15. e, as in the present case as to the

the problem of judicial review, not about the review procedure under part VI

(or section 94 to 99) of the administrative code (claim sub 15. e). In this respect,

The Constitutional Court notes that in these parts of the application, with regard to the

During his administration, appears to be as indirect support for the reasons for the successful

the application of the Government's proposal to amend the code of civil procedure in administrative

the legislative process (see print clearly no. 319, the Chamber of Deputies, VI.

the electoral period, section 13 of the explanatory memorandum to the amendment to the code of civil procedure

the use of these administrative) and reasons to support reasoning about

neústavnosti the absence of a time limit for the submission of the proposal, in the case of judicial review

measures of a general nature. It will be so used the existing legislation with the

a number of defects, in particular cited the management, however, does not have to be the top

given the contentious (and mostly already amended) provisions apply.



35. From documents also imply that, in the case of iniciačním

There was another person who would be called for participation in the proceedings under section 34 with.

l. with. the applicant in this case lists (sub 17) that "rather for

an illustration of the "points out on the statutory exclusion of other persons from the proceedings in addition to the

the petitioner and the respondent according to the original wording of section 101b s. l. s. For such

the situation was not even in the case of side participants who its objections

raised by Member of the municipal municipality Moravany Bc. M. B.

This point would be the Constitutional Court could possibly identify with his

argument, however, suggest saying this provision neústavnosti

could the General Court only under the terms of § 64 paragraph. 3 of Act No. 182/1993

Coll., on the Constitutional Court, as amended. Otherwise, it is only

things of the persons concerned, which would be in vain to participate in proceedings presided, in

the case of nepřipuštění in the management submitted the constitutional complaint pursuant to article. 87

paragraph. 1 (a). (d)) of the Constitution. Even if the Constitutional Court in the present case came out

from extensive interpretation of the terms and conditions for specific control of constitutionality, and

Therefore, not only from the fact that the appellant actually voicing neústavnosti

requires, but that it cannot be excluded that such person may participate in the

management of the claim, without canceling or better clarification of the wording of the article. (II) point 9

Act No. 303/2011 Sb. could be the path to the cessation of section 101b s. l. s.

in the contested texts of the open. This suggests that even the new wording of section 101b paragraph. 4

s. l. s. and the overall strengthening of the position of the stakeholders on the way

the amendment to the administrative judicial procedure Act No. 303/2011 Coll. as well as

in the case of the determination of the period would have to be the determination of the conditions of participation of other

people on management of abandoned to the active intervention of the legislator, that could

consider all the consequences of the termination of the application of section 101b s. l. s., in the original

the text of the. The new wording of section 101b paragraph. 4. r. s. cannot in no time without

connection with the fact that the procedure under Part 7 of title II, part III, s. l. s.

transfers from the Supreme Administrative Court, the county courts, which is related to the

the possible participation of a large number of persons to the management. This question addresses the new

the provisions of § 34 paragraph. 5. l. s. In this proceeding, not with regard to the

the formulation of a Constitutional Court with jurisdiction to pronounce that the transitional

the provisions of the article. (II) point 9 shall be deleted within a certain range, which would mean,

that part of the new legislation, including section 34 paragraph. 3 and 5 with a. l. s. would be applicable

When the issue does not arise here right retroactive.



36. Therefore, in the present case, the Constitutional Court could focus on the core

the appellant's arguments regarding the neústavnosti of the whole legislation in

the context of the absence of time limits for the consideration of the proposal for the repeal of the measures of a General

nature. There is no doubt that the missing design permissions restrictions

by setting a specific deadline is imminent and inevitable problem

that will have to be the complainant in the proceedings sp.. 1 Ao 1/2010

deal. The appellant with regard to the clarity of legislation

requests that the Constitutional Court has issued a finding that the interpretative

determined that "the provisions of part 7 of title II of part III of the Act No. 150/2002

Coll., the administrative rules of court, as before the amendments made by law No.

303/2011 Coll., was in breach of article. 1 (1). 1 and article. paragraph 100. 1 of the Constitution and

article. 11, 26 and article. paragraph 37. 3 of the Charter of fundamental rights and freedoms ".



37. In the case it is necessary to identify the applicant, the legal

Edit, in the State, which has to decide, such potential constitutionally

Conformal interpretation does not allow (see above his reasoning in paragraphs 3, 7 and
14.) therefore it can only act on the interpretation relating to a particular

aspect had a prescription, i.e. the interpretation of negative subsumpci

certain facts in terms of subject matter, space, time, and bodies,

as for example. in the case of finding sp.. PL. ÚS 43/04 of 14 June. 7.2005 (N

139/38 SbNU 59; 354/2005 Coll.), where it was excluded partly personal

the scope of the contested provisions, without clearing its text changed.



38. In the present case, it is a proposal on the exclusion of the time effects

the contested provisions, since the lack of definition of the time limit under

the petitioner's rights to intervene in certain groups of people in terms of

the requirements of legal certainty, when legislation is to be the preferred

the principle of legality and the right to access to court (see closer sub 12 to 14).

Although in general the Constitutional Court the applicant partially shares his

the argument, in the present case came to the conclusion that the arguments of the

referred to above in paragraphs 11 to 15 in the new legal situation after the

Amendment of the contested provisions of the judicial code of the administrative act.

303/2011 Coll. shall be sufficient. This argument had its permission before

the amendment, however, was as a result of amendments to the new law. A proposal from the

requires the State in cases of unconstitutionality voicing control

continuing until the end of 2011, but even in such a case (see already

the argument sub 35) cannot reach a satisfactory solution with regard to the

transitional provisions article. (II) section 9 of Act No. 303/2011 Sb. Even if,

that would be the Constitutional Court concluded that the legislation, which is to be

applied in a given case, was unconstitutional, it does not change anything that would

could not be reached by the path to the needed remedy.



39. The basic starting point in this respect is that according to the legal opinion

The Constitutional Court, prima facie period without further shows and cannot

have the characteristics of unconstitutionality, these can then be made only

"specific circumstances" of the case under consideration, in other words, an assessment of the

the constitutionality of the period is the assessment of the kontextuálním [find SP. zn. PL. ÚS 6/05

of 13 June. 12.2005 (N 226/39 SbNU 389; 531/2005 Coll.)]. These

"specific circumstances", or aspects of contextual assessment

the constitutionality of the existing case-law, the time limit according to the Constitutional Court are:



-the inadequacy of the (disproporcionalita) period and in relation to her time

limited application of the constitutionally guaranteed rights (right),

as defined by time constraints of subjective rights. From

of that point of view, the Constitutional Court in finding SP. zn. PL. ÚS 5/03 dated 9.

7.2003 (N 109/30 SbNU 499; 211/2003 Coll.) annulled the provisions of § 3 and 6

Law No. 290/2002 Coll., on the transition to some other things, rights and

the obligations of the Czech Republic in the regions and municipalities, citizens ' associations active in

the field of sports and sport and related changes and a change in the law

No 157/2000 Coll., on the passing of some of the things, rights and obligations of the estate

The Czech Republic, as amended by Act No. 10/2001 Coll., and Act No. 20/1966

Coll., concerning the health care of the people, in the wording of later regulations, which

It represented a disproportionate restriction of ownership rights, infringement of article. 11

paragraph. 1 in conjunction with article. 4 (4). 4 of the Charter of fundamental rights and freedoms (

constitutionally, the Court considered in the Conformal rozhodovaném the context of such legal

who would this restriction was based only in completely necessary time

the extent to which you can understand only the minimum time, and clearly

prima facie "transitional" period, but not the period of ten years);



-arbitrariness of the legislature in the determination of the period (its anchoring or

the cancellation). Within the meaning of this perspective, the assessment of the constitutionality of the period

the Court proceeded in case sp.. PL. ÚS 2/02 [find SP. zn. PL. ÚS 2/02

of 9 June. 3.2004 (N 35/32 SbNU 331; 278/2004 Sb.)], in which a

unconstitutional provisions of section marked cancel 879c to 879e of the code of

the code made by Act No. 229/2001 Coll., amending Act No.

219/2000 Coll., on the Czech Republic and its performance in the legal

relations, as amended by Act No. 492/2000 Coll., and some other laws, which

the legislator intervened to the legitimate expectations of the exact circuit

operators just one day before the expiry of the period in which there would be a

acquisition of ownership, with the result that the bodies which act in

trust in advance the conditions laid down by the State, were a mere day before

the expiry of the said period compared with arbitrary procedure state that

the Court found conflicting with article. 1 of the additional protocol to the Convention (and with it the

citing the case-law of the European Court on human rights in kause

Broniowski against Poland from 2002, no 31443/96, Gratzinger and

Gratzingerová against the Czech Republic from 2002, no. 98/39794, Zvolský and

Zvolská against the Czech Republic from 2001, no. 46129/99);



-constitutionally unacceptable inequality of two groups of subjects, which is

the result of the cancellation of certain legal conditions for the application of law for the

the unconstitutionality, while this clearing for the operators

as a result of the expiry of the time limits due to the possibility of derogation without further

the application of the rights does not open. On the basis of perceived "specific

"in the circumstances, the findings, sp.. PL. ÚS 3/94 of 12 April. 7. the 1994 (N 38/1

SbNU 279; 164/1994 Coll.) and SP. zn. PL. ÚS 24/97 of 3 December 2004. 6.1998 (N

62/11 SbNU 111; 153/1998 Coll.) The Constitutional Court, the abolition of provisions

that determines the start of the period for the application of the restitution claim opened

the possibility of its use for those eligible persons who, as a result of

conditions of residence within the time limits of the original claims successfully applied

could not. In this context, the Court stated that "these individuals were therefore

de facto excluded from the circle of entitled persons may sue

financial compensation, and were therefore-in comparison with other authorized

persons-were unconstitutionally handicaps and against them in the rough

the legal position ".



40. on the basis of the above, it is especially possible to conclude that the proposal

It is based on the claim of neústavnosti neomezení the time for submission of the proposal

on the repeal of the measures of a general nature. Most of the arguments of the claimant (see

Sub 11 to 14), however, is based on the case law dedicated to the issue of

the existence of certain time limits and its length, rather than its absence. Legal

Edit, that the possibility of filing a notice does not limit itself does not

SE unconstitutional, as it is not a time-unlimited opportunity to submit a proposal

on the repeal of the law or the pronouncement of unconstitutionality

the legislation, which is to be applied in judicial proceedings (see comparison

This three-year time limit for the application for revocation of the Act in the pre-Munich

The Czechoslovak Republic). In addition, the mention of neústavnosti applicable

editing without further led to the conclusion that the principle of legal certainty, as

It understands the applicant, should have (after some time) without further priority

before the basic right of access to a court (and therefore to the protection of the subjective

rights and freedoms) and the principle of legality (respecting the laws and

their hierarchy).



41. It cannot be without further přisvědčit, as here there are circumstances

that would in turn be interpreted in favour of the chosen solutions that

in the framework of the contextual assessment (see sub 39) may appear as

constitutionally acceptable. This problematic situation was gradually

also as a result of the development of the case law of the Supreme Administrative Court and

The Constitutional Court. The appellant rightly as one of the indirect reasons

possible missing deadlines for contesting the neústavnosti measures of a general nature

lists the promotion of the theory of material concept of measures of a general nature. It

has led to a situation where the territorial plans issued by the previous building

Act (Act No. 50/1976 Coll., as amended) to be

seen as a measure of a general nature on the basis of the material at

the concept, as it was phrased in the judgment of the Supreme Administrative Court No.

j 1 Ao 1/2005-98. The path to the judicial review on the basis of the material

the concept has confirmed 19. 11.2008 issued by the Constitutional Court, SP. zn. PL.

TC 14/07 (see above). Also the new building Act Amendment Act

No 191/2008 Coll., on the basis of the amendment in the article. (I)

section 6 has established with effect from 3. 6.2008, the generally binding decrees

issued before 1. 1. define a binding part of the 2007 planning

documentation shall be considered as measures of a general nature-see § 188, paragraph. 4

Act No. 183/2006 Coll. on territorial planning and building regulations (building

the law). This confirmed the path for their judicial review, while

the review procedure under section 174, paragraph. 2 of the administrative code for this case

excluded. It is worth noting that the Government's proposal (print no. 259, the House

the Chamber of Deputies, in the parliamentary term) did not contain this provision, which indirectly

illustrates the effect of varying the judicial case law on the understanding of the nature of the measures

the general nature of the legislation. Furthermore, in this context cannot be ignored

the consequences of the changing of the legal opinion on the status of the bodies concerned in the

their subjective rights of the "older" territorial plans. This applies, in particular,

for the core resolution extended the Supreme Administrative Court of

13.3. 2007 No. j. 3 Ao 1/2007-44, on the basis of the proposals have been rejected

on the cancellation of administrative acts, which are not measures of a general nature after

the formal page. This legal opinion was again changed on the basis of already
the cited award SP. zn. PL. ÚS 14/07 from 19 June. 11.2008. As well as

You cannot look through that enduring doubts about the correctness of the

podřazení land use plans (not yet in the binding part of the issued as generally

binding decrees) under the concept of measures of a general nature with regard to their

relationship to your own planning.



42. The legal situation which has changed several times and that, moreover,

was established by Act No. 127/2005 Coll. with effect only from 1. 5.2005,

not having regard to the circumstances of the case give a clearly preferred the principle of

the legal guarantee against the possibility of the bodies concerned to protect their

the subjective rights of the newly created possibilities to submit a proposal to the Court for annulment of the

measures of a general nature. If the legislature put together with the establishment of the new

the legal Institute of the possibility of the parties concerned that, depending on the

currently the reigning formal or material concept of measures of a general nature

in the course of 3 to 5 years to bring (the aspect of the protection of subjective rights) such

measures (thus the territorial plans), it cannot be considered as arbitrariness, but

also considered the option of how to achieve redress the illegality (the aspect of legality)

on this section of the range into the distant past. Now with this option

closed, with each entity concerned had the opportunity to to 31. 12.

2011 such territorial plan of attack, without being bound by the deadline. The new article.

(II) point 8 of transitional provisions for the amendment of the code of civil procedure in administrative

Law No 303/2011 Coll. lays down that measures of a general nature that

came into force before the date of entry into force of this law, may be brought

a proposal for its abolition or repeal parts of it not later than 3 years from the

date on which the design of the general nature of the contested measure came into force,

and even here cannot be missed the deadline for the submission of the proposal to forgive. If

now set a deadline of three years to submit such a proposal, and if it is possible

Note the relative stabilization of the case law at the end of 2008, it is not

This interval can be in terms of the absence of a deadline for the submission of the proposal

rate as unconstitutional, arbitrary or fixed-width. This is the

the time slot, which is of the order of substantially different from now the chosen period 3

years under section 101b paragraph. 1. l. s., and § 174, paragraph. 2 of the administrative code.

Similarly, under section 72, paragraph. 2. l. s. the period of three years, applies to the option

action to protect the public interest, as it now entrusts the section 66 paragraph.

2 and 4 with a. l. s. Attorney General and the Ombudsman.

The same applies to the legal situation of the minor participants where to change

Zoning Plan in May 2009, with the abolition of these changes

occurred in January 2011, but not the decision itself, Councillor

the village under the municipal policy issues, but the decision of the Court,

that is based on the conclusion of a violation of the law.



43. It is possible to admit that with the growing time lapse from 1. 5.2005

(the entry into force of the Act on electronic communications), from 1. 1.2006

(the entry into force of the new code of administrative procedure), from 3. 6.2008 (express

the transformation of urban plans of generally binding decrees on measures

of a general nature) and from 19. 11.2008 (find SP. zn. PL. ÚS 14/07

confirming the material concept) would as a result of missing the deadline to submit

the proposal in Section 101a, paragraph. 1. r. s. could encounter a situation known theories

as his gradual zneústavnění (called. Verfassungswidrigkeitswerden). In

the case of the specific control of constitutionality of the law, however, in this time

the time for such a conclusion is not the place for this extension

time segment is already stopped.



44. In this respect, it is possible to assess the other objection, that with the absence of

the deadline for the submission of the proposal, i.e., indirectly. the objection to the concentration

proceedings before the Supreme Administrative Court. This is not just about the usual conclusion, that

the Organization of the judiciary is a thing of the legislator (article 91, paragraph 2, of the Constitution). Here

the Constitutional Court considers it necessary to point out the fact that, in the

the establishment of a new legal Institute cannot be regarded as such a concentration,

which provides at the beginning at least a possibility of establishing uniform

the case-law, for something in itself neústavního. In addition, your own experience with the

different legal opinions on issues of interference and defining the nature of the

measures of a general nature demonstrates the legitimacy of this temporary solution,

now with the abolition of section 101 c. l. s. abandoned.



45. Even the opposite conclusion would, of course, could not reverse their own decisions about

nedůvodnosti design. The Constitutional Court cannot even fill in a generic "gap"

where the legislator filing any notice nesvázal, which finally

States and the applicant, in its submissions (see sub 14). It also illustrates the

judgment of the Court of first instance-now the Tribunal-(fourth extended

Chamber) of 6 April 2006. October 2005 in joined cases T-22/02 and T-23/02

Sumitomo Chemical Co Ltd and Sumika Fine Chemicals Co. Ltd v Commission

which the claimant (see sub 12). The above facts

and the time framework of legislation and the initiation of the dispute here, and the Constitutional Court

lead to the conclusion that, in the present case, cannot give a clearly preferred

the principle of legal certainty, unspecified measures General mailing

the nature of the protection measures of the subjective rights of the affected entities.

Determination or impose time limits for the submission of the proposal on initiating proceedings before the

by a court or other authority rests fully on the lawmakers. He also this

hardened space filled by an amendment of the administrative judicial procedure Act (No.

303/2011 Sb.) and the new text of section 101b paragraph. 1. l. s. Because an obstacle

the use of the new legislation is-as has been mentioned more than once-temporary

the provisions of the article. (II) section 9 of Act No. 303/2011 Coll., could be the path to the

the use of the new legislation (in addition, nota bene backward) open only

the abolition of this transitional provision. Of its cancellation, however, in this

I couldn't control and the Constitutional Court cannot anticipate the possible decision on

whether the new deadline corresponds to the nature of the measures of a general nature,

that is a legal act on the borders of the individual administrative act (where the

the time limits are far less precisely because of the legal certainty) and legal

Regulation (where time limits are not given), and what could be the result of

of such proceedings. The applicant, referring to the case-law of the Court of Justice

The EU States (sub 14) that, in cases where there is no legislature

the period laid down, the proposal cannot be put off indefinitely and must be

submit it in due time, otherwise there would be not only a violation of the principle of

legal certainty and protection of legitimate expectations according to the circumstances and the participants

a given legal relationship. Here, the Constitutional Court noted that it can be applied

in particular, where the rule of law for the one who has to act this way (but without the

definition of period) [eg. see find SP. zn. PL. ÚS 29/09 dated June 3.

11.2009 (N 233/55 SbNU 197; 387/2009 Coll.), points 115 to 122], whereas in the

the case of the application of the subjective rights of a person in private law as to the task

the legislature, for the State of legal certainty, if it is to be with

regard to the circumstances of the subject of the proceedings.



46. in this context, cannot be Ignored in the link to master plans as

measures of a general nature, in particular the principle of concentration contained in § 89

paragraph. 2 the building Act of territorial management and in § 114, paragraph. 2

construction law for construction management. With regard to what was said

in relation to their legal status, that the deadline for submission of the proposal on

cancellation of the master plan or any part thereof, is determined for assessment

questions constitutionality of absentee deadlines decisive that this condition was

already completed in proportionate to the now three-year time limit laid down. Furthermore, it is

Here, in view of the requirement of the protection of subjective rights

persons in private law against broad public by decision of the authorities

the management of [article 36, paragraph 2, of the Charter which also includes the concept of General measures

nature-to see. find SP. zn. IV. TC 2239/07 of 17 July. 3.2009

(N 57/52 SbNU 267), item 20] was created in sufficient time to

each territorial entity concerned could plan such a protection request with

given that such protection could not be adequately compensated for in

subsequent phases of a territorial or building management (cf. find SP. zn.

PL-14/07, paragraph 35), not only in relation to land use plans according to

the previous building Act (Act No. 50/1976 Coll., as amended by

amended). In addition, in certain types of proceedings under construction

the law already or the next phase of decision-making, not because the measures

of a general nature shall be represented at the same time and the appropriate territorial decisions. For example.

under section 77, paragraph. 1 the construction of the law is no longer a territorial decision issued

for the territory for which it is issued the regulatory plan-"and the extent to which the

replaced by the relevant territorial decision ". In this case, neither the person

private law for more protection of their subjective rights

not available [see also find SP. zn. IV. TC 2239/07 (see above)].



47. On the basis of the assessment of the appellant's argument, the circumstances

the initiation of the case and the circumstances of the emergence and development of regulatory measures

of a general nature, and the case-law on the Constitutional Court came to the conclusion

that proposal is not probable, and therefore decided under section 70, paragraph. 2 of the law on

The Constitutional Court about his rejection.



The President of the Constitutional Court:
JUDr. Rychetský in r.

Related Laws