272/1995 Sb.



FIND



The Constitutional Court of the Czech Republic



On behalf of the United States



The Constitutional Court of the Czech Republic decided on 8 June 1998. November 1995 in plenary on

the design of the head of the District Office in Kutná Hora on cancellation of generally binding

the Decree of Kutná Hora on transport in Kutna Hora No 10/94 (1)

on July 1, 1994



as follows:



Generally binding Decree of Kutná Hora No 10/94 concerning transport in the city

Kutná Hora from day 1. July 1994, adopted by the municipal government in the

Kutná Hora, is cancelled on the date of publication of this finding in the collection of laws of the United

of the Republic.



Justification



24 September. 5. in 1995, the Constitutional Court of the Czech Republic received a proposal from the head of the

District Office in Kutná Hora on the cancellation of generally binding regulation

Kutná Hora No 10/94 on transportation in this city.



The decree adopted by the municipal government in Kutná Hora on 31 December 2004. 5. the 1994

He is referring to § 36 odst. 1 (b). (f)) and § 14 para. 1 (b). I) of the Act on

the municipalities. The effectiveness of acquired on January 1. 7.1994. On the official Board was posted up

from the 1. 6.1994 to 16. 6.1994.



District Office in Kutna Hora under the provisions of § 62 para. 1 of law No.

367/1990 Coll., on municipalities, as amended, suspended by decision of the REF.

P-15/95 on 1 May 2004. March 1995 performance of the above regulation by reason of its

contrary to the provisions of § 2 and § 16 para. 2 of the Act. Urban

Assembly in Kutna Hora, a proposal to repeal the Decree has negotiated delivery

March 23, 1995 and adopted a resolution that an OWL generally binding Decree of

transport in no 10/94 does not interfere. As a result, handed the head of the Department

District Office in Kutna Hora, having regard to the provisions of § 64 para. 3

Act No. 182/1993 Coll., the proposal to have the Constitutional Court of the CZECH REPUBLIC the contested Decree

According to the article. 87 para. 1 (b). (b)) of the Constitution of the Czech Republic.



Its proposal for a head of the District Office in Kutná Hora was motivated by the fact that in §

14 of the law on municipalities, as amended, is exhaustively laid down separate

the scope of the municipality to which it belongs. 1 (b). I) issue in General

binding decrees in a separate mission approved under section 36

paragraph. 1 (b). (f)) of the same law references. A separate

scope in the field of transport, however, in § 14 para. 1 is not listed. In this

with regard to the mentions of the Constitutional Court, published under no.

35/1994 Coll., which considers in this section set out in enumeration

exhaustive. Traffic on the roads is governed by Decree No.

99/1989 Coll., according to which the rules of traffic on the roads.

This Decree does not have the mandate to regulate the operation of the

motor vehicles on the road.



Act No. 135/1961 Coll. on road traffic, as amended,

provides, in section 3, paragraph 3. 6 that the municipalities the responsibility performance of State administration in matters

relating to local roads, and especially the national

professional supervision (section 24). In the sense of the law and regulates the subject

the scope of the village [§ 3 c, paragraph 1 (b), (c)) and paragraph 2. 2] and provides it

authorization to perform certain modifications on the way generally binding decrees,

for example. skiing conditions on security (section 9 (3)). No mandate, however,

do not confer the jurisdiction of the municipality to issue a decree on transport or in

by the.



Posted by the judge-rapporteur, the head of design District Office in Kutná Hora

The Municipal Assembly in Kutna Hora, as a party to the

the observations. Town of Kutná Hora, in its communication of 18 February 2004. 8. the 1995 stated,

that the adjustment operation of motor vehicles in the territory of the city was carried out with the

regard to the protection of the environment and historic sites in the Centre

the city, which is a conservation area. According to him, there is no decree in

contrary to section 14 of the law on municipalities, because the definition of the individual

the village is considered to be demonstrative, as outside of the listed here

There are other areas of competence. The provisions of § 14 para. 2 defines the

a separate scope of communities such as the provision of economic, social and

cultural development, the protection and the creation of a healthy environment in the

territorial jurisdiction of the municipality, if it is not entrusted to other bodies such as the performance of the State

Administration. The Ordinance is not in breach of Regulation No. 99/1989 Coll., on

rules for use on the road, since it was released in

cooperation with the Czech police officer. The problem that the Decree

fixes, IE. above all, calm traffic in the center of the city in its historical

core, improving not only the quality of the air, but controlling the number of vehicles

entering the zone with traffic restrictions justified driveways, using

the charging scheme within a specified time range, which is based on the options

municipalities levy fees for a pass under section 10 of Act No. 564/1990

Coll. on local charges, is a matter concerning the immediately

the population of the city. In this respect, considers the town of Kutná Hora in general release

binding decrees, whether it is already named "shipping" or otherwise, for direct

the need for anymore because of the local communication system which directly creates

short passage through the historic center of the city, it needs to direct the

the number of arrivals by modifying the entrances within a specified time range pricing

and at the same time strengthening control by clarifying of wagons

motor vehicles.



Proposal assessed in accordance with the provisions of article the judge-rapporteur. 87

paragraph. 1 (b). (b)) of the Constitution of the CZECH REPUBLIC. In the article. paragraph 79. 3 of the Constitution of the CZECH REPUBLIC stated that the

the authorities of the Government on the basis and within the limits of the law to issue legal

regulations, if they are authorised to do so by law. In the article. paragraph 104. 3 of the Constitution of the CZECH REPUBLIC

is regulated by the law of the limits of its competence to issue generally

binding decrees.



As regards the contested in general binding Decree of Kutná Hora, no.

10/94 of 1 June 1994. 7.1994 on transport in the city, it was found that

does not comply with the above provisions of the Constitution, as cited

the law on municipalities, as amended, or act on the road

does not contain the corresponding authorization or permission for municipalities to issue

such a decree on transport, whether in a stand-alone or transferred

the scope of the.



Escaping the Ordinance by reference to the provisions of § 36 odst. 1 (b). (f)), and

the provisions of § 14 para. 1 (b). I) of the Act on municipalities shows on the fact

that Decree was properly taken by the municipal government and

formálněprocesně certifies that this is the Ordinance knowingly, bona fide,

accepted for a separate area of responsibility. It is also confirmed by

the fact that the Ordinance of the municipality in the field by (article 79

paragraph. 3 of the Constitution of the CZECH REPUBLIC, section 24 of the Act on municipalities) can issue only municipal

(City), the Council, and not the municipal (City) [the provisions of §

45 (b). l) of the Act on municipalities]. If this were about the publication of a notice in the

area by, there would be the President of the District Office is actively

to open the application to its cancellation (cf. section 62, paragraph 2, and 3

the law on municipalities).



The escaping of the decree referring to the provisions on the separate

scope, however, to attest that the area of individual

actually it is.



Sure the problem lies in the fact that the law on municipalities delimits the area of

separate the scope of the rather vague. In § 13 para. 1 generally provides that the

the village is managed by "business" itself. In § 14 para. 1 then provides

demonstrative (including the issue generally binding decrees in matters

a separate scope), a specific enumeration of things that fall within the

a separate scope to in paragraph 1(b). 2 established by the other sections of this

the scope of the general outline only. In this context, however, it is also important to

the provisions of § 13 para. 2 and § 16 para. 2 of the Act on municipalities, of which

It follows that the village is in the performance of individual, or in the performance of

the tasks in this field, you must follow the laws and generally binding legal

regulations issued by the central authorities to implement them. This means that the

the municipality when considering the issue generally binding decrees in the separate

scope cannot be based on just out of an enumeration in the § 14 para. 1

the law on municipalities (this may include even more things) and from the general framework of

contained in § 14 para. 2 of the Act on municipalities. The area covered by the last

that provision is in fact enhanced, especially by the section,

that, in itself, the provisions specifically characterizes the: "... with the exception of those

the activities that are assigned to other departments of special laws such as the performance of the

the State administration. " The municipality cannot legally regulate sections that are

governed by other regulations or things regulated privately

(e.g., civil code). Must always examine whether the area already

It is not, even partially, adjusted by any higher law

legal force.



As regards the finding of the Constitutional Court, published under no. 35/1994 Coll. (No. 4

Collections of the findings and resolutions of the Constitutional Court of the CZECH REPUBLIC. 1, Prague, c. h. Beck

1994), in which the Constitutional Court performs the interpretation issue separate

the scope of paragraph 14, respectively, of the Act on municipalities, and to which the head of the Department

District Office refers, it should be noted that the Constitutional Court from

This restrictive interpretation deviated in its discovery pl. ÚS 18/94 (No.

50 Collections findings and resolutions of the Constitutional Court of the CZECH REPUBLIC. 2, Prague, c. h.

Beck 1995). Different views for the same award however support

the former interpretation.



In General, when examining the decrees in question also must be taken into account


the existence of the article. 4 (4). 1 of the Charter of fundamental rights and freedoms (and also article.

2 (2). 4 of the Constitution of the CZECH REPUBLIC), from which it follows that the generally binding Decree,

even if issued in individual municipalities may impose obligations in

the region only if the obligation can be inferred from the wording of

law, or legal authorization from the frame (cf. e.g. No. 14 Collections

the findings and resolutions of the Constitutional Court of the CZECH REPUBLIC. 1, Prague, c. h. Beck, 1994).



The contested Decree deals with the issue of "transport" on the territory of the city

Kutná Hora. Modifies the legal regime of zones, parking lots, parking of vehicles,

the handling of the wrecks and nepojízdnými vehicles and their scent and also

control and prosecution of breaches of the obligations laid down by Decree.

Separate the scope of the municipality as defined by section 14 of the Act on municipalities-despite

the mentioned problems related to its interpretation with Community law-

to regulate the mode of "transport" (in fact, it comes to the issue of road

traffic). Ensuring the safety and traffic flow is

the performance of State administration, and under the provisions of section 12 (a). and the law of the CZECH REPUBLIC) No.

2/1969 Coll., on establishment of ministries and other central bodies of the State

administration of the Czech Republic, as amended, for the

The Ministry of the Interior, respectively. Police of the Czech Republic, which is

Subordinate to the Ministry of the Interior [cf. § 2, paragraph 1 (a) (i)), section 3 (2). 1,

section 22 of Act No. 283/1991 Coll., as amended]. This

the issue is regulated in more detail then Decree No. 99/1989 Coll., on

road safety rules (rules of the road

operation), as amended. Challenged general binding

the decree is in addition to the redundant "Retry" or inaccurate paraphrasing

Decree No. 99/1989 Coll. and in conflict with the provisions of this code

(see e.g. Article 4 and article 23 of the Decree, cited an article 8 and § 37 quoted

the Decree). This would, in itself, could lead to the repeal of the generally binding decrees.



For completeness it should be noted that the municipalities pursuant to § 3 (2). 6 of law No.

135/1961 Coll. on road traffic, as amended, regulation,

It is for the performance of State Administration (not the Government) in respect of matters

local and special purpose communications. And for these reasons, the law empowers the

the municipality to issue a decree to skiing conditions on security and feasibility of communications

(article 9, paragraph 3, of the Act) and to the eventual publication of a notice

defining the sections of local roads designated for trucks

pending customs clearance (article 24, paragraph 2, of the Act). Although

also affect the scope of the road, these decrees is

Special, closer-the contested Decree resolves other questions – and in particular,

they were issued by the authority of the regulations of the municipality (Council) in the area of delegated

the scope of (public administration).



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.