253/2010 Sb.
FIND
The Constitutional Court
On behalf of the Republic of
The Constitutional Court decided on 8 June 1998. July 2010 in plenary in the composition of the President
Paul Rychetského and Franz Duchoně judges, Vlasta Formánkové, Vojena
Güttlera, Pavla Holländera, Ivana Janů, Vladimir Crust, Dagmar
Lastovecké, Jiří Mucha, Jiří Nykodýma, Miloslava Excellent, Eliška
Wagner and Michael Židlické about the design of the circuit court for Prague 1 on
repeal of section 13 of Act No. 82/1998 Coll., on liability for damage caused by
in the exercise of public authority by a decision or incorrect official procedure and
about the change of the Czech National Council Act No. 357/1992 Coll., on the notarial profession, and their
activities (notarial regulations), as amended, with the participation of
The Chamber of Deputies and Senate of the Parliament of the Czech Republic
as follows:
The proposal is rejected.
Justification
And.
1. the applicant, in accordance with article 7(2). 95 para. 2 of the Constitution of the Czech Republic
requested the Constitutional Court issued a judgment annulling article 13 of law No.
82/1998 Coll., on liability for damage caused in the exercise of public authority
by a decision or incorrect official procedure and amending the law of the Czech
the National Council No. 357/1992 Coll., on the notarial profession and their activities (notarial
of procedure), as amended. Standing dovozoval of § 64
paragraph. 3 of Act No. 182/1993 Coll., on the Constitutional Court, as amended
Regulations (hereinafter referred to as the "law on the Constitutional Court"), and with reference to §
71 c of this act as a party to the proceedings of Parliament, next to each other
President of the Republic and the Government of (note this definition of the parties is
obviously incorrect, because the range of participants for the case where the constitutional
the Court shall decide on the repeal of laws or other legislation, defines the
section 69 of the Act on the Constitutional Court).
2. In the proposal the applicant first briefly described the evolution of the dispute. Specifically,
that the interlocutory judgment of 14 July 2004. 10.2004 No. 30 (C)
47/2003-86 in the case of the plaintiff company CODUM, s. r. o., against
defendant (s) Czech Republic (represented by the Ministry of health)
decided by the claim put forward by the applicant is a reasonable base,
because the applicant has reported health insurance company made to care, but
insurance company under the limitací on the basis of the relevant decisions
the Government has set the value of the point that the limitovala time and the amount of, and
established the reduction of payment for care when you cant these
limits. In the opinion of the applicant Government to release these decisions
has gone beyond its mandate as defined in § 17 paragraph 2. 5 of law No.
48/1997 Coll., on public health insurance and amending and supplementing
some related laws, as amended, and so
committed maladministration within the meaning of section 13 of Act No. 82/1998
Coll. to the appeal of the defendant's judgment of the city court in Prague of the applicant
confirmed and to associate himself with his view that if the Government during issuance
the decision has gone beyond their mandate, committed an error of
the official procedure, within the meaning of Act No. 82/1998 Coll. to the appeal of the defendant
Both of the previous Supreme Court rulings set aside because, in his opinion
the issue of normative legal act is not an official procedure of the Government, but it is
as a result of its regulatory activities, and it may be considered as a
maladministration within the meaning of section 13 of Act No. 82/1998 Coll.
3. the merits of the case the appellant, after the contested provisions, only a citation
recalled that maladministration is not legally defined, and it
due to the multiplicity of its forms, but its wording is vague, so
the interpretation of this provision leads in practice to ensure that any regulatory
the activity of a public authority is de facto intangible, even in
If the public authority to exceed its mandate in a derived
normotvorbě, and so the authorities and the Government can arbitrarily and wantonly in the
derived normotvorbě to exceed the mandate, without if
such a procedure will cause other damages, for breach of its obligations
match. This is contrary to the wording of the article. 2 (2). 2 of the Charter of fundamental
rights and freedoms ("the Charter"), which sets limits to the exercise of State
so, that State power can be exercised only in cases and within the limits of
laid down by law, and the way that the law provides. 4 (4).
3 of the Charter then States that the legal restrictions of fundamental rights and freedoms must
apply equally to all cases that meet the specified conditions, and
Finally, article. paragraph 36. 3 of the Charter then says that everyone has the right to compensation
the damage caused by his unlawful decision of a court, another State authority
or a public authority or incorrect official procedure. Further
the applicant adds that, in assessing whether the above procedure of the Government
When you issue the cited decision is incorrect official procedure,
did not find an option other than the procedure described above Government assessed according
substantive standards, whose annulment is sought.
4. For these reasons, the applicant considered that the provisions of section 13 of the Act
No 82/1998 Coll., is in conflict with the constitutional order of the Czech Republic, and
Therefore, he proposed to the Constitutional Court to annul this provision.
(B).
5. The Chamber of deputies of the Parliament of the United Kingdom on your quick start
representation of a signed her Vice-President Miroslava Němcová, in
representation of the President of Ing. Miloslav Vlcek, merely stated that during
discussion of the Bill in the Committee was the question of the provisions
the second sentence is inserted, worded as follows: "incorrect official procedure is also
violations of the obligation to take action or to issue a decision in law
the prescribed time limit. ", the Bill was then approved in a 3. reading day
12.2. 1998 (out of 167 deputies present voted in favor for, 149 against
No one), so it was received after the completion of the legislative process, properly was
signed by the respective constitutional officials, and declared in the collection of laws. To
custom content design no opinion the Chamber of Deputies.
6. the Senate of the Parliament of the Czech Republic in its representation of a signed
Chairman MUDr. Přemysl Sobotka also (after a recap of the content of the proposal)
He said the process of adopting the law; the fact that the Senate
negotiations on the proposal and the consequent continuation of the negotiations in the
constitutional 30-day period are no longer contaminated, thus the Bill was received in the
accordance with article 6(1). 46 para. 3 of the Constitution of the Czech Republic. He subsequently reported on the
procedure review of the draft on the amendment of the provision, i.e.,.
the adoption of Act No. 159/2006 Coll., Then the Senate pointed out that at the hearing to the
the draft law, even in its negotiations on the draft amendment to the absence of
objections, that would point to the absence of a precise definition of the concept of
"maladministration" and questioned the constitutionality of the provisions of section 13 of the
the law. It deduced that the Senate accepted the opinion on this matter
the petitioner's law, expressed in the explanatory memorandum, according to which a
definition of the term "maladministration" is not possible for its variety of
Lodge. Interpretation of the term is so left legal (especially judicial) practice.
Noted the information submitted in the General section of the explanatory memorandum of the proposal
the amendment, which States that there are areas of State responsibility
for damage caused by the exercise of public authority, that Act No. 82/1998 Coll. on
not covered by the current wording, though the questions current (de lege ferenda
It is explicitly mentioned the liability of the State for damage caused by
unlawful legislation and breach of duty to issue legal
prescription). The assessment of a possible breach of the contested provisions of section 13 of the
Act No. 82/1998 Coll., as amended, with art. 2 (2). 2,
article. 4 (4). 3 and article. paragraph 36. 3 of the Charter leaves fully at the discretion
Of the Constitutional Court.
(C).
7. in the course of the proceedings provide a comprehensive representation of-no prompt
Constitutional Court-CODUM, s. r. o. has stated that the
recognizes that it is not a party or intervener
ongoing at the Constitutional Court, however, that is a participant in the proceedings from which the
the proposal, therefore, emerged with her Supreme Court decision will be immediately
apply to you. After extensive analysis of the issue of the interpretation of maladministration
the procedure and its consequences came to believe that the responsibility of the State for
damage caused by podzákonnou contrary to the legislation of a regulatory
greater legal force is a regular part of democratic rule of law
and that the right to compensation under article comprise the content of the law. paragraph 36. 3
Of the Charter. Therefore, it proposed that the Constitutional Court section 13 of Act No. 82/1998 Coll.
set aside, which the legislature got the possibility to adopt a constitutionally compliant
the legal regulations which will have to contain clear conditions for determining
liability of the State for regulatory activities of the Executive. Due to the
the company CODUM, s. r. o., is not a party to this proceeding
The Constitutional Court could not take into account the content of the expression.
(D).
8. From the file of the District Court for Prague 1, SP. zn. 30 C 47/2003 the constitutional
the Court found that the procedures in which the applicant, a company
CODUM, s. r. o., sought Alternatively (in complement with the explanation that has
mean subjective accumulation in the form of a separate process
the community on the part of the defendants) against the two defendants (marked as
1. Czech Republic-Government of the Czech Republic, 2. The Ministry of finance
The United States, later more accurately labeled as-Czech Republic
The Ministry of Finance of the Czech Republic), then only against the United
Republic-Ministry of finance, damages in the amount of Czk 1,353,037.04
with accessories, which as the non-governmental provozovatelce
the health care facility should be incorrect official procedure
the Government in determining the volume and time limits, on the basis of
There has been a reduction of payments for health care. The circuit court
issued on 14 July. 10.2004 interim judgment No. 30 C 47/2003-86, which
found a claim to the base of the reason, maladministration in so doing
He saw in the determination of the time and the quantitative limits, setting
reduction of payments. cant declared health care and determination
the above point in the so-called. urgent care in the form of a government regulation because Government
so proceeded without legal authorization to such regulation. Defendant (s)
brought an action against the decision of the appeal challenging the laws instituted
adjudication of a matter, the municipal court in Prague, however, the contested decision by way of judgment
of 24 July 2003. 2.2005 No. 20 526/2004-108. In the preamble to
among other things, stated that the objection of the appellant to the effect that the Government bears for their
the decision of the only political responsibility, is not justified. The Government is
the supreme body of executive power, and if your procedure on issue
the decision exceeded the limitations laid down a framework for their
mandate as defined in § 17 paragraph 2. 5 of Act No. 48/1997 Coll., in violation of the
with this law erred in its legislative procedure, which filled the
the characters of maladministration in the exercise of public authority according to § 13
Act No. 82/1998 Coll. the Court of appeal referred to the finding of the Constitutional Court
SP. zn. I. ÚS 245/98 of 22 December 1998. 9.1999 (N 128/15 SbNU 221 ^ *), according to
that Act No. 58/1969 Coll. on liability for damage caused by
by decision of the authority of the State or by its incorrect official procedure,
shall not preclude the exercise of the right of the maladministration of the Government,
Although in § 1 (1). 1 of the Act defined authorities
could commit of maladministration, which recognises
that even in the case where a law for the specific case of the damages resulting from the activities of the
the State excludes or restricts the liability of the State, respectively. It does not adjust, applies
the liability of the State for damage article. paragraph 36. 3 of the Charter directly, as
the result of the constitutional order of the Czech Republic. Added that the fact that the
the actual decision of the Government are normative in nature, in terms of
State responsibility of maladministration without any meaning. Defendant (s)
brought an appeal against the judgment of the municipal court in Prague appeal, whose
justification concentrating, in particular, to the claim that legislative action
There is no official procedure nor the decision-making process, that it is actually a
a license to issue secondary legislation which the Government confers on the Constitution
Of the Czech Republic. The Supreme Court judgment of 26 September. 9.2007 No. 25
CDO 2064/2005-131 both previous judgments set aside (Note per organization
a folder entitled to act for the State has designated the Ministry of
health care), and the matter returned to the Prague 1 District Court for further
control. Has accentuated [using the Constitutional Court SP. zn. Pl. ÚS
24/99 of 23 November. 5.2000 (N 73/18 SbNU 135; 167/2000 Coll.)] normative
the nature of the decision of the Government, IE. as a result of the derived
standardisation, it is not, therefore, individual administrative acts. Therefore,
agreed with the opinion of the Court of appeal dovozujícího the responsibility of the State
for maladministration, even if the Government and the regulatory procedure
He concluded that if regulatory action or inaction of the public
power may be considered as maladministration cannot be inferred
Neither the liability of the State for damage caused by incorrect official procedure
pursuant to section 13 of Act No. 82/1998 Coll. and section 18 of Act No. 58/1969 Coll.
Judgment of the Supreme Court, the applicant challenged the constitutional complaint
(the appellant proceedings pending a decision on a constitutional complaint),
This was the resolution of the Constitutional Court of 22 March. 5.2008, SP. zn. II. THE TC
492/08 (available on http://nalus.usoud.cz) rejected as inadmissible.
Subsequently, the applicant lodged a proposal to bring the case to the Constitutional Court,
This proposal for the Prague 1 District Court upheld (see sub).
(E).
9. The Constitutional Court shall-in accordance with § 68 para. 2 of the Act on the constitutional
Court-to deal with the first question, whether the law, the unconstitutionality of the
provision is raised, has been accepted and published within the limits of the Constitution laid down
competency and constitutionally prescribed way. The claimant seeks the
repeal of section 13 of Act No. 82/1998 Coll., on liability for damage caused by
in the exercise of public authority by a decision or incorrect official procedure and
about the change of the Czech National Council Act No. 357/1992 Coll., on the notarial profession, and their
activities (notarial regulations).
10. From their respective Web sites, it was found that the Bill presented
The Chamber of Deputies, the Government of the day 2. 10.1997. After the prescribed procedure was
resolution No. 646 draft law approved on 12 June 2006. 2.1998; from the present
167 deputies voted in favor, for 149 against no one. The Senate proposal has been forwarded
He began to discuss the day 5. 3. in 1998, when he adopted the resolution No 98020, in which
noted that, owing to the absence of the representative of the Government of the United States
as the promoter of the Bill, which would clarify the opinion of Governments to
the highlight of the observations made by the senators, was seriously impeded by the Senate's work, and
He asked the Prime Minister to rectify; resolution No. 98021
discussion of interrupted. Because the Senate did not continue in the negotiations, a law was
signed by the Chairman of the Chamber of Deputies, the President and the Prime Minister and
promulgated in the collection of laws under no. 31 in the amount of 82/1998 Coll., with
effective from 15. 5.1998.
11. The original text of the contested provisions of section 13 of Act No. 82/1998 Coll. was
the following:
"(1) a State is responsible for damage caused by incorrect official procedure.
Incorrect official procedure is also a breach of the obligation to take action
or issue a decision within the statutory time limit.
(2) the right to compensation has been the incorrect official
the procedure caused by shame. ".
12. Finally, the Government submitted to the Chamber of Deputies on the amendment of Act No.
82/1998 Coll., on 8 June 1998. 9.2005, it approved the 27 September. 1.2006, when
of the 158 deputies voted 131 to them, no one was against.
The Senate debated a draft amendment on 16. 3.2006 and approved it, as amended
transferred the Chamber of Deputies. After signing the respective constitutional
agents was promulgated 27. 4.2006 in the statute book in the amount of 55
under the number 160/2006 Coll. and became effective on the date of publication.
13. Following the amendment to the provisions of § 13 of the sounds of Act No. 82/1998 Coll.
as follows:
(1) a State is responsible for damage caused by incorrect official procedure.
Incorrect official procedure is also a breach of the obligation to take action
or issue a decision within the statutory time limit. Unless the law provides for the
performing an action or decision no time limit shall be considered
maladministration also infringement of the obligation to make action or
issue a decision within a reasonable period of time. ^ 8a)
(2) the right to compensation has been the incorrect official
the procedure caused the damage.
_______________
for example, Article 8a). 5 and 6 of the Convention for the protection of human rights and fundamental
freedoms ".
14. The Constitutional Court notes that Act No. 82/1998 Coll. and Act No.
160/2006 Coll. was adopted and issued within the limits of the Constitution laid down
competency and constitutionally in the prescribed manner, and that in such proceedings
did not find anything that would connect him to the opposite conclusion.
(F).
15. the Constitutional Court of first instance assessed the question as to whether the applicant is entitled to
to request the annulment of the contested provisions of Act No. 82/1998 Coll.
Locus standi to file an application to the Court for annulment of the legal act, and
or its provisions, defined in article 1. 95 para. 2 of the Constitution of the Czech Republic
so that, if the Court comes to the conclusion that the law to be in the solution of
things used is in conflict with the constitutional order, refer the matter to the constitutional
the Court. In § 64 para. 3 of the law on the Constitutional Court States that the proposal for the
repeal of the law or its individual provisions is also entitled to
the Court in the context of its decision-making activities under art. 95 para. 2
The Constitution of the United States.
16. in the present case (see the findings of the Constitutional Court from the file
The District Court for Prague 1, SP. zn. 30 C 47/2003) with respect to the subject
the dispute, in which the applicants sought to intervener refunds
damages arising out of the alleged improper official procedure, for the application
the contested provisions, therefore, the requirement of article is populated. 95 para. 2 of the Constitution
Of the Czech Republic. This application of section 13 of Act No. 82/1998 Coll., as amended by
amended, is the result of the procedure chosen by the Court of first
degree, even to its accuracy may exist reasonable doubt.
The Constitutional Court, however, admits that even in such situations, it may be
the claimant, i.e.,. the General Court, considered actively legitimovaného to
submission of the application for annulment of the provisions of the legislation it intends to when
deciding to use. For this reason, the Constitutional Court proceeded to factual
examination of the application. In case of doubt concerning the locus standi
the applicant must choose such an interpretation, which would be a substantive
review of the draft permit.
(G).
17. No constitutional objection of the plaintiff against the contested provisions
usually the claim that maladministration is not in its meaning of
defined, due to the multiplicity of its forms (as is clear from the explanatory memorandum
message to the law), but its wording is so vague, so its
interpretation leads in practice to ensure that any regulatory activities of the authority
the public authority is de facto intangible, even in the event that the authority
the public can exceed his powers when the derived normotvorbě, and so
in turn, the authorities and the Government can arbitrarily and wantonly in a derived
normotvorbě exceed the mandate, without being in the event that such
the procedure causes other damage for breach of his obligation to match
(part III. of the proposal, see above, point 3). The Constitutional Court with that statement
does not agree. It is the role of each of the General Court to appropriate
the interpretative methods he clarified the concept of "wrong content
the official procedure ". It is notorietou that there is a set of interpretative
rules, so that, for example, the contents of the concept must first be
discovered resources (in terms of the possible grammatical meaning
each used the terms), logical (in terms of mutual
follow up of used terms) or systemic (in terms of the sort of terms
in the structure of the whole piece of legislation), etc.; only an adequate use of
These rules can lead to the conclusion that the incorrect official procedure
is any procedure of a public authority, in the exercise in
contrary to the generally binding legal regulations, or in violation of the principles of
its performance. If it is possible in this way to interpret the term
"maladministration", the Constitutional Court does not see any contradiction
the contested provisions with article. 2 (2). 2 of the Charter or with the article. 4 (4). 3
Of the Charter.
18. The Constitutional Court considers necessary to assess the real motives
the plaintiff, leading to the formulation of the claim for annulment of the contested
provisions. It is clear that the real motive of the proposal lies in disagreement with
the legal opinion of the Supreme Court expressed in the decision on the appeal,
that interprets "maladministration" in a way that it is not
regulatory action or inaction of the public authority (cf.
the preamble on page 4 of the judgment of the Supreme Court of 26 June. 9.2007 No. j.
25 Cdo 2064/2005-131), and by the reluctance to follow this view. Specifically,
This means that it is not about the uncertainty or vagueness of the wording of the contested
provisions, but about whether maladministration includes the release of
normative legal act of the Executive, which was contrary to the norm
greater legal force. The conclusion of the Supreme Court is also the legal opinion
The Constitutional Court expressed in its opinion SP. zn. PL. ÚS-Wed 27/09 from
28 June 1999. 4.2009 (136/2009 Sb.). The uniqueness of the rights to compensation
incurred as a result of the unlawful inaction the legislature (which here
It is not) the Constitutional Court inferred directly from the constitutional order and of the award
Of the Constitutional Court.
19. the Constitutional Court also adds that the applicant (company CODUM, s. r. o.)
She was also a participant in the proceedings at the Constitutional Court under the SP. zn. III.
ÚS 406/99 of 9 December 1999. 11.2000 (N 165/20 SbNU 171), in which they were attacked
specific articles of the decision of the Government of the Czech Republic No. 657 of 23 December 2003. 6.
1999 and the decision of the Government of the Czech Republic No. 1374 dated March 22. 12.1999.
The Constitutional Court finding of 9 June. 11.2000 reject the proposal as a proposal submitted
unauthorized persons, with reference to the findings in the matter of SP. zn. PL. ÚS 24/99
of 23 December 2003. 5.2000 (N 73/18 SbNU 135; 167/2000 Coll.), in which he admitted
This decision of the Government the nature of law (note this
the findings included only referred to two specific decision, it cannot be
generalize to any decision of the Government). In the light of these conclusions, it was
to the applicant, that the requested performance after the competent health insurance company,
and in these proceedings, the Court could-in the meaning of art. 95 para. 1 of the Constitution of the United
-assess the compliance of this legislation with the law (possibly with
the international agreement that is part of the legal order of the Czech Republic).
20. in relation to the custom design, after completion of the proceedings, the Constitutional Court
notes that the grounds for revocation are not fulfilled, the provisions of section 13 of the Act.
82/1998 Coll., as amended, since this provision is not
itself in breach of article. 2 (2). 2 of the Charter or with the article. 4 (4). 3
And finally, even with the article. paragraph 36. 3 of the Charter, and therefore, the design of the circuit
Court for Prague 1, pursuant to section 70 para. 2 Act No. 182/1993 Coll., on the constitutional
the Court rejected.
The President of the Constitutional Court:
JUDr. Rychetský in r.
* Note. Red: a collection of findings and resolutions of the Constitutional Court, 15 u.s.c.
find no. 128, p. 221
