71/1997 Coll. The Plenum of the Constitutional Court of the Czech Republic on behalf of the Czech Republic The Czech Constitutional Court ruled on 18 March 1997 in plenary on the proposal of the head of the District Office in Mlada Boleslav's annul generally binding decree of Mlada Boleslav No. 883 dated September 17, 1996 that regulate the individual sources of pollution of the atmosphere in the city as follows : Decree of Mlada Boleslav No. 883 dated September 17, 1996 that regulate the individual sources of air pollution in the city is repealed the day of its publication in the Collection of Laws. Reason 1. Head of the District Office in Mlada Boleslav filing dated 21. 11.1996, supplemented on 5. 12.1996 requested the annulment of the decree of Mlada Boleslav No. 883 of 17. 9.196 for the regulation of individual sources of air pollution in the territory City on the grounds that the cited ordinance restricts the citizens of Mumbai beyond the law, so it is in conflict with Art. 2.4 of the Constitution of the Czech Republic (the "Constitution"). The petitioner got through to the attached draft statement of the Ministry of the Environment dated 10. 10.1996, ref. No. 410/1360/96, in whose opinion the provisions of § 14 para. 1 point. r) Act No. 367/1990 Coll., on municipalities (Municipal Establishment), as amended (hereinafter the ' Law on Municipalities ") can not be considered as a legal basis for the issuance of the ordinance in the municipal jurisdiction in the sense that that in the games village to the citizens generally exercised unilateral bans. At the same time said this statutory provision can not be understood as authorizing the issuance of the ordinance, but only as a "defining municipal jurisdiction." The petitioner put on the draft decision of the District Office in Mlada Boleslav dated 22. 10.1996, ref. No. 2246/96 the environment in which performance was cited generally binding ordinance (approved on 17. 9.1996 and effective from 1. 10.1996) suspended. 2. The text of the decree is as follows: Generally binding decree No. 883 Town Mladá Boleslav that regulate individual sources of air pollution in the city Municipal council of Mlada Boleslav, in accordance with § 36 para. 1 point. (f)) of the Act No. 367/1990 Coll., on municipalities, as amended, and in accordance with the provisions of § 5 para. 2 point. and) Act No. 389/1991 Coll., on state administration in air protection and payments for air pollution, as amended, adopted a resolution on this generally binding ordinance section 1 Introductory provisions This ordinance regulates the generally binding rights and duties of citizens, legal entities and individuals "People in the cadastral area of the town of Mlada Boleslav when changing the heating medium , if necessary. changing the heating of buildings, thermal energy or heat water and further progress in establishing a new, small source of air pollution. section 2 of the Limitation This decree applies to the cadastral area of Mladá Boleslav and all legal and natural persons who are active in the cadastral area of the town of Mlada Boleslav. § 3 Modifications of the heating medium and the change in the method of heating within the city will not be permitted:-go to the individual production of thermal energy for heating and hot water in the house, if there is already a connection to this object on a central distribution of heat and hot water-change the fuel used for combustion if the quality and quantity of emissions of this fuel will be worse than current fuels. The founder of a new small sources (stationary fuel-burning equipment) is required to use available and environmentally friendly in that area the best energy source. § 4 New sources of pollution when establishing new small heat sources of air pollution (stationary fuel-burning equipment and resources; Secondary dust) on the cadastral area of the town of Mlada Boleslav's founder is obliged it to consult with the Department of the Environment, Municipal Office in Mlada Boleslav suitability of this plan in the locality. Environment department will be laid down conditions for the operation of this source of pollution and compliance with those conditions will be subsequently checked. § 5 Definitions A small source of air pollution [§ 3 para. 1 point c) Act No. 211/1994 Coll.] -stationary fuel combustion in thermal power up to 200 kW-production process equipment not falling into medium and large resources-areas where work done, which can cause air pollution-dump fuel, raw materials, products and captured emitted pollutants-Other facilities and activities polluting the air. § 6 Penalties Violation of this generally binding ordinance will be punished in accordance with special regulations (Act No. 367/1990 Coll., On municipalities, and Act No. 200/1990 Coll., On misdemeanors, as amended). section 7 of the Effectiveness of This ordinance becomes effective generally binding on 1 October 1996. 3. In the repeal of the Act or any other legislation, the Constitutional Court is required pursuant to § 68 para. 2 of Act No. 182/1993 Coll., On the Constitutional Court, firstly it examine whether the contested regulation issued within the bounds of constitutionally provided jurisdiction and in a constitutionally prescribed manner. Therefore, the Constitutional Court from the town of Mlada Boleslav requested documents evidencing the proper adoption decree, as well as its proper publication under the Municipalities Act. For information, the mayor and the minutes of the meeting of the City Council in Cairo dated 17. 9. in 1996, it was found that the ordinance was approved by the Municipal Assembly in Cairo on 17. 9. the 1996 Resolution No. 883, for which a total of 33 representatives from a total of 25 councilors present voted 17 members, 3 members voted against and 5 abstentions. It is therefore clear that a resolution on the adoption of the ordinance was approved by the quorum that is established by law (section 38 par. 5 of the Municipalities Act). The contested decree was posted on the official board of the municipal office from 18 to 9 to 7 on the 10th in 1996, so it took effect on 3 10th, 1996 (§ 16 par 3 and 4 of the Municipalities Act). In this respect, therefore, the wording of the contested ordinance, if it provides for its effectiveness on 1 10th 1996 is incorrect. The Constitutional Court, however, that the contested regulation II was adopted and issued in a constitutionally prescribed manner not in the matter influenced by inaccurately quoted the decree setting the date, which comes into force. The Constitutional Court on the comments of Mlada Boleslav of 6 1, 1997 found that the City Council in Cairo at its meeting on 29. 10.1996 noted the mentioned decision of the district office, which was suspended performance decree and resolution No. 960 decided "not to modify the current wording of the decree and the wait for the opinion of the Constitutional Court." According to § 44 par. 2 of Act No. 182/1993 Coll. The Constitutional Court may with the consent of the parties waive a hearing, unless such a hearing is expected this to clarify the matter. Because as head of the district office and the mayor of this agreement have spoken, the Constitutional Court from hearing dropped, because otherwise the conditions cited legal provisions are met. 4. The first question which the Constitutional Court dealt with an assessment. whether the Decree falls within the independent or delegated powers of municipalities. In its introduction, it says that the City Council of Mlada Boleslav has passed the generally binding decree "in accordance with § 36 para. 1 point. (F)) of the Act No. 367/1990 Coll., On municipalities, as amended, and in accordance with the provisions of § 5 para. 2.) of the Act No. 389/1991 Coll., on state administration in air protection and payments for air pollution, as amended. "Area separate and delegated powers of municipalities strictly distinguishes longer Constitution, as under Article. 104, paragraph. 3, "the council, within the limits of their jurisdiction issue generally binding ordinances" (ie the municipalities), while according to Art. 79.3, "territorial government authorities on the basis and within the law's legislate if empowered to do so by law" (ie delegated powers). The fact that the city council Mlada Boleslav refers this § 5 para. 2 of Act No. 389/1991 Coll., On first glance, there is (only) the impression that the regulation was adopted under delegated powers of the municipality, because according to section 24 paragraph. 1 of the Municipalities Act and the municipality may issue generally binding ordinances in matters falling under delegated powers under the authority of the law and within its limits. If the decree was actually taken within the delegated powers, it would of course be proposal of the head of the district office according to § 43 par. 1 point. d) of Act No. 182/1993 Coll. an oral hearing is rejected because it would be a petition submitted by someone apparently unauthorized (ust. § 64 par. 3. Act). The Constitutional Court notes that according to § 5 para. 2 point. and) Act No. 389/1991 Coll. municipal authorities are empowered only to enable them to establish a generally binding decree (1) urban zones with Traffic restrictions, the sources of pollution, (2.) The specific requirements for the type of fuel for small polluters. The content of the decree is clear, however, that it can not be cited under the legal provisions subordinate and therefore reference is made to section 5 para. 2 point. and) Act No. 389/1991 Coll. It is wrong. Because neither in any other law is not authorized it to issue the contested decree contained, the Constitutional Court considers that the ordinance under delegated powers of the village was not released. The exhaustive list of competencies village in the autonomous powers defined in § 14 of the Municipalities Act. Under paragraph. 1 point. r) of this Regulation in municipal jurisdiction expressly include "clean village, removal of domestic waste and its safe disposal, water supply, drainage and wastewater treatment." Under paragraph 2 of the same provision of the village in a separate application also provides "protection and creation of a healthy environment." This Constitutional Court concludes that the contested ordinance defining the issues treated under municipal jurisdiction belongs. Therefore, the Constitutional Court also considered the proposal it initiate proceedings on the substantive and/or side. According to settled case-law of the Constitutional Court, however, the list contained in the cited section 14 para. 1 of the Municipalities Act, it is "necessary in terms of its interpretation in terms of statutory authorization this issue generally binding municipal ordinances regarded as a definitive list. His demonstrative diction, as well as the universality of demarcation autonomy of municipalities contained in § 14 para. 2 of the Municipalities Act should be applied only to the self-governing scope of the municipality in which the municipality does not act as an entity determines the obligations of a citizen and unilateral commands and prohibitions "(Judgment pl. ÚS 5/93, the Constitutional Court: Collection of Decisions-vol. 1st, CH Beck, Prague, 1994, p. 35). Indeed, the Constitutional Court has repeatedly held that, under Article. 4, paragraph. 1 of the Charter of Fundamental Rights and Freedoms (the "Charter"), the obligation may be imposed only by law and within its limits and that Article. 2.4 of the Constitution and under the Article. 2.3 of the Charter no one should be forced to do what the law does. Of those provisions for the scope of the community shows that in cases where the municipality acts as an entity determines the citizen's obligation unilateral bans and orders, ie. Especially issues the generally binding regulations, whose contents are legal obligations, it can do so only if an explicit statutory authorization (see eg. the findings pl. ÚS 5/93 or PL. ÚS 26/93). From the above considerations that also contested decree-issued in terms of defining the issues in the municipality's independent jurisdiction-which for legal entities and individuals operating in the administrative area of Ikeja it re-establishes and legal obligation (eg. And the ban on the transition to the individual production of heat energy, the ban on changes in fuel an obligation that discuss the establishment of new small sources of air pollution, etc.) and could only in the case of express statutory authorization. Such authorization does not exist. Therefore, the Constitutional Court II that the ordinance violates Article. 4, paragraph. 1 of the Charter, Art. 2.4 of the Constitution and Art. 2.3 of the Charter. Therefore, the Constitutional Court upheld a draft decree completely of Mlada Boleslav No. 883 of 17. 9.1996 canceled the day of its publication in the Collection of Laws. Chairman of the Constitutional Court of the Czech Republic. Kessler vr