568/2004 Sb.
FIND
The Constitutional Court
On behalf of the United States
The Constitutional Court ruled on 20 April. October 2004 in plenary in the composition of JUDr.
Stanislav Balík, JUDr. Francis Skinner, JUDr. Turgut Güttler, JUDr.
Pavel Holländer, JUDr. Ivana Janů, JUDr. Dagmar Lastovecká, JUDr. Jiří
Mucha, JUDr. Jan Musil, JUDr. Jiří Nykodým, JUDr. Pavel Rychetský,
JUDr. Miloslav Výborný, JUDr. Elisabeth Wagner and JUDr. Michael
April on the proposal for a group of MPs of the House of the Czech Parliament
Republic for annulment of the Decree of the Ministry of labour and Social Affairs No.
405/2003 Coll., which repeals Decree No. 19/1991 Coll., on the
the application and the material security of workers in the mining industry in the long term
unfit to work,
as follows:
I. application for annulment of the Decree of the Ministry of labour and Social Affairs No.
405/2003 Coll., which repeals Decree No. 19/1991 Coll., on the
the application and the material security of workers in the mining industry in the long term
unfit for the work, shall be rejected.
II. The proposal for the admission of the participation of the Trade Union of workers of mining,
Geology and oil industry as the intervention is dismissed.
Justification
(I).
The proposal, which was delivered to the Constitutional Court the day the Group of 40 19.12.2003
members of the Chamber of deputies of the Parliament of the United Kingdom sought
the cancellation of the Decree of the Ministry of labour and Social Affairs No. 405/2003 Coll.
repealing Decree No. 19/1991 Coll., on the application and
the material security of workers in the mining industry in the long term unfit for
previous work.
As the appellants have stated under section 1 (1). 1 the contested Decree has been
abolition of Decree No. 19/1991, published by the Federal Ministry of
labour and Social Affairs of Czechoslovakia under the authority contained in section 148a and
§ 275 paragraph 2. 1 (b). b) of Act No. 65/1965 Coll., the labour code, as amended by
as to the entry into force of Act No. 74/1994 Coll., amending and
supplementing the Labour Code No. 65/1965 Coll., as amended, and
some other laws.
According to the article. I, point 95 of Act No. 74/1994 Coll., in the labour code set aside section
and under article 148a. I changed the wording of § 146 275 paragraph 2. 1 so that
the subordinate legislation. Legislature gave
According to the plaintiffs show that continues to be the obligation to establish, change, or
disturbed only by law. This is a constitutional command, which continues to be
The Parliament of the United Kingdom have always respected and the intention of the legislature is even
in the future such relationships, which are the official character,
keep on legal, not the subordinate level. The plaintiffs, therefore,
consider that when the legislature Decree in derogačních provisions of
abolished, demonstrated by the fact that with the law referred to therein identified
and it shall be deemed to continue to be a factually justified. According to the plaintiffs, the same
judikuje court system, which has, for example, the judgment of the
The Supreme Court of 12.8.1998 SP. zn. 21 Cdo 1798/98.
The Minister of labour and Social Affairs nevertheless, according to the plaintiffs, issued a
the contested Decree under section 9 and section 24 of Act No. 2/1969 Coll., on establishment of the
ministries and other central bodies of the State administration of the Czech
Socialist Republic, as amended, (hereinafter referred to as
"competences") without being empowered by law to issue. Neither
one of the above statutory provision cannot be regarded as
provisions authorizing the release of the podzákonného legislation.
Constitution of the Czech Republic (hereinafter the "Constitution") in the article. paragraph 79. 3 provides that
ministries and other administrative authorities and institutions of local and regional authorities can
the basis and within the limits of the law to issue legislation if they are to
mandated by law. Part of the rule of law, according to the appellants, there is no
the law, which would generally authorizes the Ministry to issue a General
binding legislation. Such authorisation does not contain section 9 or section
14 the competence of law.
Therefore, according to the plaintiffs ' legal order does not contain any law that would
include a mandate to issue a decree, even if it were a decree
containing only the cancellation provisions. If there were any substantive reasons
to cancel the order, it could happen only by law.
The appellants have expressed the belief that the Minister's procedure is in gross
contrary to the constitutional order, as a valid prescription issued for implementing
the basis of the already non-existent mandate cannot be cancelled otherwise than by the law.
Therefore, proposed to the Constitutional Court to annul all the contested Decree.
Proceedings of the design was submitted by resolution of the plenum of the Constitutional Court of the
23.3.2004 discontinued due to the lack of the cast of the Constitutional Court.
Obstacle to the hearing on 6 June 1999 dismissing the proposal, President
the Republic was named the twelfth constitutional court judge. After this date,
Therefore, the Constitutional Court continued the proceedings and pursuant to § 69 para. 1 of law No.
182/1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as
"the law on the Constitutional Court") has requested the Ministry of labour representation and
Social Affairs.
The Ministry of labour and Social Affairs (hereinafter referred to as "the MINISTRY") in its
observations of July 26, 2004 by summarising the reasons that led to the release of
the contested Decree. According to the MINISTRY OF LABOUR, it was all about constitutional law
reasons arising from article. 2 (2). 4 of the Constitution and article. 2 (2). 3 of the Charter
fundamental rights and freedoms ("the Charter"). The Charter provides that
everyone may do what is not prohibited by law, and nobody may be compelled to
do what the law does not oblige. According to the article. 11 (1) 4 of the Charter is the expropriation of
or forced limitation of property rights can be in the public interest only
under the law, and for compensation. The provisions of article. paragraph 79. 3 of the Constitution then
provides that the ministries, other administrative authorities and bodies of territorial self-government
may issue legal regulations on the basis of and within the law, if they are to
It mandated by law.
MINISTRY OF LABOUR in this regard, also referring to the finding of the Constitutional Court SP. zn. PL.
TC 45/2000 [collection of findings and resolutions of the Constitutional Court (hereinafter referred to as "collection
the decision "), volume 21, finding no. 30; promulgated under no. 96/2001.]
According to which the constitutional definition of the derived Executive rests on standardisation
the following principles: other legislation must be issued by an authorized
body, cannot intervene in the Affairs of the reserved Act (cannot, therefore,
determine the primary rights and obligations), and must flow from the obvious will of the
the legislature to modify the above the legal standard (must be open space for
sphere of other legislation).
Decree No. 19/1991 Coll. issued prior to the adoption of the Constitution and the Charter of the
the basis of the already canceled zmocňovacích the provisions contained in the civil code
the work referred to constitutional standards or legal opinion of the constitutional citovanému
the Court did not meet, as it went beyond the scope and limits of legal provisions,
employers in the mining industry to provide their employees
superior claims of its resources and perform other
the obligations laid down by this Decree.
Decree No. 19/1991 so was at odds with the above constitutional
the standards that define the constitutional boundaries for the possibility of legal restrictions
freedom and right of ownership, and therefore also with the constitutional order and laws
Of the Czech Republic. The principles of democratic rule of law is contrary to
arrangements with regard to its nature and severity of the impact on
the employer should be modified directly by the law was invoked on
the basis of the implementing regulation, which was issued at the time of centralized control
State-owned enterprises (referred to decree it replaced, with effect from 1.2.1991
substantively similar to the Federal Decree of the Ministry of labour and social
things no. 102/1987 Coll., on the application and the material security
workers permanently unfit for the work).
MINISTRY OF LABOUR also argued that under the repealed decrees were employers in
mining required to provide personnel of specified closer to their
means of severance pay in the amount of 1 to 14násobku average monthly
earnings, although the legal limits of the provision of severance pay at the time edited the
the existence of the Decree, section 60a of the labour code so that the employees belong to the
severance pay only upon termination of employment, and in the amount of twice the
average earnings. In the collective agreement, or in the internal
This code may be severance pay increase by more multiples of average earnings.
In connection with the cancellation of the Decree No. 19/1991 Coll. and in accordance with the
adopted section 60a paragraph 1. 2 of the Labour Code were enclosed in each
mining companies appropriate additions to the collective agreements which
govern the provision of severance pay in cases of termination of employment
due to health reasons.
Employers in the mining industry were under the repealed Ordinance shall be obliged to
workers unable to provide from their previous work
the funds pay compensation equal to the difference between the average gross
earnings before converting or the termination of the employment relationship and rough
earnings accruing to the new workplace. While the statutory limits
the provision of wage claims are defined by Act No. 1/1992 Coll., on the
wages, remuneration for work stand-by and average earnings, as amended by
amended. As regards the limits to the use of the implementing regulation in the
these cases, empowering § 8 para. 3 of Act No. 1/1992 Coll., as amended by
amended, the Government establish, by regulation, conditions under which only
the competent authority shall pay the cost of any government wage
the employer who provided it. Act No. 1/1992 Coll. or other law
However, it does not allow the implementing regulation establish the obligation of the employer
provide wage compensation (wage) as well as in the other cases,
in particular, in cases that were laid down in section 7 of Decree No. 19/1991.
Employers in the mining industry were obliged to fulfil without basis in law
against the said circuit employees according to Decree No. 19/1991.
specific obligations which no law does not impose them. Employers are so
were required to transfer referred to other appropriate personnel to work on
they were obliged to ensure that they allow for retraining in accordance with
the specific provisions, to discuss the possibility of a job on the other
work after retraining.
In General, therefore, according to the MINISTRY OF LABOUR stated that the repealed Decree No. 19/1991
Coll. in such cases replaced improperly a legal
adjustment and that the Executive power to its release and by leaving in effect even after
the adoption of the Constitution has assumed the permissions, which according to the article. 2 (2). 4 of the Constitution and
article. 2 (2). 3 of the Charter, it is for only the lawmakers. Therefore, The MINISTRY Of LABOUR
to cancel this order has acceded.
Decree No. 19/1991 was released on the basis of the mandate contained in
31.5.1994 in § and § 275 paragraph 148a. 1 (b). (b)) of the labour code. Both referred to
the mandate was after the adoption of the Constitution and the Charter revoked by law No. 74/1994
Coll. of the legislature did so with regard to the need to respect the already
the said constitutional principle that no one shall be forced to do what the law
does not, and then referred to the mandate to ensure that the Executive power is no longer
She did not have permission to save employers in the above
obligations. However, the Executive issued Decree No. 19/1991 Coll. in parallel
was not cancelled, although it was manifestly incompatible with article. 2 (2). 4 of the Constitution, article.
2 (2). 3 of the Charter and article. paragraph 79. 3 of the Constitution, and it apparently because of fears of
adoption of such a step, the staff of the adverse in mining. Therefore, to
abolition of Decree No. 19/1991 was contested proposal
Decree No. 405/2003 Coll.
Prepared by the MINISTRY OF LABOUR referred to the cancellation notice in accordance with art. 10, paragraph 1. 3
the legislative rules of the Government of the United States, according to which "If the
a bill designed to repeal the law or part thereof for which the
It is issued by a legal provision is suggested in the cancellation provisions of the proposal
the Act of cancellation and of the legislation. If prior to the application of this
the procedure is in the legal order of the implementing regulation, which was issued on the basis
the enabling provisions of the former, proceed as follows: If
issued by the law decree, Decree, in the introductory sentence
relevant section of the law on the establishment of ministries and other
Central Government authorities. " Decree No. 405/2003 Coll., therefore,
referring to section 9 and section 24 of the Act the competence.
With regard to the earlier decision of the Supreme Court concerning the Decree
No. 19/1991 Coll., referred to by the appellants, not this
the decision by the MINISTRY OF LABOUR that the decree is in accordance with the constitutional
policy, but merely stated that the decree is a valid part of the
the rule of law, i.e. that was issued in the prescribed manner and that it is necessary to
According to them, until it will be laid down in accordance with
the legal order cancelled. In any case, it was not the Supreme Court, and with the
regard to the principles of the rule of law nor could be,
disputed the right of the Ministry Decree No. 19/1991 Coll. repealed.
The Constitutional Court pursuant to § 69 para. 2 of the Act on the Constitutional Court posted by
the Ombudsman's proposal, saying that the statutory time limit, whether the said
shall enter the proceedings as intervener. The Ombudsman
of non-13.7.2004 showed the will to enter into this control.
Submission of the appellants informed the Constitutional Court 2.9.2004 that lasts
at the oral proceedings before a Chamber of the Constitutional Court.
At a hearing held on the appellants have extended 20.10.2004
the arguments contained in the written proposal on the argument that the abolition of the Decree
has violated the principle of the protection of acquired rights of the MINISTRY OF LABOUR. The representative of the MINISTRY OF LABOUR in oral
the hearing, that the reasons for the cancellation of the decree can be divided into two circuits.
One circuit are the reasons that the MLSA is a constitutional rozvedlo in
comments on the proposal in writing, the second circuit lies in the fact that
Czech Republic joined the European Union. According to the information which was
MINISTRY OF LABOUR available, would rely on this above-standard performance
guaranteed by a decree greatly impair the competitiveness of enterprises,
employing these employees, in European conditions.
II.
The Constitutional Court first noted that the petition was filed by authorized
entity in accordance with § 64 para. 2 (a). (b)) of the Act on the Constitutional Court (in the
the case of a group of 40 members, when in the annex to the proposal for a absentuje
the signature of one of the appellants ' nadepsaných JUDr. Zuzana Rujbrové,
Member of the Chamber of deputies of the Parliament of the United Kingdom) and this is the
proposal of permissible (section 66 of the Act on the Constitutional Court, and on the other hand).
The Constitutional Court notes, however, that has not complied with the suggestion that as a side
He was a participant in the action of the Workers Union of mining,
Geology and oil industry. According to § 28 para. 1 of the law on the constitutional
court proceedings before the Constitutional Court the appellant and those of the
where the law on the Constitutional Court shall determine. Also the interveners
the proceedings are in accordance with § 28 para. 2 of the Act on the Constitutional Court only those who
the law on the Constitutional Court admits a position. In the case of
the abolition of laws and other legislation (abstract review of the standards)
is a party to the proceedings the person who issued the legislation side
a participant in proceedings may be other legislation public
the Ombudsman, if in this sense in the statutory time limit
Express.
The law on the Constitutional Court, therefore, in terms of the definition of the parties and
the interveners built on the principle of legality, i.e., the applicable
operators are gaining such status directly from the law. The Constitutional Court therefore
in this proceeding the competent Trade Union-as proposed by the
Group members-add. Such procedural status of the Trade Union
Organization as an interest grouping, in which institucionalizují
Economic and social interests of certain groups of employees, preventing
the very nature of proceedings for annulment of acts and other legislation. Is
no doubt that the trade unions as well as organisations
employers in specific fields have in the modern economy
State your role in terms of the representation and aggregation
the various interests and requirements that are not always found in other platform
institutions of representative parliamentary democracy. On the other hand, it is
However, it should be respected, that the circle of entities that are legally
position of the parties and the interveners, the legislature
as a candidate, so that to a certain extent reflect the principles on which it is built
The constitutional order of the Czech Republic (that is, above all, the principle of democratic
the legitimacy of the authorities of the State, the principle of the separation of powers and the protection of minorities), and to
corresponds to the subject of the proceedings (i.e., assessment of compliance
legislation with the constitutional order of the Czech Republic). Those principles
corresponds to the statutory definition of the circle of participants and interveners
the revocation of laws and other legal provisions (article 64 of the law on
The Constitutional Court). The expansion of the participants or the interveners on the
other subjects-for example, political parties, interest groups, etc. -by
It was in violation of the right to the aforementioned principles, on which the State
the power and the political system in the Czech Republic built, and this would be an
manifestations of the principles, which are typical for a model different political
systems (such as the definition of neokorporativismus-see for example.
Schubert, k.: Interessenvermittlung und staatliche Regulation. Opladen,
Westdeutscher Verlag 1989-or consociative democracy model-see the
This, for example. Lijphart, A.: Consotional Democracy. World Politics, No.
2/1969, pp. 207-225, in English of Consociative democracy. In Říchová,
B.-Lisa, a. (red.): an anthology of the world's political scientists. ALL Prague, 1995,
page 9-32.).
The fact that a trade union or a Trade Union does not and cannot
have in the revocation of laws and other legislation of the status
intervention, possibly does not prevent is the Constitutional Court, in
framework of the implementation of the evidence asked for an opinion. In the present case, it
However, the Constitutional Court considered it superfluous, since-as will be evidenced further
-the subject of the examination of the Constitutional Court did not question the social and
the economic rights of a particular circuit of employees covered
the scope of the repealed Ordinance, but above all the question of the extent of the powers and
competencies and the question of the relationship between the legislative and the Executive in
connection with the derived normotvorbou.
Having regard to these facts, the Constitutional Court rejected the plaintiffs ' proposal to
admission of abetting the Trade Union of workers of mining, geology
and the oil industry as a secondary party to the proceedings.
III.
And.
Pursuant to § 68 para. 2 of the Act on the Constitutional Court is the task of the Constitutional Court in the
proceedings on the constitutionality of laws and other legislation to assess whether it is
the content of the contested regulation in accordance with the constitutional order of the Czech
States, and to determine whether it was issued within the limits of the Constitution laid down
competency and constitutionally prescribed way.
With its proposal the appellants attacked the Ordinance of the Ministry of labour and
Social Affairs No 405/2003 Coll., according to which there has been with effect from the date of
10.12.2003 to cancel the Decree of the Federal Ministry of labour and
Social Affairs, no. 19/1991 Coll., Decree No. 19/1991 was released on
the basis of the statutory mandate contained in § and § 275 paragraph 148a. 1 (b). (b))
the labour code, in the version applicable to the entry into force of Act No. 74/1994
Coll., that statutory authorization for the adoption of the Decree.
In the present case, the question of the content of the contested Law, which has been
only to the repeal of Decree No. 19/1991, blends of assessing
whether the contested Decree published by the MINISTRY OF LABOUR within their powers and competencies, the
or whether it is constitutionally Conformal procedure the Ministry when an infected
the Decree abolished the previous Ordinance in circumstances where the enabling legal
the provisions on the basis of the previous decree was issued, it was
repealed by the legislature.
In its proposal the appellants formulated the more general question of whether the
ministries and other administrative authorities have derived (secondary)
regulatory powers to cancel previous legislation in podzákonný
situations in which is statutorily authorised according to the procedure for the adoption of the original
subordinate legislation. According to the plaintiffs, there is at present in the
the legal order of no law that would include a mandate to issue such
the Decree, even if it were a decree containing only the cancellation
provisions. A valid piece of legislation issued on the basis of the already non-existent
You cannot cancel the authorisation according to the plaintiffs, other than by law.
In other words, the appellants shall be submitted to the Constitutional Court's opinion, based on
which is constitutionally Conformal only procedure where the legislature authorizes
Executive express cancellation secondary legislation or
such an adjustment in the form of the Act cancels itself. Another procedure, which in this
the case of opting for MINISTRY, according to the plaintiffs, in conflict with the constitutional
policy in the United States.
(B).
State power in the Czech Republic is based on a specific model
separation of powers (article 2, paragraph 1, of the Constitution). Mutual relations between the
the powers of the Constitution are designed to create a comprehensive system
fuses and balancing. Such a system is implemented in practice
through a variety of methods to evidence of State authorities, ways
their kreování, the scope and content of the powers and competences, which are
State authorities negotiate. In the assessment of the scope and content of the powers
individual State authorities of constitutional aspects should therefore be
is always measured just running fuse box and balancing, in the wider
the perspective of the principle of the separation of powers.
One of the key areas in which the principle of the separation of powers is reflected,
is a division of jurisdiction between the regulatory sphere of legislative and Executive
too much. While the legislative power is endowed with General powers to create
law, the Executive power is in the area of norm-setting Constitution limited
only to create derived, secondary legislation, if
This legislative expressly empowered the legislature,
which provides the Executive framework and the limits of standardisation.
According to the article. paragraph 79. 3 of the Constitution can Ministry, other administrative authorities and
authorities on the basis and within the limits of the law legal
regulations, if they are authorised to do so by law.
According to the Constitutional Court, it is necessary to insist on the distinction of powers and
competency. The powers of a public authority itself must be understood
implementation of State power in the appropriate form (i.e. in the form of regulatory or
individual decision), while competence are already quite specific
material definition questions realized in the process of exercise the powers. Under
This angle of view is necessary to interpret article. paragraph 79. 3 of the Constitution, and that way,
the competence of the ministries and other administrative authorities, or the authorities
regional and local authorities to issue derived secondary legislation is
Article already created. paragraph 79. 3 of the Constitution. This is a legal standard
which in general terms determined by the power of the executive authorities to the formation
secondary law on condition that the realization of this power is
specified in the Act in relation to a specific competency (a specific law
defined part of the exercise of State power). In other words, the power of the Executive
to issue the regulatory standards is based directly in the Constitution, not in the
editing lawful. Statutory authority, which meets the requirements referred to in
article. paragraph 79. 3 of the Constitution, is the fulfillment of this power to the range and
content (competences).
The reason for the anchoring of this power directly in the Constitution is the fact that the
This is a key question of the separation of powers between the legislative and executive powers
in the area of norm-setting. The provisions of article. paragraph 79. 3 Constitution of the one
the side of the power of the Executive to create a derived normotvorbě and shall be as
actually its limits in relation to the Act, on the other hand, it is
This provision should be seen so that also provides protection to be able to
powerful front protiústavními action by the legislative power. Brought
as a result, if the regulatory power of the Executive was konstituována
only by the law, it would be in the direct disposal of the legislature, which would very much
the legislature itself could interfere with the powers of the authorities can
the Executive, for example, so that such a power of the Executive Branch to withdraw completely.
The concept contained in the Constitution, however, provides that the legislature in the form of
ordinary laws of this power does not, on the contrary, the Constitution only to him
confers on the option Executive empowered in a specific case to its implementation
in the form of specific competency. This competency (within the meaning of the substantive
identification of problems in the enforcement powers implemented) is then
specific executive authority shall realize on the basis and within the limits of
the law, which is to create a secondary legal standards.
In this respect, it is recalled that the Constitutional Court has already in its earlier
decisions (cf. find SP. zn. PL. ÚS 5/01, ECR,
Volume 24, no. 149; promulgated under no 410/2001 Coll., etc.)
He stated that the rules shall be subject to a constitutionally compliant
derived normotvorbě Executive: regulation must be issued to authorized
body cannot interfere with Affairs dedicated to the law, must be obvious
will the legislature to modify the above the legal standard (must be opened
space for the realm of the regulation).
However, it should be noted that these requirements in terms of the principle of separation of powers
acts ambivalentně, on the one hand, sets clear limits
Executive branch in secondary normotvorbě, on the other hand also determine
the boundaries for the legislature so that it creates a space in which-if it
what the legislature cannot arbitrarily creates a mess with it.
This provision limits the Executive on the one hand in relation to power
Legislative (is actually an expression of the constitutional principle of legitimizing function
democracy-people-and the principle of separation of powers under art. 2 (2). 1 of the Constitution),
on the other hand, it also provides executive protection before
protiústavními intervention of the legislature. In other words, the legislature is also in
relation to secondary normotvorbě Executive must stick to
constitutional limits.
If the legislature shall authorise in particular cases the Executive to perform
the law is unacceptable in terms of separation of powers, in order to then himself such
the legislation changed the subject to modification or withdrawal of competence
the adoption of the new legislation and in the form of a primary standardisation.
The legislature is otherwise, as said above, be entitled to merely establish
the Executive Branch limits for realization of secondary standardisation.
The principle of the separation of powers is that such powers of rozhraničení
sets limits as to the authorities of the Executive and legislative power. The constitutional
This Court has previously held that "the Parliament of the Czech Republic
consisting of the Chamber of Deputies and the Senate only has the power to legislate, and
any Executive. jurisdiction lacks. The only Executive
the competence of the Chamber of Deputies consists in the possibility of disciplinarian; to prosecute
its members and decide on the acceptance of their prosecution on still
nezákonodárné carries out the function of options to set up the inquiry
the Commission for the investigation of the Affairs of public interest and call options
the Government and its members. Therefore, the Chamber of Deputies shall not in any way to be able to
the Executive and Government intervention, with the exception of the recommendation on the initiative, respectively.
, etc. " (cf. SP. zn. PL. ÚS 1/2000, ECR, volume 18,
finding no. 51; promulgated under no. 107/2000 Coll.).
Terminological designation derived law is the only thing
formal, which has no explanatory power of legislative powers and
competency. The fact that prescriptions issued by the ministries and other administrative
the authorities referred to in article. paragraph 79. 3 of the Constitution shall be marked "Decree" (§ 1 (1).
2 of the Act No. 309/1999 Coll., on the collection of laws and the Collection of international
contracts), it is in terms of the scope and content of regulatory powers and
competencies irrelevant.
(C).
The issue "normative life" of the implementing legislation after
the cancellation of the enabling provisions in the relevant Act is not in theory nor
practice from the point clearly. According to one of the Access Act derogation
the law and the repeal of all legal implicite regulations issued on his
basis and to its implementation (cf.. Knapp, V.-Grospič, J.-Sheen, From:
Constitutional basics of law. Prague 1990, p. 184). A different approach
is based on the proposition that the creator himself is obliged to cancel a regulation or
change when it gets into conflict with a newly issued regulation
greater legal force (see Hendrych, d.: administrative law, the general part. Prague
1994, p. 33). And finally, there is in theory the view that, as a result of
cancellation of legal source of power decrees of ministries and other Central
public authorities, i.e.. the authorizing law, should wear off even
implementing regulations (Filip, j.: constitutional law of the Czech Republic 1.
Basic concepts and institutions. The constitutional foundations of the Czech Republic. Mu-Add-In Brno
1999, p. 254.). On the other hand, it is in theory point of view, according to which
the simple abolition of legal authorization does not end the legal life of the laws of
issued on the basis of this authorisation (Koudelka, z.: the generally binding
the Decree. Masaryk University, Brno 1998, p. 83).
Also the practice of the legislature and the Executive, and in particular the case-law of the courts does not give the
This question is completely definite answer. The Constitutional Court on this
the issue no longer alone in the past held that "the launch of the authorizing
the statutory provisions cannot be automatically cancel the Decree
issued pursuant to this authorization, unless the law expressly
indicated, so that the contested Decree remains a valid part of the Czech
the rule of law. " (PL. ÚS 3/2000, ECR, volume 18, find
No. 93; promulgated under no. 229/2000 Coll., as amended by the communication of the Constitutional Court No.
130/2001 Coll.).
In this context, can be observed also in the later case law of the Supreme
the administrative court which made the judgment of the Constitutional Court,
It is not possible to arrive at a factually informed belief about the invalidity of the
prescription only for reasons of legislative, technical, that is, just because
the original statutory authorization has been derogováno and "moved" into law
another. The basic material is the imperative, therefore, must always be completely
specific and clearly expressed as the expression of the will of the legislator. For legal
the effects of the legislation is, therefore, crucial to his mentioned material
relationship to manifest the will of the legislature (cf. judgment of the NSS SP. zn. 5 and
75/2002).
In this context, then parts of the theory and practice examined also the question
asked the applicant, so that "the absence of a new implementing regulation
the Act repealed, shall continue to apply. Because after the repeal of the law the mandate expires
the implementing regulation necessary, extinguishes the possibility to cancel such provision. " (see
Zářecký, p.: the regulatory activities of the ministries and other administrative
authorities. Administrative law No 3/96, p. 140).
(D).
From the above it follows that the question of the competence of the MINISTRY OF LABOUR to issue the impugned
the Decree should be monitored especially under the angle of the constitutional
the principle of the separation of powers. Indeed, this principle is of constitutional
aspects of the determinant and the primary compared with the structure and hierarchy
the rule of law, which is derived from the position and function of each
the power and the State authorities or organs of local self-government authorities and powers,
they are able to negotiate the individual Constitution. The hierarchy of the legal order and
the legal force of the individual laws is only a reflection of the
individual constitutional principles such as the principle of democratic
the legitimacy of State power and legitimizing function of the people, the principle of separation of powers
AJ.
The cancellation of the relevant zmocňovacích the provisions contained in § and § 275 148a
paragraph. 1 (b). (b)) of the labour code does not result in automatic
the derogation of Decree No. 19/1991 Coll., which remains even after 31.5.1994
was a valid, from the other side, however, hardly applicable, without further
i.e.. active, part of the legal order. However, it is beyond doubt that the then
the legislature will reflect efforts to edit the subject contained in the
the Decree has been integrated into the text of the law in the future (cf. the Executive
report on the draft law No. 74/1994 Coll., print no 548/93). In other words, from the
the perspective of the construction of the text of the law, which is in this case should be
to interpret the will of the legislature and revealed in the explanatory memorandum, the
the implicit command, the Executive Branch, to the appropriate implementing legislation podzákonná
Edit formálněprávně was cancelled.
If the legislature clears the relevant enabling provisions of the Act, cannot be
While talking about the fact that such a derogation is also without further
raises the formal derogation of implementing legislation, it should be
in such a situation, always examine the material assumptions of the existence and
(efficiency) of such derived legislation. Such
legislation-until formálněprávně deleted other normative
legal act-namely, a valid legal regulation, remains in its
the application is, however, account should be taken of the fact that there is missing
material assumption of action of such a regulation, that is, a specific
statutory mandate.
Just on the edge to the Constitutional Court notes that, if it is then in such
the situation of the judiciary confronted with the question whether the relevant legal
Regulation apply, must necessarily deal with the absence of material
assumptions the action of such legislation, IE. its effectiveness, and
such a provision to deny the application (article 95, paragraph 1, of the Constitution).
Decree No. 19/1991, therefore, pending the formal cancellation was carried out
Decree No. 405/2003 Coll., while valid legislation, but
legislation due to the absence of material conditions of the next
normative action (absence of legal authorization, materie adjusted above
the legal scope, etc.) was not effective and applicable law, i.e.
one that would have been eligible to produce legal effects in reality.
As regards the question of the competence of the MINISTRY OF LABOUR to cancel, you must come out of the
the fact konstatovaných from above, and in particular from the principle of
the separation of powers. From the above it follows that the MINISTRY OF LABOUR, in whose competence
falls also contained in § 9 of the repealed Decree (competence
of the Act), the powers to cancel the original Decree No. 19/1991.
possessed, without such an act had to be explicit statutory
the mandate.
Power to make laws was not founded to cancellations
the empowering provisions contained in the labour code, as speculated
the plaintiffs, but the article itself already. paragraph 79. 3 of the Constitution, in which the
reflects the constitutional principle of separation of powers. In other words, all the time
the existence of the implementing legislation has the Executive
Authority powers to change it-if this change respects the requirement
contained in the article. paragraph 79. 3 of the Constitution-and to its cancellation. Also, after the cancellation of
legal authorization to issue the implementing legislation, the competent
the regulatory authority has the powers of the Executive Branch, however, only
the powers of such a modification of derogovat, and since it was about repealing the Act.
Act without substantive content-needed legal, competence,
that affects, as indicated above, only the scope and content of such
of the Act. In fact, the legislature cannot issue authorisation to cancel
podzákonného prescription, because it is a unique sphere
the Executive, which in this case is not bound to the legislature, as the
issued on the basis of article. paragraph 79. the Constitution Act without substantive content that
could affect the legislature by simple law. And on the contrary, it would be
breach of the principle of separation of powers, if the relevant legislation contained
in the implementing regulation changed directly by the legislature.
In the present case is also supported this conclusion by the fact that the
the legislature in connection with the interference of the statutory mandate contained in
the labour code declared that edit contained in the decree is to be
part of the law, not the podzákonného of the implementing legislation
(see the explanatory memorandum to the draft law No. 74/1994 Coll.), which gave the MINISTRY OF LABOUR
an implicit instruction to the relevant decree was cancelled.
Therefore, you cannot accept the opinion of the appellants, that it is the only power
the legislature, which was entitled to the original Ordinance to cancel or to
Cancel Executive empowered. On the contrary, however, insist that the
If the legislature also considered it appropriate and effective legislation
contained in Decree No. 19/1991, it would have to renew now
incorporated directly into the text of the law.
If, in oral proceedings, the appellants have pointed out the principle of the protection of
acquired rights, the Constitutional Court adds that the question of acquired rights to
the claims will be addressed in individual disputes before
General courts.
In the light of the above, the Constitutional Court concluded that the
There are grounds for annulment of the contested legislation, and, therefore,
the proposal pursuant to section 70 para. 2 of the Act on the Constitutional Court rejected the findings.
The President of the Constitutional Court
JUDr. Rychetský v.r.
