In The Matter Of An Application For Annulment Of The Decree No 405/2003 Coll.

Original Language Title: ve věci návrhu na zrušení vyhlášky č. 405/2003 Sb.

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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.

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