134/2005 Sb.
FIND
The Constitutional Court
On behalf of the United States
The Constitutional Court ruled on 25 April. January 2005 in plenary in the composition of 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, JUDr. Michael April on the proposal of the regional
Court in Prague on the repeal of section 98 para. 4 of Act No. 458/2000 Coll., on the
terms and conditions of business and the performance of State administration in the energy sectors
and on amendments to certain acts (the Energy Act),
as follows:
The design of the regional court in Prague to repeal the provisions of § 98 para. 4 of the law
No. 458/2000 Coll. is rejected.
Justification
(I).
The definition of things and a recap of the proposal
The Constitutional Court was dated 17.5.2004 served by the regional court in Prague
to cancel the provisions of § 98 para. 4 of Act 458/2000 Coll., on conditions for
business and public administration in energy sectors and amending
Some laws (Energy Act), and for his conflict with the article. 11
paragraph. 4 of the Charter of fundamental rights and freedoms ("the Charter").
In proceedings in the District Court in the affirmative under SP. zn. 19 C 164/2001
the action was discussed in p. against the defendant T., s. r. o., of payment
the amount of $350. The subject of the dispute was the alleged claim of the plaintiff for the release
unjust enrichment in the amount of $9,000, which should represent a
compensation for the use of non-residential premises in the House owned by the defendants
the Prosecutor, for a period of one month. The defendant company argued that
is the holder of a licence for the establishment and operation of heat distribution equipment,
and in the object, the Prosecutor has the heat exchanger station. This heat exchange station
was put into operation in 1970, and is binding on the property as a legal
an easement. The operation of the activity that corresponds to the permission of the
easement, there is no defendant to unjust enrichment. The Court of first
instance dismissed, when he gave a right argument of the defendant
party. The Prosecutor has appealed and a regional court in Prague
the judgment of 6.11.2002 No. 30 What 351/2002-57 judgment of the Court
of first instance confirmed, as with totally identified with the legal opinions
contained in the judgment provides for.
On the basis of the constitutional complaint, the plaintiff was the judgment of the Court of appeal
cancelled finding SP. zn. I. ÚS 137/03 dated 18.11.2003 (collection of findings and
the resolution of the Constitutional Court, volume 31, finding no 135). The Constitutional Court
expressed the view that article. 1 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"),
that is a fundamental interpretative guide the activities of all bodies of State
the power of the United States, it can be inferred that, even while maintaining the (essential)
continuity with the "old law" is necessary to the interpretation and application of legal norms
to submit their content to the material. The Constitution therefore clearly
If the value is highlighted by a discontinuity with the "old (Communist) regime"
and stresses the protection of fundamental rights and freedoms of the constitutional order
Of the Czech Republic.
The Constitutional Court in the award further notes that after November 1989 has occurred in
Czechoslovakia, now in the Czech Republic, fundamental political and
economic changes. As a result has introduced a new value system
modern democratic society, whose eyes are to be interpreted and old
the legal standards, if they exist. This system provides, among other things,
proper protection of the right of ownership, which are among the fundamental human
rights. Such protection is in particular on the matter. This
not even to your own grammar of the text-or the provisions of
§ 45 para. 3 of Act No. 222/1994 Coll., on conditions for business and performance
State administration in the energy industries and the State energy
inspected, nor the provisions of § 98 para. 4 currently valid
the Energy Act, as those provisions merely provides that
permission to foreign real estate, as well as limiting their use, which
originated before the effective date of this Act, shall remain unaffected. Deduced that
heat exchanger this obligation the user has all the more that it is a
a business entity that operates a heat exchanger station for the purpose of
commercial.
A regional court in Prague after receiving the above mentioned constitutional
the Court, which was his judgment set aside, appeal proceedings the applicant
interrupted pursuant to § 109 paragraph. 1 (b). c) of Act No 99/1963 Coll., the civil
the rules of court, as amended, and pursuant to § 64 para.
3 of Act No. 182/1993 Coll., on the Constitutional Court, as amended
Regulations (hereinafter referred to as the "Act"), to the Constitutional Court with a proposal to repeal § 98
paragraph. 4 the Energy Act. The proposal argues that in the present case
heat exchange station was built on the basis of the decision on the admissibility of
the construction of 28.4.1969 and on the date of permit 7.7.1970
continuous operation. At that time, the issue in question was modified.
Law No. 79/1957 Coll., on the production, distribution and consumption of electricity
(electricity law). Pursuant to § 22 of this Act, among other things, for the construction and
operation of electrical lines and their accessories to external
real estate to the extent arising out of the construction are not allowed
energy companies are obliged to provide compensation, while the obligation to suffer
the exercise of these privileges is binding on the property as an easement.
Under section 38 of the Act elektrizačního in conjunction with § 18 of Legislative Decree No.
80/1957 Coll., implementing Act No. 79/1957 Coll., on production, divorce
and the consumption of electricity (electricity law), that the provisions
elektrizačního of the Act applies, mutatis mutandis, also to the distribution installations
heat with accessories, which means, inter alia, in the area of heat exchangers
30 m2.
After the dissolution of the Government by law No 89/1987 Coll., on production,
distribution and consumption of heat, (hereinafter referred to as "thermal law") was, according to § 20
paragraph. 4 of this Act, the same permissions energy enterprise ledger
loads váznoucími on the real estate, that is down to the
registration of real estate. While it was possible within six months from the date on which
the use of the device has been enabled, request a one-time
refund if the exercise of this permission has been significantly restricted the use
the property, which was in the possession and use of a citizen or in the personal
the use of the citizen.
Heat the law was repealed by law No. 222/1994 Coll., on conditions for
business and public administration in energy sectors and on State
energy inspection. Pursuant to § 45 para. 3 this Act permission to
foreign real estate, as well as limiting their use, which was created before the
effect of this Act, shall remain unaffected. This Act has been cancelled
now a valid Energy Act, which in its article 98 para.
4 the text of section essentially took over 45 para. 3 of Act No. 222/1994 Coll.
A regional court in Prague from the above development concludes that under the applicable
legal provisions, it is possible to heat the station in question taken as a
free of charge established by the easement. Taking into account the above
the opinion of the Constitutional Court, this restriction must be considered to be inconsistent with the
article. 11 (1) 4 of the Charter, according to which such compulsory restrictions
of property rights is possible only in the public interest, on the basis of
the law, and for compensation. If, pursuant to section 98 para. 4 the Energy Act
permission to foreign real estate, as well as restrictions on their use, which
originated before the effective date of this Act, shall remain unaffected, then by
the logical and grammatical interpretation remains in the opinion of the District Court in
Prague and permissions intact, free of charge to use a foreign property for
the operation of equipment for heat distribution, thus in that form, as was
originally established. If the provisions of section 98 of paragraph 1. 4 energy
the law, it would be imposing an obligation to pay compensation to the owner of the property
under the restrictions of his ownership of the operation of a device for the distribution of
heat in contravention of this provision.
A regional court in Prague, therefore, proposes that the Constitutional Court finding the provisions
§ 98 para. 4 the Energy Act set aside for its conflict with article. 11
paragraph. 4 of the Charter.
II.
Recap the essential parts of the representation of the parties
The constitutional court proceedings in accordance with the provisions of section
69 of the Act to the parties-the Chamber of Deputies and the Senate
Of the Czech Republic.
The Chamber of Deputies indicated that the motive of the takeover of the contested legal
the provision which is materially identical with a previous editing according to § 45
paragraph. 3 of Act No. 222/1994 Coll., was to keep the legal continuity in
cases previously assigned permissions to the production and distribution of electrical power
power, gas and heat. Considers that the contested statutory provisions with
the subject of the dispute, which is the obligation to pay the remuneration for the forced restriction
of property rights, is not related to and from the owner of the real estate
get the protection of their ownership rights. Therefore, the proposal is not considered
reasonable grounds.
The Senate said that the lack of legal provisions with article 2(1) of the contested. 11 (1) 4
Of the Charter in his debate before the adoption of the resolution on the draft of the law was not
supported by the argument, and the Constitutional Court in its decision, SP. zn. (I).
TC 137/03 did not find such a contradiction. Otherwise, against the proposal of this Act
sounded critical comments. Concerning the first, the fragmentation of the mode
refunds in the context of time series gradually adopted legal provisions,
the appropriateness of the lump-sum compensation to derived from the factual burden and to
the obligation of the owner to carry out the work in connection with the maintenance of
energy devices in protection zones at their own expense.
The generalization of these complaints led to the rejection of the application of this Act.
III.
The diction of the contested statutory provisions
The provisions of § 98 para. 4 the Energy Act reads as follows:
"(4) permission to foreign real estate, as well as limiting their use,
which arose before the effective date of this Act, shall remain unaffected. "
IV.
The conditions of the locus standi of the applicant
Application for annulment of the provision of section 98 para. 4 the Energy Act has been filed
The regional court in Prague in connection with his decision-making activities
(the management led by that Court under SP. zn. 30 What 351/2002) according to the article. 95
paragraph. 2 of the Constitution, and therefore in accordance with the conditions contained in the provisions of §
64 para. 3 of the Act. In the case on the side of the applicant can therefore
clear fulfillment of locus standi.
In the.
The constitutional conformity of the legislative process
The Constitutional Court is in accordance with the provisions of § 68 para. 2 of the Act on the procedure for
check the law or other legislation shall assess whether
the contested act was adopted and issued by the constitutionally prescribed way.
From the printing house of the third legislative term 535 Chamber of Deputies
The Constitutional Court found that the energy law proposed by the Government, which
the provisions of § 98 para. 4 not to give. Of the resolution of the economic
Committee of 44. the meeting, held the date published: 6.9.2000, the Constitutional Court found that the
It was recommended that the discussion and approval of the draft law with the EP amendments,
the proposals, which, however, did not concern the provisions of § 98 para. 4. By resolution of the
The Chamber of deputies from 27. the meeting of the third term, June
21.9.2000, was ratified with the Government's proposal to the Energy Act,
in the text of the approved amendments. In the voting sequence number
212 of the 185 members was 144 for, 21 against.
By resolution of the Senate's Committee for European integration of 38. the second meeting
the term of Office held 11.10.2000, recommended the approval of the law
in the text of a transferred the Chamber of Deputies. The Committee of the Senate
economy, agriculture and transport to its 53. the meeting, held the day
24.10.2000, recommended to return the Bill to the Chamber of Deputies with the
amendments. The amendments, however, did not concern the provisions of §
paragraph 98. 4. The Senate resolution of 22. meeting of the second term of Office,
25.10.2000, the June draft of the Energy Act has rejected. From voting
# 42, shows that for the rejection of the Bill was from the present 51
the senators were 34 for, against 8.
By order of the Chamber of deputies from 29. the third meeting of the parliamentary term,
June was rejected by the Senate, 28.11.2000 draft Energy Bill
approved. # 29 from the vote that the Bill was of 195
136 MPs, against 26.
The President signed the law, the Prime Minister was served 13.12.2000 for signature
15.12.2000, and promulgated in the collection of laws was 29.12.2000, in the amount of 131
under Act No. 458/2000 Coll.
The Constitutional Court notes that the energy law was adopted by the constitutional
in the prescribed manner.
Vi.
The content of the contested provisions compliance with the constitutional order
The contested provisions of § 98 para. 4 energy bill is a provision
that preserves the continuity of permission to foreign real estate, as well as
restrictions on their use, which arose before the effective date of this Act. It comes
of the provisions affecting private law relations, for which in General
applies the principle of non-retroactivity. This principle so far (except for a slight
based on the provisions of all exceptions) civil laws, which have been
accepted on our territory after the dissolution of the General Civil Code of
1811. The emergence of legal relations, as well as claims arising from them before
effect of the new legislation are therefore fundamentally be judged according to the laws of the
force at the time of their creation. From this point of view, the contested provision
not a standard solution of comparable issues and this way
in any case, laws cannot be regarded as inconsistent with the constitutional
policy. In the case of rights to things like in this case, then any
interference with these rights, which are not based on the free decision of the wearer
rights or law, constitutionally souladný would be a violation of the right to
property, which is enshrined in article. 11 of the Charter.
The appellant its proposal to repeal the provisions of § 98 para. 4 energy
the law relies on the findings of the Constitutional Court SP. zn. I. ÚS 137/03, dated
18.11.2003. Based on from the case that is decided by. In it, the point is,
in 1969, on the basis of the decision on the admissibility of the project was in this
the construction of the built facilities for the distribution of heat-heat exchange station. According to the
If a valid edit was called. legal easement, which puts a strain on
the subject construction to the present day. The existence of this easement
the permissions of the operator free of charge use of heating plants
equipment for heat distribution and outdated building owners could not affect the
no change to elektrizačního of the Act, on the basis of which it was established, and
even today, according to the applicable legislation. From the above-mentioned award
The Constitutional Court, the applicant concludes that the royalty-free this restriction
of property rights is in breach of article. 11 (1) 4 of the Charter, since the forced
restriction of ownership rights is possible only for the replacement.
It should be pointed out that from a quoted constitutional court
It does nothing of the sort. On the contrary, the Constitutional Court considers that the existence of
statutory easements, which arose under the previous legal
modifications as a legitimate. After all, if such opinion did not share, he would himself
proceed in accordance with § 64 para. 1 (b). (c)) of the Act and to propose the cancellation of
the provisions of § 98 para. 4 the Energy Act. Chamber of the Constitutional Court
only deduced that burdens the free use of the heat exchange stations
the property owner so much that he cannot reasonably be required to
such an interference with his right of ownership was free.
The appellant argues that if, pursuant to section 98 para. 4 energy
the law remain permission to foreign real estate, as well as the limitations of their
use, which arose before the effective date of this Act, maintain and
unaffected, then by logical and grammatical interpretation remains intact
and free of charge, permission to use a foreign property for the operation of the device
for heat distribution, in that form, as it was established. This suggests that the
cannot be constitutionally Conformal manner to interpret the impact of the contested provisions
so that, while maintaining the liens incurred under the previous
editing, especially in the period of communism, it was possible to successfully claim
holders of permission from such easement of any cash
the performance.
The Constitutional Court does not share such a view. On the one hand, the fact remains
that the establishment of easements on the basis of the law is (and has always
was) compensation for restriction of property rights was conceived as a replacement for
lump sum, payable in the time limits laid down by law, who is
the owner of the property on which the new easement is binding. This can be
inferred from earlier today force price laws. And according to section 22 para. 2
the second sentence of elektrizačního of the Act (as well as subsequent
the laws in this area) could, within three months from the date when the work was
put into permanent operation (use), the owner or user of the
the property, which was not in the State Socialist ownership, asking,
to give him the energy undertaking a reasonable one-time refund,
If the establishment of the leadership was substantially limited in the use of the property.
Free of charge, therefore, it was possible to establish an easement only where it was
the property owned by the State. It was logical, since there was no reason to
State compensation itself. If such a thing was after 1989
privatized, then the purchaser has obtained with this load and in relation to the
You cannot talk about it, that this load was free of charge. It was
on the new licensee, as one of the parties, to include the
such a load in the prices for the transferred assets.
Easements established by law (that is, not only by the energy
the law) have a specific mode, modified by public legislation
the basis of which it was established. Even if they have an undeniable public element
the manner of their creation and purpose, which can be used, cannot be ignored,
that they also have significant private element. Civil law defines the substantive
the burden of proof as the right of someone other than the owner of the things that it restricts the
so, that is obliged to suffer something, to refrain from something, or something to take place. The so-called.
statutory easements also have this character. Indeed, the laws
which arise, is this term indicate. Their scheme, however, is not completely
identical to the mode of the easements, as they are governed by special
by modifying the laws governing the activities of the
the operation originated. But this is not about editing complex, which would exclude
the use of General editing of civil law about the factual burdens. Therefore, if the
These special rules do not have a special regime is governed by their mode of
General arrangements for civil.
On the issue is also to be seen under the principle of a false
retroactive. According to this principle the rights and obligations arising from the
set up by the easement rather than legislation, on the basis of
was established, but from the current legal provisions, the statutory liens.
If the current special provisions of statutory easements do not regulate the
compensation related to their performance, you must use the edit
private law. The provisions of § 151n para. 3 of Act No. 40/1964 Coll.,
the civil code, as amended, it is clear that the holder
permission of the easement is obliged to bear the reasonable costs of the
maintaining (maintaining) the loaded material burden and its repair.
In principle, therefore, you cannot use the easement completely free of charge, but for a fee,
that includes expenses associated with the maintenance of things and its repair.
If this cost is not justified from the easement, gets by
unjust enrichment, because it was paid by the owner of the matter what
After the law had to pay myself. Determination of the specific form of this remuneration is
in so doing, the things the agreement entitled to a statutory easement of right in rem
burden. If the agreement does not, on a proposal from one of them obliged to
This ruling by the Court.
In the case under consideration, therefore, can be constitutionally Conformal way to unload
contested statutory provisions, and in accordance with the opinion expressed by the
Constitutional Court SP. zn. I. ÚS 137/03. Having regard to all the
Therefore, the reasons given by the Constitutional Court for annulment of section 98 para. 4
the Energy Act has rejected.
The President of the Constitutional Court:
JUDr. Rychetský in r.
